32 Cal. App. 5th 352
Cal. Ct. App. 5th2019Background
- Rocha was convicted of first-degree murder with gang and firearm enhancements; trial court found a prior serious felony and a strike, and sentenced him to 80 years-to-life.
- After the conviction was affirmed, California amended Penal Code section 12022.53(h) (SB 620) to give trial courts discretion to strike 12022.53 firearm enhancements; the Supreme Court ordered reconsideration in light of the change.
- On remand this court again affirmed and directed the trial court to exercise its discretion under section 12022.53(h).
- The trial court issued a written statement declining to strike the firearm enhancement without holding a hearing and while neither Rocha nor counsel nor the prosecutor were present. Rocha appealed.
- Senate Bill 1393 later gave trial courts discretion to strike five-year prior serious felony enhancements (Pen. Code § 667(a)); Rocha asked the remand hearing also consider that newly available discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant had a right to be present with counsel when the trial court exercised discretion on remand under newly amended §12022.53(h) | People: remand ruling was not a "critical stage" and no right to be present; no constitutional violation | Rocha: remand decision is a critical stage; he and counsel must have opportunity to be heard before court exercises new discretion | Court: Under section 1260 and Rodriguez, remand requires a hearing in presence of defendant with counsel; reversal and remand ordered |
| Whether remand proceedings must allow counsel to present mitigation or other information to influence exercise of discretion under §12022.53(h) | People: not necessary; court can rule without hearing; any error harmless | Rocha: counsel might present mitigating evidence that could change outcome | Court: It is reasonably probable such input could affect outcome; hearing required so rights are protected |
| Whether trial court must also consider discretion to strike the five-year prior serious felony enhancement under amended §§667/1385 (SB 1393) on remand | People: beyond scope of previous limited remand and unnecessary given court’s refusal on firearm enhancement | Rocha: newly applicable law entitles him to have that discretion considered now | Court: SB 1393 applies; in interest of judicial economy trial court shall consider striking prior enhancement at the same remand hearing |
| Standard for reviewing the failure to afford hearing/presence (constitutional vs. statutory) | People: error, if any, assessed under constitutional harmless-beyond-a-reasonable-doubt (Chapman) | Rocha: reversal required; at least Watson harmlessness standard applies | Court: Resolved on statutory grounds (section 1260/Rodriguez); remand required under Watson standard and reversal ordered |
Key Cases Cited
- People v. Rodriguez, 17 Cal.4th 253 (requires defendant presence and counsel on remand when it is "just under the circumstances")
- People v. Superior Court (Romero), 13 Cal.4th 497 (trial court discretion to dismiss prior strike convictions)
- People v. Doolin, 45 Cal.4th 390 (Sixth Amendment right to counsel at critical stages, including sentencing)
- Chapman v. California, 386 U.S. 18 (standard for harmless constitutional error)
- People v. Watson, 46 Cal.2d 818 (standard for harmless error of state law)