Filed 6/10/22 P. v. Coker CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Stephen D. Schuett, Judge.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In 2017, a jury convicted appellant Ricky Lee Coker of four crimes involving the same victim: two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1);[1] counts 1 & 2); making a criminal threat (§ 422; count 3); and intimidating a witness (§ 136.1, subd. (b)(1); count 4). The jury found true that appellant used or threatened to use force in count 4 (intimidating a witness/§ 136.1, subd. (c)(1)).

In count 1 (assault with a deadly weapon), the trial court imposed an upper term of four years, which was doubled because of a prior strike. In count 4 (intimidating a witness), the court imposed a consecutive full midterm of three years, which was doubled. Appellant received a consecutive five-year enhancement for a prior serious felony (§ 667, subd. (a)(1)), along with four consecutive one-year prior prison enhancements (§ 667.5, subd. (b)). Appellant’s aggregate prison term was 23 years.[2] The court imposed various assessments and a restitution fine.

In July 2020, we issued an opinion in which we vacated appellant’s sentence and we remanded for resentencing. We directed the trial court to strike the enhancements imposed under section 667.5, subdivision (b).[3] We further directed the court to exercise its discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), which amended sections 667 and 1385 to provide trial courts with discretion to strike five-year sentencing enhancements (§ 667, subd. (a)(1)). In exercising its sentencing discretion, we directed the court to take into consideration appellant’s conduct in custody after the original sentencing hearing. (See People v. Warren (1986) 179 Cal.App.3d 676, 687.) Following resentencing, the court was directed to issue a new abstract of judgment and forward it to the appropriate authorities. In all other respects, we affirmed appellant’s judgment.[4] (People v. Coker (July 17, 2020, F077092) [nonpub. opn.].)

In October 2020, the trial court resentenced appellant. As respondent concedes, however, neither appellant nor his legal counsel were present when the court issued a new sentence. In fact, the prosecution was also absent when the court resentenced appellant. In count 1 (assault with a deadly weapon), the court again imposed the upper term of four years, which was doubled, and the court imposed a consecutive five-year enhancement for a prior serious felony (§ 667, subd. (a)(1)). In count 4 (intimidating a witness), the court again imposed a consecutive full midterm of six years. The court struck the four one-year prior prison enhancements (§ 667.5, subd. (b)). Appellant received an aggregate prison term of 19 years. The court filed a minute order memorializing its hearing.[5]

The parties agree, as do we, that this matter must be again remanded for a resentencing in which appellant has the right to be physically present with the assistance of legal counsel. When appellant is resentenced, the trial court shall exercise its discretion in conformity with our prior opinion. In addition, we agree with the parties that the court shall also consider the retroactive changes brought about by recent enactments.[6] Finally, the court shall recalculate appellant’s custody credits and issue a new abstract of judgment. We remand for resentencing but otherwise affirm the judgment.

BACKGROUND

Appellant’s felony convictions occurred after he attacked and beat his brother’s girlfriend. On the night in question, appellant had been ingesting methamphetamine with his brother and his brother’s girlfriend. The brother left around 1:00 a.m. to buy some food. It was then when appellant attacked the victim. Appellant struck the victim’s head four or five times with a stepstool. He took and kept her cell phone. He threatened her with a knife, saying he would “gut” her and cut her throat if she called the police or if the police came around. He punched her with the hand holding the knife. (People v. Coker, supra, F077092.)

DISCUSSION

I. We Grant Respondent’s Request for Judicial Notice.

In April 2022, respondent filed a request for judicial notice with this court, asking us to notice our own records in case No. F077092. On April 27, 2022, we deferred ruling on this request and granted appellant leave to file an informal response. That same day, appellant filed an informal response not opposing the request. Because respondent’s request involves our own records, we hereby grant the request for judicial notice. (Evid. Code, § 452, subd. (d) [judicial notice may be taken of any court records].)

II. Resentencing Is Required and Appellant has the Right to be Present with the Assistance of Legal Counsel.

A defendant has a statutory right to be present when sentenced. (§ 977, subd. (b)(1).) Absent a valid waiver, a defendant shall be personally present when judgment is pronounced. (§ 1193, subd. (a).) Our Supreme Court has held that, when a criminal matter is remanded with directions, section 1260 requires the presence of the defendant and his counsel on remand at the first occasion wherein the trial judge will consider whether to exercise his sentencing discretion in defendant’s favor. (People v. Rodriguez (1998) 17 Cal.4th 253, 258.)

In our prior opinion, we directed the trial court to strike the four one-year enhancements which had been imposed under section 667.5, subdivision (b). (People v. Coker, supra, F077092.) Accordingly, a full resentencing was required. When “part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ [Citations.]” (People v. Buycks (2018) 5 Cal.5th 857, 893.)

Respondent impliedly acknowledges that no valid waiver from appellant appears in this record, and respondent concedes that appellant suffered prejudice.[7] We agree with the parties that error occurred. The trial court pronounced a criminal sentence against appellant without his physical presence, and without the presence of his legal counsel. Because he was excluded from the sentencing hearing, appellant was unable to raise issues for the trial court to consider regarding the appropriate sentence. Moreover, the court failed to update appellant’s custody credits or issue an amended abstract of judgment reflecting that the four one-year enhancements had been stricken. It is reasonably probable that input from appellant and his counsel would have resulted in a more favorable outcome for appellant. (People v. Rocha (2019) 32 Cal.App.5th 352, 360; see also People v. Watson (1956) 46 Cal.2d 818, 836 [setting standard to review prejudice for state law error].) Accordingly, we again vacate appellant’s sentence and remand this matter for resentencing. The trial court shall ensure that appellant has an opportunity to be physically present when resentencing occurs, and appellant shall have the assistance of legal counsel.

III. At Resentencing the Trial Court shall Consider Recent Changes in Law and Update Appellant’s Custody Credits.

The parties agree, as do we, that recent changes in the law retroactively apply to appellant. These changes appear in Senate Bill 567; Assembly Bill 124; and Assembly Bill 518.

First, Assembly Bill 124 and Senate Bill 567 made amendments to section 1170, subdivision (b). A sentencing court may now not impose a prison sentence exceeding the middle term unless the facts supporting the aggravating circumstances are (1) established by the defendant’s stipulation to them, (2) proven to a jury (or to a court, if jury is waived) beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified record of conviction. (§ 1170, subd. (b)(1)–(3).) Senate Bill 567 also added a provision that requires a sentencing court to impose the low term if the defendant’s psychological, physical, or childhood trauma was a contributing factor in the commission of the offense, “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice.” (§ 1170, subd. (b)(6).)

Lastly, Assembly Bill 518 amended section 654, subdivision (a). Previously, a sentencing court was required to impose a sentence that provided for the longest potential term of imprisonment, and execution of other terms would be stayed. (People v. Mani (2022) 74 Cal.App.5th 343, 379.) Under this change in law, section 654 now gives a trial court discretion to impose and execute the sentence of either term, which could result in imposition and execution of a shorter sentence, rather than a longer sentence. (People v. Mani, supra, at p. 379.)

We agree with the parties that, because appellant’s case is not yet final on appeal, he benefits from these changes in law. (In re Estrada (1965) 63 Cal.2d 740, 744–745 [absent evidence of contrary legislative intent, ameliorative criminal statutes apply to all cases not final when the statute takes effect].) Thus, when appellant is resentenced, the trial court shall exercise its discretion under Senate Bill 567, Assembly Bill 124 and Assembly Bill 518.

Finally, section 2900.1 requires the trial court to recalculate appellant’s actual custody credits when he is resentenced. (People v. Buckhalter (2001) 26 Cal.4th 20, 23.) We will direct the trial court to do so. At the completion of resentencing, the court shall provide a new abstract of judgment to the appropriate authorities.

DISPOSITION

Appellant’s sentence is vacated and this matter is remanded for full resentencing. Appellant shall have the right to be physically present when he is resentenced, and he shall be assisted by legal counsel. At resentencing, the trial court shall strike the enhancements imposed under section 667.5, subdivision (b). The court shall also exercise its discretion under Senate Bill 1393 regarding the five-year enhancement under section 667, subdivision (a)(1). In exercising this discretion, the court shall take into consideration appellant’s conduct in custody after the original sentencing hearing. The court shall also consider Senate Bill 567, Assembly Bill 124 and Assembly Bill 518. The court shall recalculate appellant’s custody credits. Following resentencing, the court shall forward a new abstract of judgment to the appropriate authorities. In all other respects, appellant’s judgment is affirmed.

* Before Levy, Acting P.J., Franson, J. and Meehan, J.

[1] All future statutory references are to the Penal Code unless otherwise noted.

[2] In count 2 (assault with a deadly weapon) and count 3 (criminal threat) the court imposed upper terms (doubled because of the prior strike), but these sentences were stayed pursuant to section 654.

[3] Following Senate Bill No. 136 (2019-2020 Reg. Sess.) it is undisputed that none of appellant’s four prior prison terms qualify as sentencing enhancements under section 667.5, subdivision (b), because his prior prison terms were not for a sexually violent offense.

[4] In our prior opinion, the majority rejected appellant’s claim that he suffered constitutional harm based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Justice Meehan concurred with the majority regarding all claims, but she dissented on the Dueñas issue. (People v. Coker, supra, F077092 (conc. & dis. opn. of Meehan, J.).)

[5] As appellant notes in his opening brief, it does not appear that the trial court ever sent an amended abstract of judgment to correctional authorities. In March 2021, appellant filed with this court a petition for writ of habeas corpus seeking leave to file a late appeal based on a showing of good cause. In August 2021, we granted appellant’s petition. (In re Ricky Lee Coker (Aug. 19, 2021, F082462) [nonpub. opn.].)

[6] The three recent enactments which the trial court shall consider at resentencing are: (1) Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567); (2) Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124); and (3) Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518). We discuss these changes in greater detail later in this opinion.

[7] In addition to a statutory violation, appellant argues that his constitutional rights were infringed. We need not, however, address the constitutional challenges. Because statutory error occurred, it is unnecessary to reach the constitutional issues. (People v. Duarte (2000) 24 Cal.4th 603, 610.)