Filed 7/21/14 P. v. Martin CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058888

v.                                                                       (Super.Ct.No. HEF970426)

ROBERT LOUIS MARTIN,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge.

Reversed with directions.

         Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Warren

Williams, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                               I

                                     INTRODUCTION

       Defendant Robert Louis Martin appeals the trial court’s denial of his petition to

modify his indeterminate sentence of 26 years to life. (Pen. Code, § 1170.126.)1

Defendant argues that he did not waive his personal appearance at the hearing; his trial

counsel provided ineffective assistance of counsel; and the trial court abused its

discretion.

       We conclude defendant was denied his constitutional right to attend the sentencing

hearing. We vacate the order denying defendant’s petition and remand for the trial court

to conduct a new hearing at which defendant is present.2

                                              II

                    FACTUAL AND PROCEDURAL BACKGROUND

A. The 1997 Crimes

       Defendant’s sentence in this case was imposed after his conviction in 1998. In an

earlier appeal, the facts were described by the California Supreme Court as follows:

       “On June 3, 1997, defendant Robert Louis Martin was living with his girlfriend,

Janelle Davis, and her 19-year-old son, Guy Davis, in Hemet, California. Sometime in

the late afternoon a family altercation commenced at the home during a visit by Janelle’s

nephew, Charles Trip, and his wife, Nicole Trip. Defendant returned home with his three

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

       2Defendant filed a petition for writ of habeas corpus (case No. E059764), which
we ordered considered with this appeal. We resolve that petition by separate order.

                                              2
young children shortly after Charles and Nicole arrived. According to Janelle, who

testified for the defense, when defendant entered the house she called him into the

kitchen, handed him a small packet of white powder she had just discovered in Guy’s

room, which she suspected to be drugs, and asked defendant to ‘[g]et rid of it.’[] The two

then returned to the living room and began arguing with the visitors.

       “The melee escalated.[] Guy Davis entered the argument and, according to his

mother's testimony, hit defendant with a pipe, accidentally hitting her as well. Nicole

Trip testified Guy was wielding a small ‘bat’ and defendant had picked up a chair and

was holding it over his head in a threatening manner. As the visitors and a neighbor,

Kenneth Biggs, became involved in the fracas, defendant yelled for everyone to get out of

the house. Defendant’s children ran from the house, and most of the adults also exited,

including defendant. Ultimately, defendant wound up outside in the alley behind the

house, facing a group of adults comprised of family members and neighbors as he

screamed and swung a metal pipe around himself in an arc, as one would swing a

baseball bat. Defendant also picked up and threw rocks at the group, hitting a neighbor,

Naomi Biggs, in the leg. Nicole Trip testified that as she tried to go past defendant to

enter the house to call police,[] defendant stepped in her direction and took a ‘full swing’

at her with the pipe. She ‘jump[ed] back’ and the pipe missed her by three or four feet.

Defendant did not actually hit anyone with the pipe during the episode.

       “Police officers Randy Jahn and Scott Jernagan arrived on the scene at 7:00 p.m.

They found defendant and a neighbor, Kenneth Biggs, in a fighting stance with others

standing around. A three-foot length of pipe was recovered from the ground six inches

                                             3
from where defendant was standing. After questioning defendant and the others at the

scene for approximately 30 minutes, Officer Jahn handcuffed defendant and took him

into custody, and Officer Jernagan transported him to the Hemet police station. At the

station Officer Jernagan searched defendant’s pants pockets and discovered a ‘bindle’

containing .12 grams of methamphetamine. When Officer Jahn questioned defendant

about the methamphetamine, he responded, ‘I don’t know how I got it, and it’s not mine.

I don’t know how it got there.’” (People v. Martin (2001) 25 Cal.4th 1180, 1182-1183.)

B. The 1998 Convictions

       A jury convicted defendant of three offenses: assault with a deadly weapon

(§ 245, subd. (a)(l) [swinging the pipe at victim Nicole Trip]); possession of

methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and misdemeanor battery

(§ 242 [(hitting Naomi Biggs with rocks)].) The court found true the enhancement

allegations that defendant had not remained free of convictions for five years after

serving a prison term (§ 667.5, subd. (b)) and had previously been convicted of three

serious and violent felonies. (§§ 667, subds. (c) & (e), 1170.12, subd. (c); People v.

Martin, supra, 25 Cal.4th at pp. 1183-1184.)

       At sentencing on December 19, 1998, the court expressly declined to exercise its

discretion under section 1385 to strike any of the prior convictions. Defendant was

sentenced to two concurrent prison terms of 25 years to life for both of the felony

convictions; one concurrent term of six months in county jail for the misdemeanor battery

conviction; and a one-year consecutive prison term for not having remained free of



                                             4
imprisonment or felony convictions for five years. (People v. Martin, supra, 25 Cal.4th

at p. 1184.)

C. The Appeals to the Court of Appeal and the Supreme Court

       After this court reversed defendant’s conviction of assault with a deadly weapon

for insufficiency of evidence and vacated the 25-year-to-life indeterminate term for that

offense, the California Supreme Court affirmed the judgment in 2000. (People v. Martin,

supra, 25 Cal.4th at pp. 1184, 1193.) Consequently, defendant is serving a sentence of

26 years to life based on his conviction for possession of .12 grams of methamphetamine.

Defendant has now been incarcerated for more than 15 years and faces a minimum of six

more years before parole eligibility.

D. Defendant’s Petition

       In November 2012, the California voters approved Proposition 36, the Three

Strikes Reform Act of 2012, adding section 1170.126, which provides a resentencing

option to “persons presently serving an indeterminate term of imprisonment pursuant to”

the Three Strikes Law. (Reform Act, § 6.)

       On December 3, 2012, defendant filed a “motion for modification of sentence

under the Three Strikes Reform Act.” In his petition, defendant listed his birthdate,

January 17, 1951. He included letters of support from his mother—who was offering him

a place to live when he was released—and his five adult children. He attached a

verification of his mobility impairment, dated June 4, 2007. A physician documented

hypertrophic arthritis in defendant’s left knee and hypertrophic spurring on his lumbar

spine. Defendant also attached vocational and educational reports for 12 years, 2000-

                                             5
2012, and certificates from self-help programs for six years, 2004-2010. He served as a

prison softball umpire in 2010, 2011, and 2012. He attached four rules violation reports

for 2002, 2005, and 2008. A public defender, Joseph Forth was appointed to represent

defendant.

       The Riverside County District Attorney’s Office filed a one-page boilerplate

opposition to the petition, checking the box stating “defendant’s criminal conviction

history, types of crimes, the extent of injuries to victims and the number of serious and/or

violent convictions indicate that defendant posed an overwhelming and unreasonable risk

of danger to public safety.”

       The hearing on defendant’s petition was continued numerous times with defendant

absent. On May 20, 2013, defendant filed a document asking for information about why

his case was being continued and asking for the name of his lawyer and to have

communication with him.

       In written opposition filed on May 30, 2013, the prosecutor outlined defendant’s

conduct in prison between 1999 and 2009 and his criminal history from 1974 until

1993—including convictions in 1980, 1981, 1987, and 1991 for robbery, assault with a

firearm, and assault with a deadly weapon, which also allegedly involved sex crimes.

However, the prosecutor’s submissions did not include any authenticated records because

they had been ordered but not received. The opposition was served on the public

defender but not on defendant.

       At the hearing on defendant’s petition on May 31, 2013, the public defender told

the court that defendant had waived his appearance for the hearing. The court stated that

                                             6
it had read all of defendant’s 114-page submission and the prosecutor’s opposition. After

determining that defendant was statutorily eligible to petition for recall of sentence, the

court nevertheless concluded that defendant posed an unreasonable risk of danger to

public safety pursuant to section 1170.126, subdivision (f), and declined to resentence

him, commenting:

       “[H]aving done the trial and now having looked at his criminal history and his

types of crimes—and the ones that he was committed for in this case was only an

11377—the appellate court reversed his 245, the length of time he’s been in prison, any

remoteness, any injuries to victims, the CDC 115s [the rules violations reports,] I’m

going to—I’ve considered it factually and have balanced the factors, and I’m going to

deny his request to be resentenced.”

       On June 10, 2013, defendant filed a request for rehearing which referenced his

lack of communication with his lawyer and asserted that he was in a wheelchair and did

not pose a danger to public safety. Defendant also objected to the prosecutor’s

characterization of his prison record. Finally, defendant asserted that the trial court had

not been given the information that his family had arranged for his enrollment in a

reentry program upon release. The court summarily denied the rehearing request.

                                             III

                   CONSTITUTIONAL AND STATUTORY RIGHTS

                           TO APPEAR AT RESENTENCING

       Section 1170.126 “provides a means whereby prisoners currently serving

sentences of 25 years to life for a third felony conviction which was not a serious or

                                              7
violent felony may seek court review of their indeterminate sentences and, under certain

circumstances, obtain resentencing as if they had only one prior serious or violent felony

conviction.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286.)

“First, the court must determine whether the prisoner is eligible for resentencing; second,

the court must determine whether resentencing would pose an unreasonable risk of

danger to public safety; and third, if the prisoner is eligible and resentencing would not

pose an unreasonable risk of danger, the court must actually resentence the prisoner.”

(Id. at p. 1299.) “[O]nce a court determines that a petitioning prisoner is eligible for

resentencing under the Act, the petitioner ‘shall be resentenced’ to a second strike

sentence ‘unless the court, in its discretion, determines that resentencing the petitioner

would pose an unreasonable risk of danger to public safety.’” (Id. at p. 301.)

       A defendant has federal and state constitutional and statutory rights to be present

at a sentencing hearing unless the right to appear has been expressly or impliedly waived.

(People v. Hines (1997) 15 Cal.4th 997, 1038-1039; People v. Superior Court (Kaulick),

supra, 215 Cal.App.4th at p. 1299; People v. Arbee (1983) 143 Cal.App.3d 351, 355-356;

§§ 977, subd. (b), 1043, and 1193; Cal. Const., art I, § 15.) Under the Sixth

Amendment’s confrontation clause, a criminal defendant has the right to be personally

present for effective cross-examination. Under the Fourteenth Amendment’s due process

clause, a criminal defendant has the right to be personally present if his presence is

critical to the outcome and would contribute to the fairness of the procedure. (People v.

Waidla (2000) 22 Cal.4th 690, 741-742.)



                                              8
       Section 1170.126, subdivision (i), permits a petitioning defendant to execute a

written waiver of a resentencing hearing: “[A] defendant petitioning for resentencing

may waive his or her appearance in court for the resentencing, provided that the

accusatory pleading is not amended at the resentencing, and that no new trial or retrial of

the individual will occur. The waiver shall be in writing and signed by the defendant.”

(§ 1170.126, subd. (i).) However, even without a waiver, a defendant’s absence may be

deemed nonprejudicial. (People v. Robertson (1989) 48 Cal.3d 18, 59-62; People v.

Hines, supra, 15 Cal.4th at p. 1039.) A defendant’s absence may not be prejudicial if his

presence does not bear a reasonably substantial relation to his opportunity to defend

against the charges. (People v. Dennis (1998) 17 Cal.4th 468, 538; People v. Ayala

(2000) 23 Cal.4th 225, 288, fn. 8; People v. Virgil (2011) 51 Cal.4th 1210, 1234.)

       The People argue that defendant’s personal appearance would not have changed

the court’s ruling because defendant had already submitted comprehensive materials in

support of his petition. Furthermore, any additional information regarding a reentry

program or his physical circumstances would not have been relevant to the court’s

determination of defendant’s danger to the public. The People assert there was no

prejudice. We disagree for the following reasons.

       First, it is highly problematic that Forth, defendant’s public defender, had no

contact whatsoever with defendant and then told the court that defendant had waived his

appearance. No evidence in the record demonstrated a waiver by defendant.

Furthermore, we cannot confidently say there was no prejudice. Had the trial court been

aware of defendant’s use of a wheelchair in addition to defendant’s age, it may have

                                             9
affected the court’s determination of his dangerousness. Had defendant personally

appeared, he could also have clarified his position that the prison disciplinary actions had

been resolved as lesser offenses; he had never threatened or assaulted a guard; and he had

not been cited since 2008 or 2009. Defendant’s potential placement in a reentry program

was also relevant to the issue of his dangerousness because it would have established his

intention to obtain the kind of postrelease support that helps a parolee avoid recidivism.

Finally, it was questionable for the court to rely on the prosecutor’s summary of

defendant’s criminal record, rather than authenticated records. It is unclear why the

People could not have obtained the appropriate documentation in the six months between

December 2012 and May 2013 rather than asking the court to rely on the prosecutor’s

summary.

       Based on the foregoing, we conclude defendant was denied his constitutional and

statutory rights and received ineffective assistance of counsel because there is no

satisfactory explanation for Forth not communicating with defendant and making certain

that he could appear personally at the hearing. A different outcome may have been

possible based on additional information. (People v. Pope (1979) 23 Cal.3d 412, 422-

425; People v. Ledesma (1987) 43 Cal.3d 171, 215.) Because we are remanding for a

rehearing with defendant personally appearing, we do not address the issue of whether

the trial court properly exercised its discretion based on the present record.




                                             10
                                           IV

                                     DISPOSITION

       We vacate the order denying defendant’s petition and remand for the trial court to

conduct a new hearing with defendant appearing personally.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              CODRINGTON
                                                                                        J.

We concur:


McKINSTER
                 Acting P. J.


KING
                           J.




                                           11
