Filed 8/16/21 P. v. Welch CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B309147
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA099773)
v.
JEMAR DEWAYNE WELCH,
Defendant and Appellant.
APPEAL from an order of the Superior Court,
Richard M. Goul, Judge. Reversed and remanded with
directions.
Stanley Dale Radtke, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General,
Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General,
for Plaintiff and Respondent.
___________
This is Jemar Dewayne Welch’s second appeal. In his first
appeal, we affirmed his conviction of second degree murder but
remanded to allow the trial court to exercise its sentencing
discretion under Penal Code section 12022.53, subdivision (h),1 to
strike the firearm enhancement the court had imposed.
Following a resentencing hearing at which Welch was
represented by counsel but was not present, the trial court again
imposed the firearm-use enhancement.
In this appeal, Welch contends he should have been given
an opportunity to be present at the hearing so he could explain
the postjudgment efforts he had undertaken to rehabilitate
himself. Because the People have failed to meet their burden
beyond a reasonable doubt that Welch’s presence at the hearing
would not have affected the outcome, we reverse the sentence and
remand for a new resentencing hearing. On remand, Welch must
be given an opportunity to be present, and the trial court shall
take into account all relevant factors, including his postjudgment
conduct, in exercising its discretion whether to strike the firearm
enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
A. Welch’s Conviction of Second Degree Murder and First
Appeal
According to the testimony at trial, Welch shot and killed
Alexander Johnson during a street confrontation between rival
gang members. The jury convicted Welch of second degree
murder (§ 187, subd. (a)) and found true the special allegations
that the murder was committed for the benefit of a criminal
1 Further undesignated statutory references are to the Penal
Code.
2
street gang and Welch personally used and personally and
intentionally discharged a firearm causing death (§ 12022.53,
subds. (b), (c), (d)). (People v. Welch (Oct. 9, 2018, B281532)
[nonpub. opn.].) The trial court sentenced Welch to 15 years to
life in state prison for the murder, plus a consecutive term of 25
years to life for the use of the firearm pursuant to section
12022.53, subdivision (d). (Welch, supra, B281532.)
In Welch’s first appeal, we affirmed Welch’s conviction but
remanded for resentencing, concluding Senate Bill No. 620 (2017-
2018 Reg. Sess.), which gave the trial court new discretion to
strike a firearm enhancement under section 12022.53,
subdivision (h), applied retroactively. (People v. Welch, supra,
B281532.)
B. The Trial Court’s Resentencing Hearing
The trial court held a resentencing hearing on
September 21, 2020.2 Welch’s appointed attorney was present,
but Welch was not. At the outset of the brief hearing, the court
inquired of Welch’s attorney, “[W]e are here for the Franklin
setting[3] and sentencing on the weapon. And what would you
like to do?” Welch’s attorney responded, “Well, the sentencing on
the weapon, we can do that kind of whenever you want to do that.
[¶] . . . [¶] It doesn’t matter to me when we do it.”
After a brief discussion about scheduling of the Franklin
hearing (and no argument about the firearm enhancement), the
2 Judge Richard Romero, who presided over the trial, is no
longer serving as a Los Angeles Superior Court judge.
3 In People v. Franklin (2016) 63 Cal.4th 261, 284 the
Supreme Court held a youth offender must have a “sufficient
opportunity to make a record of information relevant to his
eventual youth offender parole hearing.”
3
trial court explained as to resentencing, “First off, as far as the
remittitur on the sentencing, the court, having reviewed the file
and transcripts that were available, does exercise its discretion in
imposing the weapons enhancement as imposed at the time of
sentencing. That resolves that issue as far as the court’s
remittitur.” The prosecutor then inquired, “So to be clear, the
gun allegation remains?” The court confirmed, “Yes. The
allegation remains. The court exercises its discretion in imposing
it, yes.” Welch again appealed.
DISCUSSION
A. Welch Had a Constitutional and Statutory Right To Attend
the Resentencing Hearing
“A criminal defendant has a ‘constitutional and statutory
right to be present at [a] sentence modification hearing and
imposition of sentence.’” (People v. Nieves (2021) 11 Cal.5th 404,
508 (Nieves) [defendant was denied right to be present at
sentence modification hearing at which she was ordered to pay
restitution and restitution fine, but error was not prejudicial];
accord, People v. Cutting (2019) 42 Cal.App.5th 344, 347-348
(Cutting) [defendant had federal constitutional right to be
present at resentencing hearing following change in law
applicable to nine-year enhancement initially imposed by trial
court]; People v. Sanchez (2016) 245 Cal.App.4th 1409, 1414, 1417
[finding prejudicial violation of defendant’s constitutional and
statutory right to be present at resentencing following reversal of
conviction on one count where trial court imposed consecutive
instead of concurrent sentence]; see Cal. Const., art. I, § 15
[defendant in criminal case has the right “to be personally
present with counsel”]; Pen. Code, §§ 977, subd. (b)(1) [defendant
“shall be personally present . . . at the time of the imposition of
sentence”], 1193, subd. (a) [“defendant shall be personally present
4
when judgment is pronounced” unless defendant waives
presence].)
As the Supreme Court explained in People v. Cole (2004)
33 Cal.4th 1158, 1230, “[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 clause of the Fourteenth
Amendment to the United States Constitution, section 15 of
article I of the California Constitution, and sections 977 and
1043.” (Accord, People v. Virgil (2011) 51 Cal.4th 1210, 1234 [“A
criminal defendant’s right to be personally present at trial is
guaranteed by the Sixth and Fourteenth Amendments of the
federal Constitution.”]; see Cutting, supra, 42 Cal.App.5th at
pp. 347-348 [sentencing and resentencing hearings are “critical
stages” of the criminal prosecution for which a criminal
defendant has right to be personally present pursuant to the
confrontation clause of the Sixth Amendment and the due process
clause of the Fourteenth Amendment].)
“A defendant may waive [his or] her constitutional right to
be present for sentencing ‘as long as [his or her] waiver is
voluntary, knowing and intelligent.’” (Nieves, supra, 11 Cal.5th
404, 508; accord, People v. Mendoza (2016) 62 Cal.4th 856, 898;
People v. Davis (2005) 36 Cal.4th 510, 531 (Davis).) However,
contrary to the People’s contention, the failure of defense counsel
to object to the defendant’s absence does not forfeit the
defendant’s right to be present. (Nieves, at p. 508; People v.
Penunuri (2018) 5 Cal.5th 126, 162 [defense counsel’s failure to
object to defendant’s absence during codefendant’s closing
argument did not forfeit defendant’s right to be present].)
Rather, the question is whether the defendant made a valid
5
waiver of his or her right to be present. (Nieves, at p. 508; Davis,
at p. 532.) “At a minimum, there must be some evidence that
defendant understood the right he was waiving and the
consequences of doing so.” (Davis, at p. 532 [finding insufficient
evidence of defendant’s knowing and intelligent waiver of his
presence where the record only showed that defense counsel
stated counsel had discussed the hearing with defendant and
defendant would waive his presence].)4
The People contend Welch forfeited his right to appear
personally when his trial counsel advised the court that the
resentencing hearing could happen “whenever you want to do
that.” However, nothing in this statement by Welch’s counsel
shows Welch was knowingly and voluntarily absent from the
hearing or did not wish to appear. (See Nieves, supra, 11 Cal.5th
at p. 508 [trial court violated defendant’s constitutional right to
be present at resentencing, noting “[t]here is no indication that
defendant made any valid waiver of her right to be present”];
Cutting, supra, 42 Cal.App.5th at p. 348 [trial court erred in
resentencing absent defendant, concluding defendant “did not
waive his right to be present, and his lawyer did not represent to
the court that he had surrendered it”].)
4 Section 977, subdivision (b)(1), provides for a written
waiver of a defendant’s statutory right to be present, stating in
relevant part, “[I]n all cases in which a felony is charged, the
accused shall be personally present at the arraignment, at the
time of plea, during the preliminary hearing, during those
portions of the trial when evidence is taken before the trier of
fact, and at the time of the imposition of sentence. The accused
shall be personally present at all other proceedings unless he or
she shall, with leave of court, execute in open court, a written
waiver of his or her right to be personally present . . . .”
6
Alternatively, the People argue Welch did not have a right
to be present at the resentencing because the trial court was only
considering whether to strike the enhancement, and not whether
to modify the entire sentence. Generally a trial court has
jurisdiction on remand to reconsider a defendant’s sentence in its
entirety. (People v. Buycks (2018) 5 Cal.5th 857, 893 [“[W]hen
part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate,
so the trial court can exercise its sentencing discretion in light of
the changed circumstances.’”]; People v. Bell (2020)
48 Cal.App.5th 1, 24 [based on appellate court’s striking of a
section 667.5, subdivision (b), prior prison term enhancement,
“the trial court is entitled to reconsider appellant's entire
sentence”].) The People are correct that in this case, however,
section 190, subdivision (a), provides for a sentence of 15 years to
life for second degree murder. Therefore, the trial court’s
discretion was limited to the firearm enhancement. However, a
defendant is entitled to be present for resentencing on even a
portion of a sentence. (See Nieves, supra, 11 Cal.5th at pp. 507-
508 [defendant had right to be present at resentencing as to
victim restitution and restitution fine].) The People cite to no
authority to the contrary, nor is there.5
Accordingly, because Welch had a constitutional and
statutory right to be present at resentencing, which right he did
5 The People’s contention that Welch was required to file a
motion to strike or dismiss the firearm enhancement also lacks
merit. In Welch’s first appeal, we specifically remanded for
resentencing in order “to allow the trial court to determine
whether to strike the enhancement imposed under section
12022.53.” (People v. Welch, supra, B281532.) No further motion
was necessary.
7
not waive, the trial court erred in resentencing Welch without
him being present in court.
B. The Trial Court’s Error in Resentencing Welch in His
Absence Was Prejudicial
“Although the exclusion of the defendant from a critical
proceeding constitutes error, it is not structural error.” (People v.
Perez (2018) 4 Cal.5th 421, 438; accord, People v. Perry (2006) 38
Cal.4th 302, 312 [“Erroneous exclusion of the defendant is not
structural error that is reversible per se, but trial error that is
reversible only if the defendant proves prejudice.”]. “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 v. California (1967) 386 U.S. 18,
23.” (Davis, supra, 36 Cal.4th at p. 532; accord, People v.
Mendoza, supra, 62 Cal.4th at p. 902; see Cutting, supra,
42 Cal.App.5th at p. 348 [reviewing constitutional error in
resentencing defendant in his absence for Chapman error].)
Welch contends “his absence prevented him from raising
any objections to the re[]sentencing decision, prevented him from
offering any postconviction evidence of his rehabilitative efforts
since the crime, and prevented him from testifying as to his
conduct, educational efforts, and post-sentencing conduct while in
prison.” (See People v. Yanaga (2020) 58 Cal.App.5th 619, 622
[trial court prejudicially erred when “[i]t refused to consider
appellant’s postjudgment rehabilitative efforts in prison because
it mistakenly believed it could consider only information before
the original sentencing court”]; see also Dix v. Superior Court
(1991) 53 Cal.3d 442, 460 [“[I]t is well settled that when a case is
remanded for resentencing after an appeal, the defendant is
entitled to ‘all the normal rights and procedures available at his
original sentencing’ [citations], including consideration of any
8
pertinent circumstances which have arisen since the prior
sentence was imposed.”]; People v. Jackson (1987) 189 Cal.App.3d
113, 119 [“[W]here a sentence has been vacated and the issue
remanded to the trial court for resentencing, the trial court must
consider information concerning defendant’s postoriginal
sentencing behavior contained in a supplemental probation or
corrections report.”].) We agree the error was not harmless
beyond a reasonable doubt.
The People argue there was no prejudicial error because
Welch’s attorney did not request an updated probation report or
present evidence of Welch’s postjudgment conduct. But it was
the People’s burden to show the federal constitutional error was
harmless beyond a reasonable doubt. (See People v. Mower
(2002) 28 Cal.4th 457, 484 [“[T]he standard stated in [Chapman],
requires the People, in order to avoid reversal of the judgment, to
‘prove beyond a reasonable doubt that the error . . . did not
contribute to the verdict obtained.’”]; Cutting, supra,
42 Cal.App.5th at p. 349 [“The People . . . fundamentally
misapprehend their burden on appeal: Under the Chapman
harmless error standard, the burden is on the People, not the
defendant, to demonstrate that the violation of the defendant’s
federal constitutional right was harmless beyond a reasonable
doubt.”]; but see In re Guiomar (2016) 5 Cal.App.5th 265
[petitioner’s right to be present at resentencing hearing under
Proposition 47 (the Safe Neighborhoods and Schools Act of 2014;
§ 1170.18) was harmless beyond a reasonable doubt because
petitioner did not show he had made efforts at rehabilitation or
that those efforts would have been relevant to resentencing once
trial court found him eligible for resentencing], affd., People v.
Buycks (2018) 5 Cal.5th 857.)
9
The People presented no evidence at the resentencing
hearing relating to Welch’s postjudgment conduct, nor does the
record reflect that the court considered any postjudgment conduct
(or any factors) before deciding not to strike the firearm
enhancement. Welch was in the best position to provide
information about his four years of postjudgment conduct in
prison, as well as his educational and rehabilitative efforts.
Absent information about Welch’s conduct in prison, we cannot
tell whether this conduct and any other information Welch could
have presented would have swayed the trial court to strike the
firearm enhancement. As the Court of Appeal explained in
Cutting, supra, 42 Cal.App.5th at page 350, in finding the
violation of Cutting’s right to be present at resentencing was
prejudicial, “Cutting may have offered mitigating factors that
arose after his original sentencing; he may have expressed
remorse; he may have made a plea for leniency. [Citation.]
While the trial court may or may not have chosen to believe what
Cutting might have said, if he said anything, we cannot conclude
beyond a reasonable doubt that his presence at the hearing would
not have affected the outcome.” (Accord, People v. Rodriguez
(1998) 17 Cal.4th 253, 258 [explaining as to defendant’s right to
be present on remand at hearing for trial court to exercise its
discretion whether to dismiss his prior strike convictions, “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.”]; see People v. Gutierrez (2014) 58 Cal.4th 1354, 1391
[“‘Defendants are entitled to sentencing decisions made in the
exercise of the “informed discretion” of the sentencing court.’”].)
10
The People’s argument that any error was harmless
because there were three aggravating factors that supported the
trial court’s resentencing decision also lacks merit. Even if the
aggravating factors supported imposition of the firearm
enhancement at the time of sentencing, Welch had a right to the
exercise of the trial court’s discretion in considering both pre- and
postjudgment factors at the time of resentencing. (See People v.
Yanaga, supra, 58 Cal.App.5th at pp. 627-628.)
DISPOSITION
The trial court’s order declining to strike the firearm
enhancement is reversed and the matter is remanded for
resentencing. Welch must be afforded the opportunity to be
present at the resentencing hearing with counsel. The court shall
order a supplemental probation report and consider relevant
sentencing factors, including postjudgment circumstances.6
FEUER, J.
We concur:
PERLUSS, P. J. SEGAL, J.
6 In light of the jury’s true finding on the firearm
enhancements under section 12022.53, subdivisions (b), (c), and
(d), on remand the trial court should consider whether to exercise
its discretion to strike or impose the greater and lesser
enhancements. (People v. Morrison (2019) 34 Cal.App.5th 217,
222 [“Courts now may ‘strike or dismiss’ an enhancement under
11
section 12022.53, subdivision (d) in the interests of justice under
section 1385. In a case where the jury had also returned true
findings of the lesser enhancements under section 12022.53,
subdivisions (b) and (c), the striking of an enhancement under
section 12022.53, subdivision (d) would leave intact the
remaining findings, and an enhancement under the greatest of
those provisions would be mandatory unless those findings were
also stricken in the interests of justice.”].)
The Supreme Court has granted review in People v. Tirado
(2019) 38 Cal.App.5th 637, 644, review granted Nov. 13, 2019,
S257658 to address the following related issue: “Can the trial
court impose an enhancement under Penal Code section
12022.53, subdivision (b), for personal use of a firearm, or under
section 12022.53, subdivision (c), for personal and intentional
discharge of a firearm, as part of its authority under section 1385
and subdivision (h) of section 12022.53 to strike an enhancement
under subdivision (d) for personal and intentional discharge of a
firearm resulting in death or great bodily injury, even if the
lesser enhancements were not charged in the information or
indictment and were not submitted to the jury?” The resolution
of that question will not affect whether the trial court in this case
on remand should consider imposition of the subdivision (b) and
(c) enhancements because the jury found both enhancements to
be true.