Filed 3/28/16




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                         G050481

        v.                                            (Super. Ct. No. INF054364)

ROLANDO ESTEBAN SANCHEZ,                              OPINION

    Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Riverside County, John J.
Ryan, Judge. (Retired judge of the Orange County Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part as amended, reversed
in part and remanded for resentencing.
                  William J. Capriola, under appointment by the Court of Appeal, for
Defendant and Appellant.
                  Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
                                  *            *             *
              A criminal defendant has a constitutional and statutory right to be present at
sentencing. (People v. Robertson (1989) 48 Cal.3d 18, 60.) Defendant Rolando Esteban
Sanchez contends he was denied his right to counsel and to be present at his resentencing
hearing when the trial court resentenced him in his absence on remand after the federal
district court ordered defendant’s conviction on count five vacated and the matter
remanded for trial on count five for resentencing.
              Defendant was convicted and sentenced on a number of felony convictions
in this matter. The court originally sentenced him to an aggregate term of 63 years to
life. A consecutive sentence of one year eight months on count five (possession of a
concealed firearm in a motor vehicle) was part of the aggregate term. The court found
that based on the sentence imposed on count five, Penal Code1 section 654 precluded
punishing defendant on count eight (possession of a loaded firearm in a motor vehicle).
              On remand, the trial court held defendant had no right to appear for his
resentencing. The Attorney General does not contend defendant’s right to be present or
to have the assistance of counsel were not violated, but argues that defendant was not
prejudiced. According to the Attorney General, defendant did not demonstrate he “could
have received a more favorable result if he had been present or able to confer with his
attorney.” We disagree.
              At the resentencing, the trial court stated it was only lifting the previously
imposed stay on count eight. If it had, defendant’s total sentence would have been 61
years four months to life. (§ 669, subd. (b); People v. Bruner (1995) 9 Cal.4th 1178,
1181-1182.) Instead, the court changed the sentence on count eight from a five-year
concurrent term to a consecutive sentence of one year eight months, increasing the total
sentence to 63 years to life. Because the trial court changed the previously imposed term
to defendant’s detriment, defendant has demonstrated he was prejudiced by not being

              1All undesignated statutory references are to the Penal Code unless
otherwise indicated.

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permitted to be present and to confer with his attorney. We order the sentence imposed
on count eight at the resentencing hearing vacated and remand the matter to the superior
court for resentencing with the defendant present.
                                              I
                                PROCEDURAL SETTING
              This is the second appeal in this case by defendant. We granted his
requests to take judicial notice of the record from his earlier appeal in People v. Sanchez
(April 27, 2011, G042950) [nonpub. opn.] and the report and recommendation of the
United States magistrate judge in the Central District of California case, Sanchez v. Lewis
(C.D. Cal. June 27, 2014, No. ED CV 12-2018-DOC (PJW)), 2014 U.S. Dist. Lexis
59592. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.252.)
              Defendant was convicted by a jury of first degree murder (§ 187, subd. (a);
count one), arson (§ 451, subd. (d); count two), three counts of receiving stolen property
(§ 496, subd. (a); counts three, nine, and 10), second degree burglary (§ 459; count four),
carrying a concealed stolen firearm in a motor vehicle under his control (former § 12025,
subd. (a)(1) repealed by Stats. 2010, ch. 711, § 4; reenacted without substantive change
as § 25400, subd. (a)(1) by Stats. 2010, ch. 711, § 6, eff. Jan. 1, 2012; count five),
carrying a loaded firearm in a vehicle (former § 12031, subd. (a)(1) repealed by Stats.
2010, ch. 711, § 4; reenacted without substantive change as § 25850, subd. (a) by Stats.
2010, ch. 711, § 6, eff. Jan. 1, 2012; count eight), and active participation in a criminal
street gang (§ 186.22, subd. (a); count 11). Gang enhancements (§ 186.22, subd. (b)(1))
were found true in connection with a number of the offenses and defendant was found to
have discharged a firearm causing great bodily injury or death, in violation of section
12022.53, subd. (d).
              The court sentenced the defendant to an aggregate term of 63 years to life.
It first imposed 25 years to life on the murder (count one) and a consecutive term of 25
years to life for the intentional discharge of a firearm causing great bodily injury or death,

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for an indeterminate term of 50 years to life. The court then calculated the determinate
term portion of the sentence and ordered it to run consecutively to the sentence on count
one. (People v. Neely (2009) 176 Cal.App.4th 787, 798 [indeterminate and determinate
sentences are to be calculated separately].) The determinate term was calculated as
follows: a term of three years on count two (arson) plus a consecutive term of five years
for the gang enhancement found true in connection with count two; a consecutive 8-
month term (one-third the midterm) on count four (burglary) plus a consecutive one-year
term (one-third the midterm) on the gang enhancement found true in connection with the
count four; a consecutive 8-month term on count five (one-third the midterm) (possession
of concealed firearm) plus an additional one-year term (one-third the midterm) on the
gang enhancement found true in connection with count five, and a consecutive 8-month
term on count 10 (one-third the midterm) plus an additional one-year term (one-third the
midterm) on the gang enhancement found true in connection with count 10. Pertinent to
this appeal, the court imposed a two-year term on count eight (carrying a loaded firearm
in a vehicle), plus three years for the gang enhancement attached to that count, and stayed
imposition of the term pursuant to section 654 because the court imposed a prison term
on count five.2
              We affirmed the judgment on appeal. (People v. Sanchez (Apr. 27, 2011,
G042950) [nonpub. opn.], p. *14.) Our Supreme Court denied review. (People v.
Sanchez, review denied Aug. 10, 2011, S193704.) Defendant then sought relief in federal
court. As a result of the federal action, the district court ordered defendant’s conviction
on count five (possession of a concealed weapon in a motor vehicle under his control)
vacated and remanded the matter to the superior court for resentencing or a new trial on
count five.


              2
              Section 654 applies to convictions for violation of former sections 12025
and 12031 when the convictions are “based on the same act.” (In re Joseph G. (1995) 32
Cal.App.4th 1735, 1743.)

                                              4
                 The case was back in the superior court for resentencing on June 30, 2014.
Defense counsel’s June 20, 2014 request to have defendant transported to court for
resentencing was denied by Judge Charles E. Stafford, Jr., who apparently mistakenly
believed the matter was there on the issue of restitution, and not for resentencing, despite
defense counsel’s representation to the contrary. Judge Stafford continued the matter to
be heard to June 30, 2014, in Judge John J. Ryan’s courtroom.
                 On June 30, defendant’s attorney notified the court defendant wanted to be
present for resentencing and that she did not have section 977 authority to proceed in
defendant’s absence. Counsel informed the court defendant had previously been
sentenced to 63 years to life and that one year and eight months of that sentence was
based on the vacated conviction on count five and its attendant gang enhancement.
                 Defense counsel’s request to have defendant present was denied and the
court proceeded with the resentencing. The court granted the prosecutor’s motion to
dismiss count five, lifted the section 654 stay on the sentence previously imposed on the
conviction for possessing a loaded firearm in a vehicle, count eight (two-year midterm
plus three-year midterm on the attached gang enhancement), and imposed a consecutive
term of eight months (one-third the midterm) plus an additional one-year term (one-third
the midterm) on the gang enhancement found true in connection with count eight. This
resulted in no change in the aggregate term of the previously imposed sentence of 63
years to life.
                                               II
                                         DISCUSSION
                 A criminal defendant has a “constitutional and statutory right to be present”
for sentencing or a sentence modification hearing. (People v. Robertson, supra, 48
Cal.3d at p. 60; see Cal. Const., art. I, § 15 [defendant has right “to be personally present
with counsel”]; §§ 977, subd. (b)(1) [defendant “shall be personally present . . . at the
time of the imposition of sentence”], 1193 [“defendant shall be personally present when

                                                5
judgment is pronounced,” unless presence is properly waived].) Defendant was present
when judgment was originally imposed, but the superior court refused to permit
defendant to attend the resentencing hearing on remand after one of his convictions was
overturned. The court resentenced defendant on count eight, the sentence which had
been imposed and stayed pursuant to section 654 at the original sentencing. In
resentencing defendant on count eight, the court did not merely lift the previously ordered
stay; it changed the previously imposed (and stayed) sentence.
              In In re Ralph (1946) 27 Cal.2d 866, 867, the defendant pled guilty to
robberies in two consolidated cases. The court sentenced the defendant to state prison for
the term provided by law. On appeal, he contended he should have been committed to
the California Youth Authority (CYA) rather than state prison. He did not complain
about the term of the commitment. The Supreme Court reversed the judgment to the
extent the commitment was to state prison, and directed the trial court to certify
defendant to the CYA. (Ibid.) On remand, the court entered an order withdrawing the
commitment to state prison and referring defendant to the CYA. Within a week, the
CYA rejected defendant and the matter was back in the superior court. Without
defendant being present, the court “entered new orders in the form of judgments
purporting to resentence defendant to the state prison.” (Id. at p. 868.) The defendant
filed a petition for a writ of habeas corpus alleging the court lacked jurisdiction “to
resentence him in his absence.” (Ibid.)
              The Ralph court rejected the defendant’s contention. It noted the
defendant’s original appeal did not contest the sentence imposed; it only challenged the
fact that the defendant was committed to state prison instead of the CYA. (In re Ralph,
supra, 27 Cal.2d at p. 869; see People v. Ralph (1944) 24 Cal.2d 575.) In the earlier
appeal, the Supreme Court granted defendant the relief he requested, but in doing so, the
court “did not reverse the judgments of conviction or the sentences to imprisonment.” (In
re Ralph, supra, 27 Cal.2d at p. 869.) Because commitments to the CYA are only

                                              6
tentative, given the CYA may reject the defendant, the effect of the earlier appeal “was
merely to tentatively suspend commitment of the defendant to the state prison dependent
upon action by the Youth Authority.” (Id. at p. 870.) In concluding the court had not
violated the defendant’s right to be present for sentencing, the Supreme Court reasoned:
“We are satisfied that a proper interpretation of the pertinent statutory provisions
contemplates that sentence be pronounced prior to tentative commitment of a defendant
to the Youth Authority; that should the defendant be rejected by the Youth Authority
such sentence be executed as originally pronounced; and that pronouncement of a new
sentence is unnecessary, superfluous, constitutes only an order of commitment to a
different custodian and has not the stature of a judgment within the meaning of section
1193 of the Penal Code.” (Id. at p. 871.)
              As relevant to the issue before us, section 654, subdivision (a), provides in
pertinent part: “An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or omission be punished
under more than one provision.” This section does not bar multiple convictions, just
multiple punishment for the same act or course of conduct. (People v. Pearson (1986) 42
Cal.3d 351, 359.) When section 654 applies, the proper procedure is to impose sentence
on both counts and stay execution of sentence on one of the counts. (Pearson, at p. 361;
People v. Alford (2010) 180 Cal.App.4th 1463, 1470-1471.) The stayed sentence
becomes permanent upon completion of the sentence on the other count, in this case
count five. (People v. Green (1979) 95 Cal.App.3d 991, 1008.) However, should the
conviction on the count for which sentence was imposed be overturned, the sentencing
court then merely lifts the stay on the section 654 count. (In re Pope (2010) 50 Cal.4th
777, 784.)
              Not only does such a procedure prevent the defendant from being punished
twice for the same act, sentencing in this manner has another benefit. It preserves the

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ability of the sentencing court to impose the previously stayed term should the conviction
on the other count be reversed. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1128-1129.)
“‘Any other method either incurs the risk of letting a defendant escape altogether, or else
imposes an unnecessary burden on an appellate court and on the trial court on the
inevitable remand for correction of sentence.’ [Citation.]” (Id. at p. 1129.)
              In the present matter, the court imposed a consecutive 8-month term (one-
third the midterm) on defendant’s conviction on count five (former § 12025, subd. (a)(1)
[possessing concealed weapon in vehicle under defendant’s control]), and a consecutive
one-year term (one-third the midterm) on the gang enhancement (§ 186.22, subd. (b)(1))
found true in connection with that count. Addressing count eight at the original
sentencing, rather than impose the same penalty for possession of a loaded firearm in a
motor vehicle (former § 12031, subd. (a)(1)) and the gang enhancement found true in
connection with that count (i.e., eight months for the substantive offense and a one-year
term for the gang enhancement), the court imposed a full two-year term on the
substantive offense (midterm) and a three-year term (midterm) on the gang enhancement
attached to count eight.
              Had the trial court originally imposed and stayed the same sentence on
count eight and its gang enhancement as the court imposed on count five and its gang
enhancement, it perhaps could be argued defendant was not denied his right to be present
or his right to counsel when the matter came for hearing on remand from the federal
district court. In such a situation, defendant would have been present at the original
sentencing when the sentence was pronounced and would already know what his
sentence would be on count eight should his conviction on count five be vacated. (See
People v. Salazar (1987) 194 Cal.App.3d 634, 640, fn. 6 [enhancement has no life
independent of the count to which it attaches].) Had that happened and the conviction on
count five been vacated, defendant would at least arguably have found himself in the
same situation as the defendant in In re Ralph, supra, 27 Cal.2d 866, where the Supreme

                                             8
Court concluded the defendant had not been denied his right to be present at sentencing.
              But that is not what happened here. Contrary to the trial court’s conclusion
that defendant need not be present because all the court was going to do was simply lift
the previously imposed stay on count eight and its gang enhancement,3 the court did
more than simply lift the previously imposed stay. The court lifted the stay on the
previously imposed concurrent term of five years on count five and its enhancement, and
then changed that sentence, imposing a consecutive term of one year eight months on
count eight and its attendant enhancement. Had the court simply lifted the stay,
defendant would have been sentenced to a five-year concurrent term. (§ 669, subd. (b)
[if the court fails to designate whether sentence is to run consecutively or concurrently,
the second sentence “shall run concurrently”]; People v. Bruner, supra, 9 Cal.4th at pp.
1181-1182; see People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3 [concurrent
sentences are calculated by using their full terms under section 1170.1, subdivision (a),
consecutive sentences by calculating one-third the midterm].) This would have resulted
in an aggregate sentence of 61 years four months to life. By changing the sentence on
count eight to a different and more onerous term of one year eight months consecutive to
the already imposed sentence, defendant was sentenced to an aggregate term of 63 years
to life. This amounted to a resentencing. Defendant was entitled to be present for it
(People v. Robertson, supra, 48 Cal.3d at p. 60) and to have the assistance of counsel.
(Mempa v. Rhay (1967) 389 U.S. 128, 134 [a criminal defendant has the right to counsel
“at every stage of a criminal proceeding where substantial rights of a criminal accused
may be effected,” and the defendant’s substantial rights may be affected at sentencing].)




              3   The Court: “ . . . The only count[] that [has] changed is count five was
reversed by the federal district court. Count eight had been stayed based on count five;
so that stay is lifted and that term comes into place—one year, eight months.”


                                             9
Cruel and Unusual Punishment
              Defendant argues that because he committed the crimes in this matter when
he was 16 years old, his 63 years to life sentence violates the Eight Amendment cruel and
unusual punishment clause. Defendant would not ordinarily be eligible for parole until
he is at least 79 years old, although recently enacted section 3051, subdivision (b)(3),
provides defendant will be eligible for parole during his “25th year of incarceration.”
This issue was understandably not raised in defendant’s first appeal given the United
States Supreme Court’s decision in Miller v. Alabama (2012) 567 U.S.          [132 S.Ct.
2455] (mandatory life without parole sentence for minor violates the Eight Amendment
cruel and unusual punishment clause) did not issue until after our opinion in the first
appeal. The Attorney General argues defendant forfeited his claim by not raising it
below “at the resentencing hearing.” Defendant did not forfeit his claim that his sentence
constitutes cruel and unusual punishment. On June 10, 2014, the superior court
appointed the public defender to represent defendant. Twenty days later, without
defendant being present and over defense counsel’s objection, the court resentenced
defendant without him being present. We conclude counsel did not forfeit the issue.
Moreover, an unlawful sentence may be challenged at any time. (People v. Scott (1994)
9 Cal.4th 331, 354; see Montgomery v. Louisiana (2016)         U.S.    ,    [136 S.Ct. 718,
723] [defendant permitted to challenge sentence as cruel and unusual punishment 50
years after his arrest].) We do not, however, address the issue of whether the imposed
sentence constituted cruel and unusual punishment because defendant will have the
opportunity to address the issue in
the superior court on remand.


Section 654 Stay on Count 11
              After our opinion issued in defendant’s initial appeal, our Supreme Court
decided People v. Mesa (2012) 54 Cal.4th 191. In Mesa, the court found section 654

                                             10
precludes punishing a defendant for active participation in a criminal street gang (§
186.22, subd. (a)) where the only evidence of such prohibited participation was the
commission of a charged offense for which the defendant was also convicted and
sentenced. (People v. Mesa, supra, 54 Cal.4th at pp. 197-198, 200.) In the present case,
defendant’s conviction for active participation in a criminal street gang was based on the
commission of the other offenses for which he was convicted and sentenced. The
Attorney General agrees section 654 requires the execution of sentence on count 11 be
stayed. We do too. The abstract of judgment must be amended to reflect the sentence
imposed on count 11 is stayed pursuant to section 654.


Credits
              Lastly, the superior court failed to award defendant credits when it
resentenced him on June 30, 2014. The Attorney General agrees defendant was entitled
to be awarded additional credits for the period of time he was in custody after the original
sentencing until the date he was resentenced on count eight. (See People v. Rosas (2010)
191 Cal.App.4th 107, 111.) We agree as well. However, because the matter is being
remanded for resentencing on count eight, the issue of the amount of additional credits to
be awarded may be addressed at that time.
                                             III
                                      DISPOSITION
              The consecutive sentence imposed on count eight is ordered vacated and
the matter is remanded to the superior court for resentencing on that count. Defendant is
entitled to be present, with counsel, at that hearing. The defendant may raise the issue of
the constitutionality of his sentence at that hearing. The abstract of judgment is ordered
amended to reflect the sentence imposed on count 11 (a two-year concurrent term) is
ordered stayed pursuant to section 654. The superior court is to award defendant the
additional credits to which he is entitled upon resentencing. The clerk of the trial court is

                                             11
directed to prepare an amended abstract of judgment reflecting these modifications and
forward a certified copy to the Department of Corrections and Rehabilitation. The
judgment is otherwise affirmed.




                                                MOORE, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




                                           12
