Filed 7/20/21 P. v. Bolden CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078279
Plaintiff and Respondent,
v. (Super. Ct. No. FVI1301535)
RONELL FREDERICK BOLDEN,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court of
San Bernardino County, Debra Harris, Judge. Order reversed and
remanded.
Aaron J. Schechter, under appointment of the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and
Respondent.
Ronell Frederick Bolden was convicted of first degree murder (Pen.
Code,1 § 187, subd. (a)), attempted robbery (§§ 664, 211), robbery (§ 211), and
several firearm enhancements (§ 12022.53, subds. (b-d)). He previously
appealed the judgment of conviction and the appellate court affirmed the
judgment but remanded the matter for resentencing with directions for the
trial court to decide whether to exercise its discretion to strike or dismiss one
or more of the firearm enhancements pursuant to section 12022.53,
subdivision (h).
Bolden now appeals from the trial court’s subsequent order declining to
exercise its discretion to strike or dismiss one or more of the enhancements
and asserts the court erred because he was not present, and did not waive his
right to be present, at the resentencing hearing. The People concede it was
prejudicial error for the trial court to hold the hearing in his absence and
agree the matter should be remanded once again for resentencing. We agree.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Convictions and Prior Appeal
The following facts regarding the underlying crimes are summarized
from this court’s unpublished opinion in defendant’s prior appeal, People v.
Ronell Frederick Bolden, et al. (July 30, 2019, D074574 [nonpub. opn.]).
In the early morning hours of October 7, 2012, Bolden and an
accomplice robbed two individuals in a restaurant parking lot at gunpoint.
Bolden and his accomplices then drove around looking for other individuals to
rob, and noticed a man exit a truck and walk towards an ATM in a bank
parking lot. Bolden walked towards the man with his gun drawn and his
accomplices heard two shots. Bolden returned to the car and said he “messed
1 All further statutory references are to the Penal Code.
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up.” The victim was later found, deceased, in the front seat of his truck with
bullet wounds to his head and chest.
A jury convicted Bolden of one count of first degree murder (§ 187,
subd. (a)) (count 1); one count of attempted robbery (§§ 664, 211) (count 2);
and two counts of robbery (§ 211) (counts 5 and 6). They also found true
three firearm enhancement allegations as to each of counts 1 and 2
(§ 12022.53, subds. (b-d)), and one firearm enhancement allegation as to each
of counts 5 and 6 (§ 12022.53, subd. (b)). The trial court sentenced Bolden to
a determinate prison term of 29 years 4 months and an indeterminate term of
50 years to life.
Bolden appealed and the appellate court affirmed the conviction.
Shortly thereafter, Bolden filed a petition for rehearing based on
amendments to section 12022.53 that became effective on January 1, 2018.
The appellate court vacated Bolden’s sentence and remanded the matter for
resentencing with instructions for the trial court to consider whether to
exercise its discretion to strike one or more of the firearm enhancements
pursuant to section 12022.53, subdivision (h).
The Resentencing Hearing
On remand, Bolden filed a motion inviting the trial court to exercise its
discretion to dismiss one or more of the firearm enhancements. At the outset
of the resentencing hearing, Bolden’s appointed counsel stated, “Mr. Bolden
is in state prison. At this point in time, waiving his appearance for this
particular hearing.” Defense counsel then submitted on the written motion,
without further argument, and the trial court denied the motion.
Bolden appeals.
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DISCUSSION
I. Remand is Necessary Because Bolden Did not Waive His Right to Be
Present at the Resentencing
Bolden’s primary argument on appeal is that he did not waive his
presence at the resentencing hearing and the trial court therefore erred by
holding the hearing in his absence. The People concede this was prejudicial
error and that remand for resentencing is appropriate. We agree.
“A criminal defendant's right to be personally present at trial is
guaranteed under the federal Constitution by the confrontation clause of the
Sixth Amendment and the due process clause of the Fourteenth Amendment.
It is also required by section 15 of article I of the California Constitution and
by sections 977 and 1043.” (People v. Concepcion (2008) 45 Cal.4th 77, 81
(Concepcion).) This right extends to all “ ‘critical stages of the criminal
prosecution’ ” and includes sentencing and resentencing. (See People v.
Cutting (2019) 42 Cal.App.5th 344, 347–348 (Cutting).)
The right to be present may be waived. (Concepcion, supra, 45 Cal.4th
at p. 82.) However, pursuant to section 977, subdivision (c), in all cases in
which a felony is charged, the defendant shall be personally present at the
time of the imposition of sentence unless the defendant executes a written
waiver of their right to be present. The right to be present at the imposition
of sentence includes the right to be present at a resentencing hearing, as the
trial court has discretion to reconsider the entire sentence on remand for
resentencing. (See Cutting, supra, 42 Cal.App.5th at p. 348.)
Here, the record does not contain any evidence of a written waiver. To
the contrary, Bolden contends he did not waive his right to be present in any
capacity. The only evidence of any form of waiver is defense counsel’s
statement at the outset of the resentencing hearing. As the People concede,
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at a minimum, the oral statement of counsel did not satisfy the requirements
of section 977, subdivision (c).2
As the People further concede, the error resulted in a violation of
Bolden’s statutory and constitutional rights and requires reversal. Because
Bolden’s federal constitutional rights are implicated, the standard set forth in
Chapman v. California (1967) 386 U.S. 18 applies and the error is prejudicial
and requires reversal unless we can conclude beyond a reasonable doubt that
it did not affect the outcome of the proceeding. (See Id. at p. 24; Cutting,
supra, 42 Cal.App.5th at pp. 347-348.) Here, had Bolden been present at the
hearing, he may have “offered mitigation factors that arose after his original
sentencing; he may have expressed remorse; he may have made a plea for
leniency.” (Cutting, supra, 42 Cal.App.5th at p. 350.) Accordingly, we cannot
conclude that the error was harmless beyond a reasonable doubt and,
therefore, must reverse and remand the matter once more for resentencing.
II. Ineffective Assistance of Counsel
Bolden also contends the order should be reversed because his trial
counsel provided ineffective assistance of counsel by proceeding with the
resentencing hearing in his absence. However, he concedes that there is no
need for this court to adjudicate the ineffective assistance of counsel issue if
this court agrees, as we do, that reversal is required based on the violation of
his right to be present at the hearing in the first instance. Accordingly, we
expressly decline to address the ineffective assistance of counsel claim.
2 Bolden contends the statement was ambiguous and insufficient to
establish any waiver. We need not, and expressly do not, reach this
argument as we and the parties agree remand is appropriate in any event
based on section 977, subdivision (c).
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Bolden also filed a petition for a writ of habeas corpus in which he
largely repeats his contentions regarding his ineffective assistance of counsel
claim and provides a declaration from trial counsel explaining the error. We
previously issued an order stating the petition would be considered
concurrently with this appeal. Because we afford Bolden complete relief in
this appeal, we, concurrently and by separate opinion, dismiss the habeas
corpus petition as moot.
DISPOSITION
The order of the superior court denying Bolden’s motion for
resentencing is reversed and the matter is remanded to the trial court with
directions to conduct a new resentencing hearing in accordance with the
views expressed in this opinion.
BENKE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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