THE PEOPLE v. CARLEN ARROYO (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Carlen Arroyo appeals from the judgment entered when he was resentenced for murder and attempted murder after the federal district court granted his habeas corpus petition because two street gang benefit enhancements that the jury found true were not supported by substantial evidence.   Although the resentencing hearing was held ex parte, we hold that neither his rights to counsel nor to be personally present were violated.   However, as respondent concedes, certain clerical errors in the abstract of judgment must be corrected.   We will order that those corrections be made and affirm the judgment as so modified.

FACTS AND PROCEDURAL HISTORY

In July 2008, Arroyo filed a habeas corpus petition with the United States District Court on several grounds, including the absence of sufficient evidence to support the street gang benefit allegations.   In January 2010, after adopting the findings and recommendations of a federal magistrate, the district court granted Arroyo's habeas corpus petition on only one ground:  there was insufficient evidence to support the street gang benefit allegations.   The district court's judgment ordered that the matter be “remanded to the state trial court for the resentencing of [Arroyo] in a manner consistent with the Report and Recommendation․”  Respondent chose not to appeal that order.

On remand, the trial court resentenced Arroyo without a hearing and without the presence of Arroyo or counsel for either side.   The trial court did so, it said, because the magistrate's finding left it with only one possible task -striking the street gang enhancements that had been added to Arroyo's sentence.   Those enhancements had no effect on the murder charge, the trial court said.   As for the attempted murder charge, striking the enhancement meant that Arroyo became eligible for parole after seven years, instead of the 15-year wait mandated by the street gang provision.  (Pen.Code, § 186.22, subd. (b)(5).)   Because of this, the trial court said, the habeas corpus decision had “little effect on the sentence,” thus explaining why Arroyo was not present in court.   The resentencing order was then served on both Arroyo and his lawyer.

Arroyo contends the trial court's procedure violated his statutory and constitutional rights to counsel and to be personally present at the resentencing hearing.   He also contends that certain clerical errors in the abstract of judgment must be corrected.

DISCUSSION

1. The Ex Parte Hearing Did Not Violate Arroyo's Rights to Be Present or to Be Represented by Counsel

A criminal defendant's right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, by article I, section 15 of the California Constitution, and by Penal Code sections 977, subdivision (b)(1) and 1043, subdivision (a).  (People v. Wallace (2008) 44 Cal.4th 1032, 1052.)   These rights apply at sentencing hearings.  (Pen.Code, § 1193, subd. (a) [a defendant shall be present during sentencing, unless he waives that right and asks that his lawyer appear instead];  see also People v. Rodriguez (1998) 17 Cal.4th 253, 257.)   However, a defendant does not have a right to be present at every hearing that takes place during a trial.   Instead, his presence is required if it bears a reasonable and substantial relation to his full opportunity to defend against the charges.   Even if these rights are violated, the defendant must show that the violation resulted in prejudice or violated his right to a fair and impartial trial.²  (Wallace, supra, at p. 1052.)

A defendant's right to counsel under the Sixth Amendment to the federal Constitution 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.)   While Sixth Amendment violations that pervade an entire proceeding are structural errors that are reversible per se, where the violation is more limited in nature and it can be shown that the error was harmless beyond a reasonable doubt, the judgment will be affirmed.   (Satterwhite v. Texas (1988) 486 U.S. 249, 256;  People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1027-1028.)   Even though the California Constitution also provides for a right to counsel, because a federal constitutional right is involved, the beyond-a-reasonable-doubt standard of harmless error applies.  (People v. Lewis (2006) 139 Cal.App.4th 874, 884.)   Arroyo contends the error is structural per se because his right to counsel was denied in its entirety.   We disagree.   This was not a complete deprivation of the right to counsel such that it pervaded the entire proceedings, but was limited to the resentencing hearing.

We conclude that under the unique facts of this case, Arroyo's rights to counsel and to personally attend criminal proceedings were not violated.   As the trial court noted, and as respondent contends, the federal district court remanded the matter to the trial court with directions to resentence Arroyo in a manner consistent with the magistrate's finding that there was insufficient evidence to support the jury's findings that the crimes were committed for the benefit of a criminal street gang.   In accord with that directive, the trial court took the only possible course of action open to it - altering Arroyo's sentence to reflect the deletion of the gang enhancements by reducing the minimum parole eligibility period on the only applicable count (attempted murder) from 15 years to seven years.

In short, the trial court had no discretion in the matter but to reduce Arroyo's sentence in that manner.   Arroyo does not contend otherwise.   Because the resentencing hearing was the result of Arroyo's successful habeas petition, and because the trial court could have taken no other action, the presence of Arroyo or his lawyer could have had no effect on the outcome.   Therefore, his substantial rights were not at stake and his presence bore no relation to his ability to defend against the outcome.   Accordingly, his statutory and constitutional rights to appear and be represented by counsel never came into play.   Alternatively, for the same reasons just discussed, even if those rights were violated, Arroyo suffered no prejudice because no other outcome was possible.³

2. Modification of Judgment

Arroyo contends the abstract of judgment must be modified to correct two clerical errors:  (1) even though the abstract does not impose a gang enhancement, on page two it states that Arroyo's minimum parole eligibility period of seven years is subject to Penal Code section 186.22;  and (2) although the abstract includes Arroyo's presentence custody credits of 341 days, it does not include credit for the 1,692 days he spent in custody from the date of the original sentencing hearing of August 16, 2005, until he was resentenced on April 5, 2010.⁴  In connection with the first error, Arroyo contends that not only should the erroneous reference to Penal Code section 186.22 be eliminated, but that we should direct the entry of language stating that no minimum gang parole terms apply because the gang findings were reversed.

Respondent concedes that the reference to Penal Code section 186.22 should be eliminated, and that the post-conviction custody credits should be added in, but contends that the language concerning the reversal of the gang enhancements is unnecessary.   We agree.   We will therefore order the abstract of judgment modified to correct the clerical errors.

DISPOSITION

The judgment is modified to delete the phrase “based on Penal Code section 186.22(B)(5)” from line three of section 11 on page two of the abstract of judgment.   It is also modified to increase the number of custody credits by 1,692 days for a total of 2,033 days of custody credits.   The trial court is directed to modify the abstract of judgment accordingly and then send corrected copies of the abstract to the Department of Corrections and Rehabilitation.   The judgment is affirmed in all other respects.

WE CONCUR:

FOOTNOTES

FN1. We do not state the facts of Arroyo's crimes because they are not relevant..  FN1. We do not state the facts of Arroyo's crimes because they are not relevant.

FN2. Although these rights may be waived, there is no indication that Arroyo ever did so..  FN2. Although these rights may be waived, there is no indication that Arroyo ever did so.

FN3. Arroyo contends harmless error cannot be shown because a new trial motion was “arguably still cognizable.”   Because Arroyo does not describe the grounds for any such motion, his contention is speculative at best and we therefore deem it waived..  FN3. Arroyo contends harmless error cannot be shown because a new trial motion was “arguably still cognizable.”   Because Arroyo does not describe the grounds for any such motion, his contention is speculative at best and we therefore deem it waived.

FN4. The parties agree that this is the correct figure..  FN4. The parties agree that this is the correct figure.

FLIER, J. GRIMES, J.