Filed 12/7/18 P. v. Smith CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Kazuharu Makino, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Respondent.

* * *

This is the third opinion we have issued in this case. In 1998, in case No. G020521, we affirmed defendant Scott Anthony Smith’s 1996 judgment of conviction for possession of methamphetamine for sale and the transportation of methamphetamine in violation of Health and Safety Code sections 11378 and 11379. Because defendant had suffered five prior burglary convictions, he was sentenced to 25 years to life under the “Three Strikes” law. (Pen. Code, §§ 667, subds. (b)-(i); 1170.12; all further undesignated statutory references are to the Penal Code.)

In 2015, in case No. G048790, we affirmed the trial court’s denial of defendant’s petition under section 1170.126 (Proposition 36) to have his original sentence recalled and to be resentenced as a second strike offender. The court denied the petition after determining defendant was not entitled to relief because he had committed violent acts while incarcerated and thus presented a danger to the public.

In the present appeal, defendant’s counsel asks this court to conduct an independent review of the record in accordance with People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, after the trial court ruled his felony offenses were not reducible to misdemeanors under section 1170.18 (Proposition 47). Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. Defendant was given 30 days to file written argument in defendant’s own behalf. That period has passed, and we have received no communication from defendant.[1]

The trial court’s order states: “[Health and Safety Code section] 11378 is not eligible offense.” Indeed, section 1170.18, subdivision (a), states: “A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.” The offenses for which defendant was convicted in 1996 are not included under this section.

In defendant’s appellate brief, counsel asks this court to consider whether or not defendant had a right to be present at the time the trial court decided his petition to have his convictions reduced to misdemeanors. The record on appeal indicates there were no appearances or proceedings in open court on the date the court considered and denied defendant’s petition for resentencing, and that the court made its ruling in chambers.

“A defendant has a right to be present at critical stages of a criminal prosecution . . . .” (People v. Wilen (2008) 165 Cal.App.4th 270, 286.) “‘A criminal defendant’s right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution, as well as by article I, section 15 of the California Constitution and by sections 977 and 1043 of the California Penal Code. [Citations.] A defendant, however, “does not have a right to be present at every hearing held in the course of a trial.” [Citation.] A defendant’s presence is required if it “bears a reasonable and substantial relation to his full opportunity to defend against the charges.” [Citation.]’ [Citations.] ‘Sections 977 and 1043 do not require the defendant’s presence, or a written waiver, unless that standard has been met. [Citations.]’ [Citation.] ‘The defendant must show that any violation of this right resulted in prejudice or violated the defendant’s right to a fair and impartial trial.’” (People v. Wallace (2008) 44 Cal.4th 1032, 1052.)

Under the circumstances we find in this record, we cannot conclude defendant’s presence was required since the court’s in-chambers analysis of defendant’s petition did not bear a reasonable and substantial relation to his full opportunity to defend against the charges against him. Nor is there any indication defendant was prejudiced or that his right to a fair and impartial trial was violated.

We have examined the record and found no error or other arguable issue. (People v. Wende, supra, 25 Cal.3d 436.) The judgment is affirmed.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.