Filed 4/5/21 P. v. Jordan CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B305548
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA057956)
v.
EDWARD JORDAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Scott T. Millington, Judge. Reversed and
remanded with directions.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and petitioner Edward Jordan (defendant)
appeals from the judgment entered after the superior court
granted his Proposition 47 petition to reduce his conviction of
petty theft with a prior conviction from a felony to a
misdemeanor, and for resentencing. Defendant contends that the
trial court erred in failing to give him the opportunity to appear
with counsel at the resentencing hearing. We agree and reverse
the judgment.
BACKGROUND
In 2005, defendant was convicted after a court trial of three
counts of assault with a deadly weapon, in violation of Penal
Code section 245, subdivision (a)(1),1 and petty theft with a prior
conviction, in violation of section 666. The allegation that
defendant inflicted great bodily injury on one of the assault
victims, in violation of section 12022.7, subdivision (a) was found
true, as were three prior felony strike convictions alleged
pursuant to section 667, subdivisions (b) through (i), two prior
serious felony convictions alleged pursuant to section 667,
subdivision (a), and five prior prison terms within the meaning of
section 667.5, subdivision (b).
The trial court sentenced defendant to consecutive
indeterminate prison terms of 25 years to life for each of two
assault convictions, 10 years for the two five-year enhancements
pursuant to section 667, subdivision (a), and an additional three
years for the great bodily injury enhancement. The court
imposed consecutive determinate terms of one year, eight months
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
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on the remaining two counts.2 On appeal from the judgment, we
determined that the trial court had found true six prior prison
terms alleged pursuant to section 667.5, subdivision (b), and had
stricken them all during sentencing proceedings. We thus
ordered the superior court to correct its minutes and otherwise
affirmed the judgment.
In 2018, defendant filed a Proposition 47 petition for
resentencing on his petty theft with a prior conviction, pursuant
to section 1170.18.3 The trial court held a hearing on the petition
in the presence of a deputy public defender and the prosecutor,
but defendant was not present. The record before us does not
indicate if or when counsel was appointed to represent defendant,
or whether she had conferred with defendant prior to the
hearing. Counsel did not indicate on the record of the hearing
2 The record is not clear on the breakdown of the one year,
eight month consecutive sentence, but section 1170.1 required, as
now, one-third the middle term for consecutive determinate
felony sentences. At the time defendant was sentenced, one-third
the middle term for a violation of section 666 was eight months,
and one-third the middle term for a violation of section 245,
subdivision (a)(1) was one year. (See Stats. 2002, ch. 126, § 1
[§ 1170.1]; Stats. 2000, ch. 135, § 134 [§ 666]; Stats. 1976,
ch. 1139, § 98, p. 5089 [§ 18]; Stats. 2004, ch. 494, § 1 [§ 245].)
Thus, the determinate sentence was eight months for the petty
theft with a prior conviction and one year for the third assault.
3 Proposition 47 enacted section 1170.18, subdivision (a),
which permits a person currently serving a sentence for a
conviction of an enumerated offense, including theft, to petition
to be resentenced where the facts show that the offense has since
been reclassified as a misdemeanor.
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that defendant had waived his appearance and we find no
written waiver in the record before us.
On January 21, 2020, the trial court granted the petition,
designating the petty theft with a prior conviction (count 2), as a
misdemeanor. The court immediately resentenced defendant
only as to count 2 and imposed a county jail sentence of eight
months, with credit for time served, and left the remaining
sentence unmodified.4
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends that his resentencing was a “critical
stage” of the proceeding, and that he had a right to be present
under the United States and California Constitutions. Defendant
claims he was deprived of that right when the trial court
resentenced him after granting his Proposition 47 petition.
Quoting People v. Buycks (2018) 5 Cal.5th 857, 893-894 (Buycks),
defendant also contends that the trial court had “jurisdiction to
modify every aspect of the sentence, and not just the portion
subjected to the recall,” and that his absence from the
resentencing hearing deprived him of the opportunity to advocate
for a full resentencing.
“[A] criminal defendant has a right to be personally present
at certain pretrial proceedings and at trial under various
provisions of law, including the confrontation clause of the Sixth
Amendment to the United States Constitution, the due process
4 The trial court left the remaining sentence unmodified on
January 21, 2020, but as defendant notes, the court amended the
determinate sentencing abstract of judgment on February 27,
2020, by adding an additional year to the sentence in count 3.
This may have been done without notice to the parties.
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clause of the Fourteenth Amendment to the United States
Constitution, section 15 of article I of the California Constitution,
and sections 977 and 1043. [Citation.]” (People v. Cole (2004) 33
Cal.4th 1158, 1230.) A criminal defendant’s right to be
personally present extends to all critical stages of the criminal
prosecution, including sentencing. (People v. Rodriguez (1998) 17
Cal.4th 253, 260.) Resentencing is a critical stage at which a
defendant has the right to be personally present. (People v.
Cutting (2019) 42 Cal.App.5th 344, 347.)
Respondent agrees that a defendant has a right to be
present at a critical stage but argues that because an uncontested
eligibility hearing under Proposition 47 is not a critical stage,
there is no right of defendant to be present at the subsequent
resentencing. We agree that a defendant need not be present for
the uncontested eligibility determination, which does not require
a hearing; however, after the trial court grants a Proposition 47
petition, the defendant has the right to be personally present at
the subsequent resentencing hearing under section 1170.18.
(People v. Simms (2018) 23 Cal.App.5th 987, 996; People v.
Fedalizo (2016) 246 Cal.App.4th 98, 110.)
Respondent suggests that resentencing under section
1170.18 is not a critical stage because it is not subject to the “full
resentencing rule” articulated in Buycks, supra, 5 Cal.5th at page
893. Respondent argues that under Buycks, resentencing under
section 1170.18 is permitted only with regard to enhancements
predicated on felony convictions reduced to a misdemeanor. We
disagree. Respondent’s argument is based upon the following
holding in Buycks at page 894: “[A]t the time of resentencing of a
Proposition 47 eligible felony conviction, the trial court must
reevaluate the applicability of any enhancement within the same
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judgment at that time, so long as that enhancement was
predicated on a felony conviction now reduced to a misdemeanor.”
There is nothing in that sentence that suggets that the full
sentencing rule does not apply in Proposition 47 resentencing.
In fact, prior to the sentence quoted by defendant, the
California Supreme Court had observed that the “full
resentencing rule” applies to Proposition 47 cases, allowing the
trial court “to modify every aspect of the sentence, and not just
the portion subjected to the recall,” and that any such
modification may be based on “‘any pertinent circumstances
which have arisen since the prior sentence was imposed.’”
(Buycks, supra, 5 Cal.5th at p. 893, citing with approval In re
Guiomar (2016) 5 Cal.App.5th 265, 272-275; People v. Cortez
(2016) 3 Cal.App.5th 308, 317; People v. McDowell (2016) 2
Cal.App.5th 978, 982; People v. Roach (2016) 247 Cal.App.4th
178, 183; People v. Rouse (2016) 245 Cal.App.4th 292, 300; People
v. Sellner (2015) 240 Cal.App.4th 699, 701-702.)
We also disagree with respondent’s assertion that an
appropriate remedy available to defendant is to file a separate
petition seeking relief under the sections 667, subdivision (a) and
1385, subdivision (b), as amended by Senate Bill No. 1393, to
allow a court to exercise its discretion to strike or dismiss a prior
serious felony conviction used to enhance a sentence. Senate Bill
No. 1393 applies retroactively only to defendants in whose cases
the judgment is not yet final, by application of the rule
articulated in “In re Estrada (1965) 63 Cal.2d 740, 744-745,
[absent evidence of contrary legislative intent, ‘it is an inevitable
inference’ that the Legislature intends ameliorative criminal
statutes to apply to all cases not final when the statutes become
effective] . . . .” (People v. Garcia (2018) 28 Cal.App.5th 961, 972-
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973.) Defendant’s 2005 judgment was final when he filed his
Proposition 47 petition. Section 1170.18, subdivision (n),
provides: “Resentencing pursuant to this section does not
diminish or abrogate the finality of judgments in any case that
does not come within the purview of this section.” (Italics added.)
“This subdivision emphasizes that, when a final judgment in a
case cannot be opened for resentencing under the procedures
created by section 1170.18, the judgment remains final . . . .”
(Buycks, supra, 5 Cal.5th at p. 894.) Thus, Senate Bill No. 1393
does not provide a remedy for defendant.
However, Proposition 47 applies the full resentencing rule
to an otherwise final judgment, and this “exception to this rule of
finality applies not only to individual counts, but to the entire
case in which the judgment contains at least one felony
conviction qualifying for reduction to a misdemeanor under the
resentencing procedures of Proposition 47.” (Buycks, supra,
5 Cal.5th at p. 894.)
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DISPOSITION
The judgment following resentencing is reversed, and the
matter is remanded for full resentencing. The trial court is
ordered to conduct a new hearing at which defendant is present
or waives his presence in accordance with Penal Code section
1193.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
ASHMANN-GERST
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