 

Filed 7/17/13 P. v. Ruiz CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B245746

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA052133)
         v.

ANTONIO RUIZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Steven
R. Van Sicklen. Reversed with directions.
         California Appellate Project, Jonathan B. Steiner and Richard B. Lennon for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and
Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________




 
 


                                                           INTRODUCTION


             Defendant Antonio Ruiz appeals from the judgment entered when he was
resentenced after the trial court found on habeas corpus that the original sentence violated
the dual use enhancement prohibition under Penal Code section 1170.1, subdivision (f).
We conclude that by resentencing Ruiz without a hearing, the trial court violated his
constitutional and statutory rights to be present and represented by counsel. Therefore we
remand for resentencing.


                                  FACTUAL AND PROCEDURAL BACKGROUND


             A.            The Crime
             On June 11, 2002 Ruiz shot at homes as he drove through the city of Lawndale,
California. Shortly thereafter, he demanded “money and gold” at gunpoint from a man
sitting in his car outside a convenience store. When the man refused, Ruiz threatened to
shoot him in the head. The police apprehended Ruiz around 3:00 a.m. and found him in
possession of methamphetamine. Ruiz was a member of the North Side Redondo gang
and committed these acts in a rival gang’s territory.1


             B.            The Initial Sentencing
             Ruiz was charged with seven counts: (1) criminal threats (Pen. Code,2 § 422);
(2) assault with a firearm (§ 245, subd. (a)(2)); (3) attempted second degree robbery
(§§ 211, 664); (4) shooting at an inhabited dwelling (§ 246); (5) possession of a firearm



                                                        
1      We only briefly summarize facts of Ruiz’s crimes because they are not relevant to
the issues in this appeal.
2            All further statutory references are to the Penal Code unless otherwise stated.


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by a felon (§ 12021, subd. (a)(1)3); (6) possession of a narcotic with a firearm (Health &
Saf. Code, § 11370.1, subd. (a)); and (7) possession of a controlled substance (Health &
Saf. Code, § 11377, subd. (a)). The information also contained allegations that Ruiz
personally used a firearm in the commission of the crimes charged in counts 2 and 3
(§ 12022.5, subd. (a)); as to count 3, that Ruiz personally used a handgun in the
commission of the crime (§ 12022.53, subds. (b) & (e)(1)); as to counts 3 and 4, that a
principal was armed with a firearm in the commission of the crime (§ 12022,
subd. (a)(1)); and as to counts 1 through 4, that the crimes committed were for the benefit
of, at the direction of, and in association with a criminal street gang (§ 186.22,
subd. (b)(1)). The information further alleged that Ruiz suffered two prior convictions of
serious felonies within the meaning of section 667, subdivision (a)(1), and the “Three
Strikes” Law (§§ 667, subds. (b)-(i), 1170.12), for which he served two prior prison terms
(§ 667.5, subd. (b)).
             Ruiz waived a jury trial. The trial court struck a prior conviction, making this a
“second strike” case. The court indicated that if Ruiz pleaded guilty to all counts, the
court would sentence him to between 25 to 30 years and would listen to and consider the
presentations of counsel in determining the appropriate sentence within that range. After
hearing the argument of counsel, the court sentenced Ruiz to 27 years and 8 months as
follows:
             Counts 1 and 2: Stayed (§ 654).
             Count 3: 27 years and 8 months, consisting of 32 months (low term, doubled),
plus 10 years for the use of a firearm (§ 12022.5, subd. (a)(1)), plus 10 years on the gang
enhancement (§ 186.22, subd. (b)(1)(C)), plus 5 years on the prior serious felony
enhancement (§ 667, subd. (a)(1)).
             Count 4: 365 days in county jail, credit given for time served.
             Count 5: Stayed (§ 654).
                                                        
3     Section 12021 was repealed by Statutes 2010, chapter 711, section 4, operative
January 1, 2012; see now section 29800, subdivision (a)(1).


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             Count 6: Middle term of six years, doubled, to run concurrent to the sentence on
count 3.
             Count 7: Stayed (§ 654).


             C.            The Habeas Petition and Resentencing
             Ruiz filed a petition for writ of habeas corpus in 2011. Among other claims, Ruiz
argued that the trial court violated the prohibition against imposing both gang and firearm
enhancements.4 He requested a resentencing hearing and asked the court to dismiss the
10-year gang enhancement.
             The People conceded and the trial court agreed that the dual enhancements were
improper and asked the People to recalculate a legal sentence within the 25 to 30-year
range. (See People v. Rodriguez (2009) 47 Cal.4th 501, 509.) The People recalculated
Ruiz’s sentence to impose again a term of 27 years and 8 months as follows:
             Counts 1 and 2: Stayed (§ 654).
             Count 3: 19 years, consisting of 4 years (middle term, doubled), plus 10 years for
use of firearm (§ 12022.5, subd. (a)(1)), plus 5 years for the gang enhancement (§ 186.22,
subd. (b)(1)(B)).
             Count 4: 10 years (middle term, doubled) to run concurrent to the sentence on
count 3.
             Count 5: 1 year and 4 months (one-third the middle term, doubled).
             Count 6: Stayed (§ 654).
             Count 7: 1 year and 4 months (one-third the middle term, doubled).
             The trial court also imposed a five-year enhancement for a prior serious felony,
and a one-year enhancement for a prior prison term.
             The trial court granted Ruiz’s motion to file a written response to the
memorandum of points and authorities in support of the People’s proposed recalculated

                                                        
4            Ruiz’s other habeas claims are not relevant to this appeal.


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sentence. Ruiz filed a 16-page handwritten response. Ruiz asked that the trial court
order him to be present with counsel.
       The court vacated the previously imposed sentence, adopted the People’s
recommendation, and resentenced Ruiz to a term of 27 years and 8 months. The court,
however, did not hold a hearing and neither side was present.
       Ruiz appeals. Ruiz contends that the trial court’s procedure violated his
constitutional and statutory rights to be present at the resentencing and to counsel. We
conclude that the trial court’s resentencing of Ruiz without holding a hearing and
allowing Ruiz to attend and participate with his lawyer violated his rights, and that the
error was not harmless.


                                        DISCUSSION


       A.     Right To Be Present at Resentencing and Right to Counsel
       The Confrontation Clause of the Sixth Amendment and the Due Process Clause of
the Fourteenth Amendment of the United States Constitution guarantee that a criminal
defendant has a right to be personally present at trial. (See United States v. Gagnon
(1985) 470 U.S. 522, 526 [105 S.Ct. 1482, 84 L.Ed.2d 486] [“we have recognized that
this right is protected by the Due Process Clause in some situations where the defendant
is not actually confronting witnesses or evidence against him”].) Section 15 of article I of
the California Constitution and sections 977 and 1043 require the defendant to be present
at trial, sentencing, and pronouncement of judgment. (People v. Blacksher (2011) 52
Cal.4th 769, 798-799; People v. Rodriguez (1998) 17 Cal.4th 253, 257.)
       A defendant’s right to counsel under the Sixth Amendment applies at all critical
stages of a criminal proceeding where the defendant’s substantial rights are at stake.
(People v. Crayton (2002) 28 Cal.4th 346, 362.) “Sentencing . . . is a critical stage in the
proceeding during which a criminal defendant has the constitutional right to appear in
person, and to be represented by effective counsel and to present evidence with respect to
mitigation of sentence.” (People v. McGraw (1981) 119 Cal.App.3d 582, 594, fn. 1;


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accord, People v. Doolin (2009) 45 Cal.4th 390, 453; see People v. Munoz (2006) 138
Cal.App.4th 860, 867-868 [“counsel’s assistance is considered essential at every critical
stage of the criminal process, and this includes . . . sentencing”].) A criminal defendant
also has a statutory right to be present at sentencing. (See § 977, subd. (b) [a defendant
shall be present during sentencing, unless he waives that right and asks that his lawyer
appear instead].) In resentencing Ruiz, the trial court violated these rights by not having
a hearing where Ruiz could appear with his attorney and argue for a reduction in his
sentence. (See People v. Mora (2002) 99 Cal.App.4th 397, 398-399 [trial court’s
modification of sentence ex parte and “amending the abstract of judgment in [the
defendant’s] absence was error”]; People v. Arbee (1983) 143 Cal.App.3d 351, 355 [trial
court’s modification of judgment to correct sentencing mistake denied defendant of his
due process rights where “the modification at issue took place on the court’s own
initiative; [the defendant] was not notified, nor did he appear before the court”].)


       B.     Harmless Error
       Because the right to be present at sentencing and the right to counsel are federal
constitutional rights we apply the “harmless beyond a reasonable doubt” standard in
Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]. (See
People v. Davis (2005) 36 Cal.4th 510, 532 [“Under the federal Constitution, error
pertaining to a defendant’s presence is evaluated under the harmless-beyond-a-
reasonable-doubt standard set forth in Chapman . . . .”]; accord, People v. Robertson
(1989) 48 Cal.3d 18, 62; People v. El (2002) 102 Cal.App.4th 1047, 1050.) The statutory
error under sections 977 and 1043 “is a state law error only, and therefore is reversible
only if ‘“it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of error”’” under People v. Watson (1956) 46
Cal.2d 818, 836. (People v. Davis, supra, at pp. 532-533.) The defendant has the burden
of demonstrating that his absence and the lack of counsel resulted in prejudice or violated
his right to a fair and impartial trial. (People v. Blacksher, supra, 52 Cal.4th at p. 799;
People v. Cleveland (2004) 32 Cal.4th 704, 741.)


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       We cannot say that the deprivation of Ruiz’s constitutional rights was harmless
beyond a reasonable doubt. The absence of Ruiz and his attorney prevented them from
arguing in court for a sentence of less than 27 years and 8 months. When the trial court
resentenced Ruiz, the court had the authority to impose the 10-year gang enhancement or
the firearm use enhancement but not both, which under the court’s previously indicated
sentence range could have resulted in a 25-year sentence. Instead, the court reduced the
sentence on count 3 from 27 years and 8 months to 19 years, increased the sentence on
count 4 from 365 days to 5 years, and added 1 year and 4 months to count 7. That is a lot
of discretion exercised without having Ruiz present with counsel. This is not a case
where the trial court did not have discretion to reduce Ruiz’s sentence. Nor is this a case
where the subject of the hearing was a “modest” issue, such as the amount the trial court
would order the defendant to pay in restitution. (People v. Wilen (2008) 165 Cal.App.4th
270, 289.) The subject of this sentencing hearing was at least two years and eight months
of Ruiz’s liberty.
       And perhaps more. In its order on the petition for writ of habeas corpus, the trial
court “vacate[d] the previously imposed sentence” before it resentenced Ruiz. A vacated
sentence is “a nullity,” after which the trial court resentences the defendant “‘from
scratch’” and “has discretion to increase or decrease elements of the sentence (although
there may be limits on its ability to increase the aggregate sentence).” (People v. Garcia
(1995) 32 Cal.App.4th 1756, 1769.) Because the trial court’s indicated sentence of 25 to
30 years was not binding, the trial court could have resentenced Ruiz to less than 25
years. An “indicated sentence is not a promise that a particular sentence will ultimately
be imposed at sentencing. Nor does it divest a trial court of its ability to exercise its
discretion at the sentencing hearing, whether based on the evidence and argument
presented by the parties or on a more careful and refined judgment as to the appropriate
sentence. . . . The development of new information at sentencing may persuade the trial
court that the sentence previously indicated is no longer appropriate for this defendant or
these offenses. Or, after considering the available information more carefully, the trial
court may likewise conclude that the indicated sentence is not appropriate. Thus, even


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when the trial court has indicated its sentence, the court retains its full discretion at the
sentencing hearing to select a fair and just punishment.” (People v. Clancey (2013) 56
Cal.4th 562, 576.)
             The People argue that because the trial court did not change Ruiz’s sentence,
“there is no basis to believe that [Ruiz] would have received a lesser sentence if he had
been given an opportunity to recycle the same arguments he made during the original
sentencing hearing.” The People’s argument assumes that the trial court would have
exercised its discretion to resentence Ruiz regardless of what Ruiz and his attorney would
have said had they been present. We do not share the People’s cynical view of Ruiz’s
due process rights or of the exercise of the trial court’s sentencing discretion. “The
evidence and arguments that might be presented on remand cannot justly be considered
‘superfluous,’ because defendant and his counsel have never enjoyed a full and fair
opportunity to marshal and present the case supporting a favorable exercise of
discretion.” (People v. Rodriguez, supra, 17 Cal.4th at p. 258; see People v. Garcia,
supra, 32 Cal.App.4th at p. 1771 [“To say that sentencing decisions are discretionary is to
say that different reasonable decision makers—or, as in this case, the same reasonable
decision maker at different times—could arrive at different decisions, even on the same
facts.”].) Thus, “‘“it is no answer to say that in his particular case due process of law
would have led to the same result . . . .” [Citation.]’” (Fidelity Creditor Service, Inc. v.
Browne (2001) 89 Cal.App.4th 195, 205; accord, Coe v. Armour Fertilizer Works (1915)
237 U.S. 413, 424 [35 S.Ct. 625, 59 L.Ed. 1027].) The “‘right to be heard does not
depend upon an advance showing that one will surely prevail at the hearing.’” (People v.
Hernandez (2009) 172 Cal.App.4th 715, 722, quoting Fuentes v. Shevin (1972) 407 U.S.
67, 87 [92 S.Ct. 1983, 32 L.Ed.2d 556].)5



                                                        
5     Because we find that the federal constitutional error is not harmless beyond a
reasonable doubt, we do not reach the issue of whether the state law violations are
harmless under People v. Watson, supra, 46 Cal.2d 818.


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                                                           DISPOSITION


             Ruiz’s sentence is reversed and the case is remanded to the trial court for
resentencing, with Ruiz and his attorney present with a full opportunity to be heard.



                                                                     SEGAL, J.*

We concur:



                           WOODS, Acting P. J.



                           ZELON, J.




                                                        
*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution. 


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