P. v. Jones
Filed 11/8/13 P. v. Jones CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ELLIS T. CALIFORNIA JONES III,
Defendant and
Appellant.
H039272
(Santa Clara
County
Super. Ct.
No. CC637132)
Defendant
Ellis T. California Jones III appeals after he was resentenced following a
prior appeal.
title="">[1] At the resentencing
proceeding, which was conducted without defendant or a defense attorney
present, the trial court reduced the previously-imposed prison term by eight
months, and it reduced the amount of
victim restitution by $400.
Defendant,
who had represented himself in the earlier trial proceedings, contends the
trial court erred by conducting the resentencing proceeding without him or the
presence of an attorney on his behalf.
For reasons that we will explain, we will affirm the judgment.
Background
A. Trial Proceedings
After defendant robbed people in four separate criminal episodes, a
jury convicted him of four counts of second
degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)),
one count of attempted second degree robbery (§§ 211, 212.5, subd. (c), 664),
one count of false imprisonment by violence (§ 237, subd. (a)), and four
counts of assault with a stun gun or taser (§ 244.5, subd. (b)).
The trial court sentenced defendant to 11 years and four months’
imprisonment, imposing consecutive terms for all counts except for count 5 (one
of the assault convictions). The trial
court ordered defendant to pay victim restitution (§ 1202.4, subd. (f)) of
$3,195, which included $400 to compensate one victim for the loss of his
cellular telephone.
Defendant represented himself at trial and at sentencing. (See Faretta v. California (1975) 422
U.S. 806 (Faretta).)
B. Prior Appeal
In his prior
appeal, defendant claimed that the trial court violated section 654 by separately
punishing him for certain of his convictions.
He also pointed out that the abstract of judgment reflected a concurrent
term for count 5 rather than a section 654 stay, which the trial court had
orally imposed. Finally, he disputed the
amount of victim restitution, pointing out that one of the victims had
recovered his cell phone, for which the trial court had ordered defendant to
pay $400.
This court
issued an opinion in defendant’s prior appeal on August 17, 2012. (
court found no substantial evidence to
support the trial court’s determination that count 3 (one of the false
imprisonment counts) was separately punishable and thus that it should have
been stayed under section 654. This
court also agreed that the abstract of judgment should have reflected
the orally-imposed section 654 stay for count 5. Finally, this court determined that the
record was silent
regarding whether the victim’s cell phone had been returned in the same
condition in which defendant took it from him, and that the matter should be
remanded for a hearing on that issue.
The
dispositional order in defendant’s prior appeal provided: “The case is remanded to the trial court for
resentencing proceedings. First, the sentence
for false imprisonment is to be stayed pursuant to Penal Code section 654. Second, the trial court is to determine
whether it must modify its restitution order regarding the cellular telephone
of one victim for the reasons stated in this opinion or for any other reason
that may become apparent. Third, for the
reasons stated herein—including, beyond the directions in the first two items
noted in this disposition, the need for administrative correction regarding
count five—the trial court is directed to prepare an amended abstract of
judgment and forward a certified copy of it to the Department of Corrections
and Rehabilitation. In all other
respects, the judgment is affirmed.†(People v. Jones (Aug. 17, 2012, H036831) [nonpub. opn.].)
C. Defendant’s Request to Be Present
On November 5,
2012, defendant sent a letter to the trial court from prison. He noted that he represented himself “in
propria persona†and that he understood there would be “a rehearing of issues
related to†his case. Defendant
requested “personal appearance at this rehearing.â€
On November 15,
2012, the trial court sent a letter back to defendant. The court noted that his request had been
received and that it would be “placed in [his] file with no further
action.†The court’s notice stated,
“Your appeal was affirmed. Therefore,
there is no need for a hearing.â€
D. Resentencing
On November 30,
2012, the trial court modified defendant’s sentence in accordance with our
dispositional order. The prosecutor was
present during the proceedings, but the trial court noted that defendant was
“in prison, so he is not here.â€
The trial court first
addressed the section 654 issues. Referring
to this court’s holding that count 3 “was in fact a [section] 654 matter,†the
trial court ordered that the punishment for count 3 be stayed. The trial court also reiterated its prior
order that count 5 be stayed pursuant to section 654, noting that “the abstract
didn’t reflect that.â€
The trial court
then addressed the restitution issue, asking the prosecutor if she had been
“able to determine if there was anything wrong with the cell phone?†The prosecutor indicated she did not believe
there had been any evidence of damage to the cell phone at trial, and that the victim
had not responded to her request for information. The trial court therefore “set aside the $400
restitution order for the cell phone.â€
The trial court
issued an amended abstract of judgment, reflecting that counts 3 and 5 were
stayed pursuant to section 654 and that $400 of the restitution order was “set
aside and vacated.†The total term
imposed after resentencing was ten years eight months.
Discussion
Defendant contends the trial court erred by conducting
the resentencing proceeding without his presence—since he had represented
himself in the earlier trial proceedings—and without representation by counsel. He contends that the error violated his
rights under the Sixth Amendment and
that it is reversible per se.
Respondent does not directly address the
question whether defendant should have been present or represented by counsel
at the resentencing proceeding. Respondent
simply argues that defendant cannot show that he was prejudiced, “[g]iven that
the trial court followed the directions of this Court in amending the abstract
of judgment to reflect the proper sentence on count five, and staying his
sentence on count three pursuant to section 654, and then completely striking
the $400 restitution fine.â€
A. Right
to Counsel at Resentencing Proceedings
“The Sixth Amendment right to the assistance of
counsel applies at all critical stages of a criminal proceeding in which the
substantial rights of a defendant are at stake.
[Citation.]†(People v.
Crayton (2002) 28 Cal.4th 346, 362 (Crayton),
citing Mempa v. Ray (1967) 389 U.S.
128, 134 (Mempa); see United
States v. Wade (1967) 388 U.S. 218, 227 [Sixth Amendment requires “presence
of counsel at . . . critical confrontationsâ€].) “The right to counsel may be waived by a
defendant who wishes to proceed in propria persona. [Citation.]†(Crayton,
supra, at p. 362, citing Faretta, supra, 422 U.S. at p. 807.) It is well settled that sentencing is a
critical stage of criminal proceedings. (See
People v. Doolin (2009) 45 Cal.4th 390, 453.)
However, a resentencing
proceeding is not necessarily a “critical stage[] of a criminal proceeding in
which the substantial rights of a defendant are at stake.†(Crayton,
supra, 28 Cal.4th at p. 362; see Bell v. Cone (2002) 535 U.S. 685, 695-696
[“ ‘a critical stage’ †means “a step of a criminal proceeding†that
holds “significant consequences for the accusedâ€].) The Sixth Amendment’s right to counsel
guarantee applies only to “trial-like confrontationsâ€â€”i.e., events in which “the
accused required aid in coping with legal problems or assistance in meeting his
[or her] adversary.†(United States
v. Ash (1973) 413 U.S. 300, 312, 313.)
Federal courts have held that there is no right
to counsel (and thus no right to self-representation) at a resentencing
proceeding where the trial court’s only duty is to perform a “ ‘ministerial
act.’ †(Hall v. Moore (11th
Cir. 2001) 253 F.3d 624, 627; see also Jackson
v. Miller (7th Cir. 2001) 260 F.3d 769, 776 [no right to counsel where
subsequent proceeding is a “ ‘mere formality’ â€], quoting
Amendment right to counsel at a resentencing proceeding if, due to a successful
appeal or post-sentencing motion, “the entire sentencing package was set asideâ€
and the trial court has “the discretion to ‘reconstruct the sentence.’ [Citation.]†(Hall v. Moore, supra, at p.
628.)
At a
resentencing involving the “entire sentencing package,†the right to counsel is
necessary to ensure that “the defendant has an
opportunity to challenge the accuracy of information the sentencing judge may
rely on, to argue about its reliability and the weight the information should
be given, and to present any evidence in mitigation he [or she] may have. [Citations.]â€
(United States
v. Jackson (11th
Cir. 1991) 923 F.2d 1494, 1496-1497.) But where the trial court must impose a lower
sentence after a successful post-sentencing motion or appeal, “this necessary
process has already occurred. . . . In
constitutional terms, a remedial sentence reduction is not a critical stage of
the proceedings . . . .†(
In this case, defendant’s prior appeal did not
result in the vacating of the “entire sentencing package.†(United States v. Jackson, supra, 923 F.2d at p. 1497.) Although this court’s dispositional order
directed the trial court to conduct “resentencing proceedings,†the order
specified that the proceedings were limited to three specific matters: imposition of a stay of count 3, a correction
of the abstract to reflect a stay of count 5, and a possible striking or
reduction of a portion of the restitution order. (People v. Jones (Aug. 17, 2012, H036831) [nonpub. opn.].) Thus, at the resentencing proceeding, the trial court did not have “the discretion to ‘reconstruct the
sentence.’ [Citation.]â€
(Hall v. Moore, supra, 253 F.3d at p. 628.) Rather, the trial court was required to reduce defendant’s original
sentence. (See United States v. Jackson, supra, at p. 1497.)
With respect to the section 654 stays on counts 3 and 5, the trial
court was required to perform a “ ‘ministerial act’ †at the resentencing
proceeding. (Hall v. Moore, supra,
253 F.3d at p. 627.) In light of our
disposition in defendant’s prior appeal, the trial court’s imposition of the section
654 stays was “a ‘mere formality.’ †(See Jackson v. Miller, supra, 260 F.3d at p. 776, quoting
at the resentencing proceeding despite the fact that defendant was not represented
by counsel nor representing himself in pro per.
With respect to the victim restitution, the trial
court was not ordered to perform a “ ‘ministerial act,’ †but the
trial court also did not have “the discretion to ‘reconstruct the sentence.’ [Citation.]†(Hall v. Moore, supra, 253 F.3d
at pp. 627, 628.) In defendant’s prior
appeal, this court found no substantial evidence to support $400 of the victim
restitution. Instead of striking $400
from the restitution order, this court ordered the trial court to “determine whether it must modify its restitution
order regarding the cellular telephone of one victim for the reasons stated in
this opinion [i.e., because there was no evidence of economic loss] or for any
other reason that may become apparent.†(
court to reduce the restitution order by $400 unless the prosecution had
additional evidence supporting that particular economic loss. The trial court was not ordered to conduct a
full rehearing regarding restitution, and it did not have discretion to impose
a “more onerous†restitution amount.
(See United States v. Jackson, supra, 923 F.2d at p. 1497.) Nevertheless, we will assume that defendant
should have been permitted to represent himself or have counsel present on his
behalf at the restitution portion of the resentencing proceeding. (See United States v. Marks (9th Cir.
2008) 530 F.3d 799, 813 (Marks) [assuming,
without deciding, that entry of restitution order without pro per defendant’s
presence violated his statutory or constitutional rights].)
B. Standard
of Reversal
Even assuming that there was a Sixth Amendment error
here with respect to the restitution portion of the resentencing proceeding, we
would further conclude that reversal is not required. We disagree with defendant’s claim that such
an error would be reversible per se.
Rather, as the Attorney General asserts, defendant must show prejudice.
“[N]ot all constitutional violations amount to
249, 256.) “Sixth Amendment violations
that pervade the entire proceeding†are structural errors that are reversible
per se. (Ibid.) However, where the Sixth Amendment violation
is more limited in nature and “a reviewing court can make an intelligent
judgment†about whether the error might have affected the outcome, harmless
error analysis is appropriate. (
The Ninth Circuit applied a harmless error
analysis to the ex parte imposition of a victim restitution order in Marks,
supra, 530 F.3d 799. In
represented himself at trial, but he was not present when the trial court
imposed a victim restitution order. The
Ninth Circuit assumed, without deciding, that it was error to impose the
restitution order ex parte, but found that “any such violation was harmless
error.†(Id. at p. 813.) The court
found no prejudice, since the defendant had been provided with the Government’s
proposed restitution amount, had filed a written objection to that amount, and “fail[ed]
to explain what objections to the calculation of the restitution amount he
could have made that he did not already make in his written objection.†(Ibid.)
In this case, defendant has made no attempt to
explain how he would have benefitted from being present or having counsel at
the resentencing proceeding. (See Marks,
supra, 530 F.3d at p. 813.) Assuming
he should have been present to represent himself or have been represented by
counsel, he suffered no prejudice. As ordered
by this court, the trial court imposed the section 654 stays on counts 3 and 5,
and it set aside the challenged $400 in victim restitution. Thus, the error was harmless beyond a
reasonable doubt. (See
18, 24.) Remand for another resentencing
proceeding is unnecessary and would not produce a different result.
Disposition
The judgment is affirmed.
___________________________________________
Bamattre-Manoukian, ACTING P.J.
WE CONCUR:
__________________________
Márquez, J.
__________________________
GROVER, J.
name="_ftn1" title=""> [1]
Pursuant to defendant’s request, we have taken judicial notice of the record in
his prior appeal. (People v. Jones (Aug. 17,
2012, H036831) [nonpub. opn.].)
Further unspecified statutory references are to the Penal Code.
