THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY MARVIN SANTOS, Defendant and Appellant.
C096979
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
Filed 3/14/24
CERTIFIED FOR PUBLICATION; (Super. Ct. No. 03F6857)
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs and Michael A. Canzoneri, Deрuty Attorneys General, for Plaintiff and Respondent.
Defendant Timothy Marvin Santos was originally sentenced in 2007. His sentence included a term of 25 years to life under the original Three Strikes law, prior prison term enhancements under
Although the People initially argued for affirmance of the challenged order, they later sought leave to file a supplemental brief changing their position on both issues based on their new assertion that thе trial court was required to resentence defendant under the current penalty provisions set forth in the Reform Act. Because this is incorrect, we reject the People‘s concessions and affirm the judgment.
I. BACKGROUND
A. Factual Background
In 2007, defendant was convicted of possession with intent to manufacture methamphetamine (count 1), conspiracy to manufacture methamphеtamine (count 2), and four misdemeanor drug and child endangerment charges (counts 4-7). In a bifurcated proceeding, the court found true that defendant had been convicted of two or more serious or violent felonies under the former Three Strikes law, that he served three separate prison terms under
The trial court sentenced defendant to a total term of 36 years to life in prison: 25 years to life under the former Three Strikes law for count 2, plus two years for prior prison term enhancements under
In July 2022, the trial court resentenced defendant in his absence to 25 years to life for count 2. The 25-year-to-life term for count 1 remains stayed.
This case involves the interplay between resentencing under
1. Section 1172.75
Subdivision (a) of
2. The Reform Act
“Under the ‘Three Strikes’ law as originally enacted in 1994, an individual convicted оf any felony offense following two prior convictions
“In the Reform Act, the voters also established a procedure for ‘persons presently serving an indeterminate term of imprisonment’ under the prior version of the Three Strikes law to seek resentencing under the Reform Act‘s revised penalty structure. ([]
II. DISCUSSION
A. Retroactivity of the Reform Act
Defendant argues the trial court erred in sentencing him to 25 years to life because he was entitled to a “full resentencing” under
In Conley, our Supreme Court addressed the retroactivity of the Reform Act. Specifically, our Supreme Court decided “whether third strike defendants who were sentenced under the Three Strikes law before November 7, 2012, but whose judgments were not yet final as of that date, are entitled to аutomatic resentencing under the revised penalty provisions of the Reform Act.” (Conley, supra, 63 Cal.4th at p. 652.) The court concluded they were not and “instead may seek resentencing by petitioning for recall of sentence under section 1170.126.” (Ibid.) Defendant argues Conley has no application to his case because the Estrada3 rule, which was discussed in Conley, has no application here. As we explained in Kimble, this assertion is incorrect. (Kimble, supra, 99 Cal.App.5th at p. 757.)
The so-called Estrada rule derives from our Supreme Court‘s decision in Estrada, supra, 63 Cal.2d 740, which addressed whether when “[a] criminal statute is amended after the prohibited act is committed but before final judgment by mitigating the punishment,” the statute in effect when the act was committed or the amended statute should apply. (Id. at p. 742.) There, the amendatory act had been passed after the criminal act was committed but became effective before trial. (Id. at p. 744.) The Estrada court explained that generally, “when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended thе statute to operate prospectively and not retroactively.” (Id. at p. 746.) Thus, it was previously understood that “the punishment in effect when the act was committed should prevail.” (Id. at p. 742.) However, the Estrada court held that “where the amendatory statute mitigates punishment and there is no savings clause, the rule is that the amendment will operate retroactively so that the lighter
In Conley, our Supreme Court held that, as to the revised penalty provisions in the Reform Act, the Estrada rule was overridden by
Defendant asserts the trial court was required to apply the current version of the Three Strikes law to lessen his sentence under
If the Legislature had intended to amend the Reform Act, its ability to do so would have been constrained. “The Legislature may not amend an initiative statute without subsequent voter approval unless the initiative permits such amendment, ‘and then only upon whatever conditions the voters attached to the Legislature‘s amendatory powers.‘” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568 (Pearson).) Section 11 of the Reform Act states, in relevant part, that the Legislature may only amend it via statute if the statute passes with a two-thirds vote. The parties do not challenge the court‘s conclusion in Guevara that these requirements were not met. (Guevara, supra, 97 Cal.App.5th at p. 985, review granted.) Rather, the People contend
Our Supreme Court has described an amendment “as ‘a legislative act designed to change an existing initiative statute by adding or taking from it some particular provision.’ [Citation.] But this does not mean that any legislation that concerns the same subject matter as an initiative, or even augments an initiative‘s provisions, is necessarily an amendment for these purposes. ‘The Legislature remains free to address a “related but distinct area” ’ [citations] or a matter that an initiative measure ’ “does not specifically authorize or prohibit.” ’ ” (Pearson, supra, 48 Cal.4th at p. 571.) In deciding whether a particular piece of legislation has amended an initiative, our Supreme Court has framed the question as simply whether the legislation “prohibits what the initiative authorizes, or authorizes what the initiative prohibits.” (Ibid.)
We agree with Guevara, supra, 97 Cal.App.5th at pages 985 to 986, review granted, that the parties’ interpretation of
Therefore, thе trial court did not err in keeping intact defendant‘s 25-year-to-life sentence.
B. Defendant‘s Absence at Resentencing
1. Procedural Background
Resentencing was initially scheduled for April 26, 2022. When the matter was called, defendant remained in custody and was not present. The court stated, “I think the Defendant would have a right to attend; although I gave you the Court‘s tentative in the Minute Order to strike those enhancements that I think apply. [] . . . [] So he knows essentially what the Court is headed to do.” Defense counsel stated, “In my dealings with Mr. Santos, he usually does like to be present.”
On May 5, 2022, defendant was again absent and defense counsel represented that “he wants to attend.” On June 16, 2022, defendant was not present and defense counsel said, “he would like to be present and I have not brought him yet” and asked for a сontinuance. Defense counsel also stated, “I could waive his appearance. He does communicate he wants to come” before the continuance was granted.
On July 21, 2022, defendant was not present. He was represented by different defense counsel who said counsel who appeared at the earlier hearings “has been in сommunication with him. I understand that he is willing to waive his appearance.” The court resentenced defendant.
2. Harmless Error
Defendant argues this case should be remanded for another sentencing hearing because holding the hearing in his absence without a waiver by him of his right to attend violated his constitutional rights.
The parties agree that defendant had a constitutional right to be present at his resentencing hearing. (People v. Cutting (2019) 42 Cal.App.5th 344, 347-348.) “A defendant may waive [their] constitutional right to be present . . . ‘as long as [their] waiver is voluntary, knowing and intelligent.‘” (People v. Nieves (2021) 11 Cal.5th 404, 508.) In addition, defense counsel may waive the
We conclude any error in accepting counsel‘s waiver was harmless. “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.” (People v. Davis, supra, 36 Cal.4th at p. 532.) “Under that standard, the error ‘may be deemed harmless only if we can conclude beyond a reasonable doubt that the deprivation did not affect the outcome of the proceeding.‘” (People v. Cutting, supra, 42 Cal.App.5th at p. 348.)
Defendant argues we “cannot know what [he] would have offered in mitigation of his sentence because he was not present for the resentencing hearing.” As the People noted in their initial respondent‘s brief before changing their position in supplemental briefing, defendant сould have offered no further assistance because, as to the only part of the sentence that stands, defendant was not eligible for “reduction of his term under the three strikes law based on
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
DUARTE, Acting P. J.
/S/
KRAUSE, J.