Filed 7/5/16 P. v. Keeton 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 PEOPLE,
                                                                                           F070339
         Plaintiff and Respondent,
                                                                         (Kern Super. Ct. No. BF136484A)
                   v.

JERMALE KEETON,                                                                           OPINION

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
         Sylvia Whatley Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Larenda
R. Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                              FACTS
I.     Initial Trial Court Proceedings1
       Defendant Jermale Keeton (defendant) was charged with solicitation to commit
murder (count I – Pen. Code, § 653f, subd. (b))2 and active participation in a criminal
street gang (count II – § 186.22, subd. (a)). The amended information alleged defendant
committed the murder solicitation for the benefit of a criminal street gang. (§ 186.22,
subd. (b)(1).) The amended information further alleged defendant has previously been
convicted of a felony as defined in sections 667, subdivisions (c) through (j) and 1170.12,
subdivisions (a) through (e), and previously served two prior prison terms (§ 667.5,
subd. (b).)
       A jury convicted defendant of active participation in a criminal street gang but was
unable to reach a verdict on solicitation. The court declared a mistrial as to the
solicitation count. The trial court found the prior conviction and prior prison term
allegations as to count II to be true.
       On February 15, 2012, defendant was sentenced only as to the active participation
count and enhancements. Defendant received a prison term of 11 years.
       On March 2, 2012, a plea form was filed reflecting a plea agreement whereby
defendant would plead no contest to the solicitation count, and admit the gang
enhancement and the prior conviction. (§ 667, subds. (a) & (e).) Under the agreement,
defendant would receive an aggregate 13-year sentence for the solicitation count, the
gang enhancement and the prior conviction enhancement. Defendant’s sentence on the
active participation count would be stayed under section 654.




       1 The facts for this section are largely taken from our decision in People v. Keeton (Jan.
30, 2014, F064723) [nonpub. opn.].) (See Cal. Rules of Court, rule 8.115(b)(2).) This court
previously granted defendant’s request to take judicial notice of the record in that case.
       2   All further statutory references are to the Penal Code unless otherwise stated.

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          On April 2, 2012, the court resentenced defendant to an aggregate term of 13
years. The sentence included the lower term of three years on the solicitation count,
doubled pursuant to section 667, subdivision (e), plus two years for the gang
enhancement, plus five years pursuant to section 667, subdivision (a). On the active
participation count, the court sentenced defendant to six years and stayed imposition of
the sentence pursuant to section 654.
          On April 3, 2012, defendant filed a notice of appeal with respect to his conviction
for active participation in a criminal street gang.
II.       Appellate Decision
          In an opinion filed January 30, 2014, this court reversed defendant’s conviction for
actively participating in a street gang due to instructional error. (People v. Keeton, supra,
F064723 (Keeton I).) We remanded the matter to the trial court “for possible retrial.”
(Ibid.)
III.      Trial Court Proceedings on Remand
          On April 28, 2014, the trial court held a hearing on whether the prosecution
desired to retry defendant on the active participation count. Defendant was not present,
so the court initially trailed the matter “for Mr. Keeton to be here.” After the court
addressed other matters, it again called defendant’s case. The court noted that defendant
was currently housed at a state prison, and that his counsel was present on his behalf.
          The prosecution moved to dismiss, rather than retry, the active participation count.
The prosecution’s motion was made on the condition that defendant’s prior plea with
respect to the solicitation count and its enhancements remained in effect. The court
stated: “It’s my understanding that the defense is agreeable to the dismissal without
prejudice to any rights Mr. Keeton may have regarding his prior plea bargain and
possibly a motion to withdraw that plea, based on this appellate ruling?” Defense




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counsel responded, “Yes, your Honor.” The court then dismissed the active participation
count.3
       A minute order later indicated that defendant’s absence from the hearing was due
to him not being “transported to court.”
IV.    Defendant’s Petition for Writ of Habeas Corpus
       On August 11, 2014, defendant filed a petition for writ of habeas corpus seeking
permission to file a late notice of appeal.4 In the petition, defendant claimed that he had
told appellate counsel to file a notice of appeal on his behalf, and that appellate counsel
asked his trial counsel to file it. The petition further indicated that trial counsel agreed to
file the notice of appeal but did not do so in a timely fashion.
       This court granted the defendant’s petition, permitting him to file a late notice of
appeal under the constructive filing doctrine. (See In re Jermale Keeton, supra,
F069871.) Pursuant to that relief, defendant filed the notice of appeal, which initiated the
appeal now before us.
V.     Modified Abstract of Judgment
       On October 29, 2014, the trial court filed an amended abstract of judgment
reflecting the original 13-year sentence for the solicitation count and enhancements.
                                         DISCUSSION
       Defendant argues that the court prejudicially erred by holding the post-remand
hearing in his absence. We disagree.
       “[A] defendant is guaranteed the right to be present at any stage of the criminal
proceeding that is critical to its outcome if his presence would contribute to the fairness

       3  In our unpublished opinion in In re Jermale Keeton (Sept. 24, 2014, F069871) [nonpub.
opn.], we stated in dictum that the trial court granted the prosecution’s motion to dismiss count II
“over defense counsel’s objection.” We find it more precise to describe the defense’s position
not as an “objection” but rather a conditional agreement. That is, defense counsel agreed to the
dismissal so long as it was done without prejudice to a possible motion to withdraw the plea.
       4 On our own motion, we take judicial notice of the record in that case, In re Jermale
Keeton, supra, F069871.

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of the procedure.” (Kentucky v. Stincer (1987) 482 U.S. 730, 745.) However, “the
privilege of presence is not guaranteed ‘when presence would be useless, or the benefit
but a shadow’….” (Ibid.)
       This right to be present generally extends to sentencing hearings. (See People v.
Sanchez (2016) 245 Cal.App.4th 1409, 1414.) The rationale for requiring a defendant’s
presence at sentencing is to ensure “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 may have. [Citations.]” (United States v. Jackson (11th Cir. 1991) 923 F.2d 1494,
1496–1497 (Jackson).) “For an initial sentencing, or even a resentencing where an entire
sentencing package has been vacated on appeal, a hearing at which the defendant is
present with counsel will generally be necessary to accomplish this purpose.” (Id. at
p. 1497, italics added.)
       But when only a portion of a defendant’s sentence is invalidated, “the whole
process need not start anew.” (Jackson, supra, 923 F.2d at p. 1497.) In that
circumstance, the fundamental question is whether “[t]here has already been a sentencing
hearing at which the defendant had the opportunity to rebut evidence in the presentence
investigation report and to present evidence in mitigation; the sentencing judge has made
the necessary credibility determinations and exercised the necessary discretion to fashion
a sentencing package which [she] has determined, in fact, is the appropriate penalty
considering the defendant’s conduct and level of culpability.” (Ibid.)
       Here, the defense was afforded an opportunity to make its case with respect to
sentencing at the initial sentencing hearing on April 2, 2012. Defendant was present at
that hearing, and the defense chose to “submit” on the plea agreement. Defendant was
then sentenced to 13 years on the solicitation count. Defendant does not suggest that this
original sentencing hearing was inadequate. Instead, he contends that he “had a right to
argue for a better sentence” after we later remanded the case in Keeton I. We disagree.

                                            5.
As we will explain, the trial court did not have jurisdiction to grant defendant a “better
sentence” on the solicitation count on remand.
       Generally, when a case is “remanded for resentencing” after the reversal of one
count, the trial court has jurisdiction to modify the defendant’s sentence even as to
convictions that were affirmed. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1259.)
But our disposition in Keeton I did not remand for resentencing. “ ‘On remand with
directions, after a judgment on appeal, the trial court has jurisdiction only to follow the
directions of the appellate court; it cannot modify, or add to, those directions.’
[Citation.]” (People v. Vizcarra (2015) 236 Cal.App.4th 422, 441.) Our remand in
Keeton I was only to permit a possible retrial of the active participation count. Since no
retrial occurred, the trial court only had jurisdiction to implement this court’s judgment of
reversal on the active participation count. Specifically, the court only had jurisdiction to
perform the ministerial act of amending the abstract of judgment to reflect that only the
solicitation count, enhancements and resultant 13-year sentence remained intact.
Defendant did not have a right to be personally present for those proceedings because
they were not “critical.”5 (Cf. Jackson, supra, 923 F.2d at p. 1497.)
       Defendant also argues the trial court erred when it “deprived him” of the ability to
seek withdrawal of his plea. But defendant does not show that the trial court in fact
denied him the opportunity to seek withdrawal of his plea.6 To the contrary, the trial


       5  In addition to the constitutional claim, defendant asserts that his statutory right to be
personally present at court proceedings was violated. (See § 977.) Violations of a defendant’s
statutory right to personal presence are “ ‘reversible only if it is reasonably probable the result
would have been more favorable to defendant absent the error.’ [Citation.]” (People v. Moon
(2005) 37 Cal.4th 1, 21, quoting People v. Riel (2000) 22 Cal.4th 1153, 1196.) Since the trial
court had no jurisdiction to grant defendant a more favorable sentencing result on remand,
defendant cannot show prejudice.
       6  In fact, defendant’s petition for writ of habeas corpus in In re Jermale Keeton, supra,
F069871, shows defense counsel decided not to seek withdrawal of the plea. In that writ
petition, defendant himself wrote: “[In a letter received by defendant on May 11, 2014] Mr.
Evers [defendant’s attorney] went on to give me two-options involving the reversed count.
Option one was I can leave everything as is in terms of me accepting the trial court decision that
                                                 6.
court acknowledged that the defense’s assent to the dismissal of the active participation
count was made “without prejudice to any rights [defendant] may have regarding his
prior plea bargain and possibly a motion to withdraw that plea ….”7 Yet, the defense
never filed a motion to vacate the judgment with leave to change his plea. (See People v.
Grgurevich (1957) 153 Cal.App.2d 806, 810 [describing motion].) Defendant’s
argument that the trial court “deprived” him of the ability to seek withdrawal of his plea
is meritless.
                                        DISPOSITION
       The judgment is affirmed.

                                                                     _____________________
                                                                      POOCHIGIAN, J.
WE CONCUR:


________________________
LEVY, Acting P.J.


________________________
FRANSON, J.




was made outside of my present [sic]…. The second option was that he could put in a motion
that would allow me to withdraw a plea-deal I was force [sic] to take after my trial. I wrote Mr.
Evers back advising him to take what-ever step that need to be tooking [sic] that would allow me
to withdraw my plea-deal. At the time Mr. Evers agreed to do so. Unfortunately I received a
letter two-weeks later from Mr. Evers telling me that a motion to withdraw my plea is not a [sic]
option in Superior Court based on time frame.”
        This bolsters our conclusion that defendant was not prevented from seeking withdrawal
of his plea by the trial court. Instead, counsel decided not to seek withdrawal after concluding
such a motion would have been untimely.
       Defendant does not raise an ineffective assistance of counsel claim in this appeal.
       7 The day after the April 28, 2014, hearing, defense counsel advised defendant of what
had transpired at the hearing. (In re Jermale Keeton, supra, F069871.)

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