Filed 11/8/13 P. v. Jones CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039272
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC637132)
v.
ELLIS T. CALIFORNIA JONES III,
Defendant and Appellant.
Defendant Ellis T. California Jones III appeals after he was resentenced following
a prior appeal.1 At the resentencing proceeding, which was conducted without defendant
or a defense attorney present, the trial court reduced the previously-imposed prison term
by eight months, and it reduced the amount of victim restitution by $400.
Defendant, who had represented himself in the earlier trial proceedings, contends
the trial court erred by conducting the resentencing proceeding without him or the
presence of an attorney on his behalf. For reasons that we will explain, we will affirm the
judgment.
Pursuant to defendant’s request, we have taken judicial notice of the record in his
1
prior appeal. (People v. Jones (Aug. 17, 2012, H036831) [nonpub. opn.].)
BACKGROUND
A. Trial Proceedings
After defendant robbed people in four separate criminal episodes, a jury convicted
him of four counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)),2 one
count of attempted second degree robbery (§§ 211, 212.5, subd. (c), 664), one count of
false imprisonment by violence (§ 237, subd. (a)), and four counts of assault with a stun
gun or taser (§ 244.5, subd. (b)).
The trial court sentenced defendant to 11 years and four months’ imprisonment,
imposing consecutive terms for all counts except for count 5 (one of the assault
convictions). The trial court ordered defendant to pay victim restitution (§ 1202.4,
subd. (f)) of $3,195, which included $400 to compensate one victim for the loss of his
cellular telephone.
Defendant represented himself at trial and at sentencing. (See Faretta v.
California (1975) 422 U.S. 806 (Faretta).)
B. Prior Appeal
In his prior appeal, defendant claimed that the trial court violated section 654 by
separately punishing him for certain of his convictions. He also pointed out that the
abstract of judgment reflected a concurrent term for count 5 rather than a section 654
stay, which the trial court had orally imposed. Finally, he disputed the amount of victim
restitution, pointing out that one of the victims had recovered his cell phone, for which
the trial court had ordered defendant to pay $400.
This court issued an opinion in defendant’s prior appeal on August 17, 2012.
(People v. Jones (Aug. 17, 2012, H036831) [nonpub. opn.].) This court found no
substantial evidence to support the trial court’s determination that count 3 (one of the
false imprisonment counts) was separately punishable and thus that it should have been
2 Further unspecified statutory references are to the Penal Code.
stayed under section 654. This court also agreed that the abstract of judgment should
have reflected the orally-imposed section 654 stay for count 5. Finally, this court
determined that the record was silent regarding whether the victim’s cell phone had been
returned in the same condition in which defendant took it from him, and that the matter
should be remanded for a hearing on that issue.
The dispositional order in defendant’s prior appeal provided: “The case is
remanded to the trial court for resentencing proceedings. First, the sentence for false
imprisonment is to be stayed pursuant to Penal Code section 654. Second, the trial court
is to determine whether it must modify its restitution order regarding the cellular
telephone of one victim for the reasons stated in this opinion or for any other reason that
may become apparent. Third, for the reasons stated herein—including, beyond the
directions in the first two items noted in this disposition, the need for administrative
correction regarding count five—the trial court is directed to prepare an amended abstract
of judgment and forward a certified copy of it to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.” (People v. Jones
(Aug. 17, 2012, H036831) [nonpub. opn.].)
C. Defendant’s Request to Be Present
On November 5, 2012, defendant sent a letter to the trial court from prison. He
noted that he represented himself “in propria persona” and that he understood there
would be “a rehearing of issues related to” his case. Defendant requested “personal
appearance at this rehearing.”
On November 15, 2012, the trial court sent a letter back to defendant. The court
noted that his request had been received and that it would be “placed in [his] file with no
further action.” The court’s notice stated, “Your appeal was affirmed. Therefore, there is
no need for a hearing.”
D. Resentencing
On November 30, 2012, the trial court modified defendant’s sentence in
accordance with our dispositional order. The prosecutor was present during the
proceedings, but the trial court noted that defendant was “in prison, so he is not here.”
The trial court first addressed the section 654 issues. Referring to this court’s
holding that count 3 “was in fact a [section] 654 matter,” the trial court ordered that the
punishment for count 3 be stayed. The trial court also reiterated its prior order that count
5 be stayed pursuant to section 654, noting that “the abstract didn’t reflect that.”
The trial court then addressed the restitution issue, asking the prosecutor if she had
been “able to determine if there was anything wrong with the cell phone?” The
prosecutor indicated she did not believe there had been any evidence of damage to the
cell phone at trial, and that the victim had not responded to her request for information.
The trial court therefore “set aside the $400 restitution order for the cell phone.”
The trial court issued an amended abstract of judgment, reflecting that counts 3
and 5 were stayed pursuant to section 654 and that $400 of the restitution order was “set
aside and vacated.” The total term imposed after resentencing was ten years eight
months.
DISCUSSION
Defendant contends the trial court erred by conducting the resentencing
proceeding without his presence—since he had represented himself in the earlier trial
proceedings—and without representation by counsel. He contends that the error violated
his rights under the Sixth Amendment and that it is reversible per se.
Respondent does not directly address the question whether defendant should have
been present or represented by counsel at the resentencing proceeding. Respondent
simply argues that defendant cannot show that he was prejudiced, “[g]iven that the trial
court followed the directions of this Court in amending the abstract of judgment to reflect
the proper sentence on count five, and staying his sentence on count three pursuant to
section 654, and then completely striking the $400 restitution fine.”
A. Right to Counsel at Resentencing Proceedings
“The Sixth Amendment right to the assistance of counsel applies at all critical
stages of a criminal proceeding in which the substantial rights of a defendant are at stake.
[Citation.]” (People v. Crayton (2002) 28 Cal.4th 346, 362 (Crayton), citing Mempa v.
Ray (1967) 389 U.S. 128, 134 (Mempa); see United States v. Wade (1967) 388 U.S. 218,
227 [Sixth Amendment requires “presence of counsel at . . . critical confrontations”].)
“The right to counsel may be waived by a defendant who wishes to proceed in propria
persona. [Citation.]” (Crayton, supra, at p. 362, citing Faretta, supra, 422 U.S. at
p. 807.) It is well settled that sentencing is a critical stage of criminal proceedings. (See
People v. Doolin (2009) 45 Cal.4th 390, 453.)
However, a resentencing proceeding is not necessarily a “critical stage[] of a
criminal proceeding in which the substantial rights of a defendant are at stake.”
(Crayton, supra, 28 Cal.4th at p. 362; see Bell v. Cone (2002) 535 U.S. 685, 695-696
[“ ‘a critical stage’ ” means “a step of a criminal proceeding” that holds “significant
consequences for the accused”].) The Sixth Amendment’s right to counsel guarantee
applies only to “trial-like confrontations”—i.e., events in which “the accused required aid
in coping with legal problems or assistance in meeting his [or her] adversary.” (United
States v. Ash (1973) 413 U.S. 300, 312, 313.)
Federal courts have held that there is no right to counsel (and thus no right to self-
representation) at a resentencing proceeding where the trial court’s only duty is to
perform a “ ‘ministerial act.’ ” (Hall v. Moore (11th Cir. 2001) 253 F.3d 624, 627; see
also Jackson v. Miller (7th Cir. 2001) 260 F.3d 769, 776 [no right to counsel where
subsequent proceeding is a “ ‘mere formality’ ”], quoting Mempa, supra, 389 U.S. at
p. 135.) However, a defendant does have a Sixth Amendment right to counsel at a
resentencing proceeding if, due to a successful appeal or post-sentencing motion, “the
entire sentencing package was set aside” and the trial court has “the discretion to
‘reconstruct the sentence.’ [Citation.]” (Hall v. Moore, supra, at p. 628.)
At a resentencing involving the “entire sentencing package,” the right to counsel is
necessary to ensure that “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 [or she]
may have. [Citations.]” (United States v. Jackson (11th Cir. 1991) 923 F.2d 1494, 1496-
1497.) But where the trial court must impose a lower sentence after a successful post-
sentencing motion or appeal, “this necessary process has already occurred. . . . In
constitutional terms, a remedial sentence reduction is not a critical stage of the
proceedings . . . .” (Ibid.)
In this case, defendant’s prior appeal did not result in the vacating of the “entire
sentencing package.” (United States v. Jackson, supra, 923 F.2d at p. 1497.) Although
this court’s dispositional order directed the trial court to conduct “resentencing
proceedings,” the order specified that the proceedings were limited to three specific
matters: imposition of a stay of count 3, a correction of the abstract to reflect a stay of
count 5, and a possible striking or reduction of a portion of the restitution order. (People
v. Jones (Aug. 17, 2012, H036831) [nonpub. opn.].) Thus, at the resentencing
proceeding, the trial court did not have “the discretion to ‘reconstruct the sentence.’
[Citation.]” (Hall v. Moore, supra, 253 F.3d at p. 628.) Rather, the trial court was
required to reduce defendant’s original sentence. (See United States v. Jackson, supra, at
p. 1497.)
With respect to the section 654 stays on counts 3 and 5, the trial court was
required to perform a “ ‘ministerial act’ ” at the resentencing proceeding. (Hall v. Moore,
supra, 253 F.3d at p. 627.) In light of our disposition in defendant’s prior appeal, the trial
court’s imposition of the section 654 stays was “a ‘mere formality.’ ” (See Jackson v.
Miller, supra, 260 F.3d at p. 776, quoting Mempa, supra, 389 U.S. at p. 135.) Thus, the
trial court could order those stays at the resentencing proceeding despite the fact that
defendant was not represented by counsel nor representing himself in pro per.
With respect to the victim restitution, the trial court was not ordered to perform a
“ ‘ministerial act,’ ” but the trial court also did not have “the discretion to ‘reconstruct the
sentence.’ [Citation.]” (Hall v. Moore, supra, 253 F.3d at pp. 627, 628.) In defendant’s
prior appeal, this court found no substantial evidence to support $400 of the victim
restitution. Instead of striking $400 from the restitution order, this court ordered the trial
court to “determine whether it must modify its restitution order regarding the cellular
telephone of one victim for the reasons stated in this opinion [i.e., because there was no
evidence of economic loss] or for any other reason that may become apparent.” (People
v. Jones (Aug. 17, 2012, H036831) [nonpub. opn.].) This court essentially directed the
trial court to reduce the restitution order by $400 unless the prosecution had additional
evidence supporting that particular economic loss. The trial court was not ordered to
conduct a full rehearing regarding restitution, and it did not have discretion to impose a
“more onerous” restitution amount. (See United States v. Jackson, supra, 923 F.2d at
p. 1497.) Nevertheless, we will assume that defendant should have been permitted to
represent himself or have counsel present on his behalf at the restitution portion of the
resentencing proceeding. (See United States v. Marks (9th Cir. 2008) 530 F.3d 799, 813
(Marks) [assuming, without deciding, that entry of restitution order without pro per
defendant’s presence violated his statutory or constitutional rights].)
B. Standard of Reversal
Even assuming that there was a Sixth Amendment error here with respect to the
restitution portion of the resentencing proceeding, we would further conclude that
reversal is not required. We disagree with defendant’s claim that such an error would be
reversible per se. Rather, as the Attorney General asserts, defendant must show
prejudice.
“[N]ot all constitutional violations amount to reversible error.” (Satterwhite v.
Texas (1988) 486 U.S. 249, 256.) “Sixth Amendment violations that pervade the entire
proceeding” are structural errors that are reversible per se. (Ibid.) However, where the
Sixth Amendment violation is more limited in nature and “a reviewing court can make an
intelligent judgment” about whether the error might have affected the outcome, harmless
error analysis is appropriate. (Id. at p. 258.)
The Ninth Circuit applied a harmless error analysis to the ex parte imposition of a
victim restitution order in Marks, supra, 530 F.3d 799. In Marks, as here, the defendant
had represented himself at trial, but he was not present when the trial court imposed a
victim restitution order. The Ninth Circuit assumed, without deciding, that it was error to
impose the restitution order ex parte, but found that “any such violation was harmless
error.” (Id. at p. 813.) The court found no prejudice, since the defendant had been
provided with the Government’s proposed restitution amount, had filed a written
objection to that amount, and “fail[ed] to explain what objections to the calculation of the
restitution amount he could have made that he did not already make in his written
objection.” (Ibid.)
In this case, defendant has made no attempt to explain how he would have
benefitted from being present or having counsel at the resentencing proceeding. (See
Marks, supra, 530 F.3d at p. 813.) Assuming he should have been present to represent
himself or have been represented by counsel, he suffered no prejudice. As ordered by
this court, the trial court imposed the section 654 stays on counts 3 and 5, and it set aside
the challenged $400 in victim restitution. Thus, the error was harmless beyond a
reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) Remand for
another resentencing proceeding is unnecessary and would not produce a different result.
DISPOSITION
The judgment is affirmed.
___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
__________________________
MÁRQUEZ, J.
__________________________
GROVER, J.