People v. Venable CA2/6 ( 2021 )

Filed 3/8/21 P. v. Venable CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B306069
(Super. Ct. No. TA039602)
Plaintiff and Respondent, (Los Angeles County)
v.
ELVIS VENABLE, JR.,
Defendant and Appellant.
Elvis Venable, Jr. (Venable) appeals orders correcting his
unauthorized sentence and denying his requests to strike a
firearm enhancement imposed pursuant to Penal Code section
12022.53, subdivision (d), and to hold a juvenile offender
proceeding pursuant to People v. Franklin (2016) 63 Cal.4th 261,
284 (Franklin).1 We affirm the order correcting Venable’s
sentence and direct the trial court to award Venable’s actual
custody credit as discussed herein.
1 All statutory references are to the Penal Code.
The trial court’s rulings regarding the remaining issues
arise from Venable’s amended petition for habeas corpus and are
not appealable orders. (Robinson v. Lewis (2020) 9 Cal.5th 883,
895.) We address the issues, however, in Venable’s
contemporaneous petition for writ of habeas corpus. (In re
Venable (B306683).)
FACTUAL AND PROCEDURAL HISTORY
In 1998, the Los Angeles County prosecutor charged
Venable with willful, deliberate, and premeditated attempted
murder, and personal use and discharge of a firearm causing
great bodily injury. (§§ 664, 187, subd. (a), 12022.53, subd. (d).)
The prosecutor also alleged that Venable suffered four prior
serious or violent felony juvenile strike adjudications. (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d).) At the time of the
attempted murder, Venable was 25 years old. The four strike
adjudications occurred when Venable was 15 years old.
The jury convicted Venable of the attempted murder count
and found that he personally used and discharged a firearm
causing great bodily injury. In a separate proceeding, the trial
court found that the strike adjudications were true. The court
then sentenced Venable to 25 years to life for attempted murder
based upon the strike adjudications, plus a consecutive term of 25
years to life for the firearm enhancement, for a total term of 50
years to life. Venable appealed. In an unpublished opinion, we
affirmed his conviction. (People v. Venable (Oct.17, 2000,
B131029).)
On June 12, 2018, Venable filed a petition for writ of coram
nobis in the trial court. He contended that the court erred by
applying the four strike adjudications to his sentence because he
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incurred them when he was 15 years old. The court denied the
petition.
On August 27, 2018, Venable filed a petition for writ of
coram nobis in this court. We issued an order treating the
petition as a petition for writ of habeas corpus and requested
informal opposition from the Attorney General. The order
specifically requested briefing concerning the validity of
Venable’s strike adjudications, whether his sentence was
unauthorized, and whether we should issue an order to show
cause returnable to the superior court to resentence Venable.
After further review, we issued this second order
requesting additional informal briefing: “[T]he court requests
additional informal briefing on the following two issues: (1) If
habeas relief is granted and the matter is remanded to the
superior court for resentencing, is petitioner entitled to the
benefit of Senate [Bill No.] 620, such that the trial court may
exercise its discretion to strike the 25-years-to-life firearm
enhancement under the recent amendment to Penal Code section
12022.53, subdivision (h)? [¶] (2) It appears that petitioner was
25 years old at the time he committed the current offense of
attempted murder. If habeas relief is granted and the matter is
remanded for resentencing, is petitioner entitled to a Franklin
hearing?” (Italics added.)
Following informal briefing and the Attorney General’s
concession regarding application of the juvenile adjudications, we
issued an order to show cause returnable to the superior court
“for the purpose of correcting Venable’s sentence and issuing a
new abstract of judgment.” (Italics added.) We further ordered
the superior court to “consider, in the first instance, whether
Venable is entitled to the benefit of [newly amended section
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12022.53], such that the trial court may exercise its discretion to
strike the firearm enhancement under . . . section 12022.53,
subdivision (h), and to a Franklin hearing, given that he was 25
years old at the time he committed the current offense of
attempted murder.” We directed the court to appoint counsel for
Venable and to allow counsel the opportunity to file an amended
petition for writ of habeas corpus addressing these two issues.
On May 15, 2019, the trial court decided that the order to
show cause did not require a resentencing, but instead, only a
correction to the abstract of judgment. The court then ordered
Venable to file an amended petition for writ of habeas corpus
addressing the firearm enhancement and Franklin issues.
On March 20, 2020, the trial court issued a written decision
denying the amended petition for writ of habeas corpus. The
court decided that Venable’s sentence was unauthorized but a
new sentencing hearing was not required; Venable’s judgment
was final, precluding consideration of the court’s discretion to
strike the firearm enhancement; and Venable had a remedy at
law to seek a Franklin hearing through section 1203.01. The
court struck the four strike adjudications and corrected Venable’s
sentence to 32 years to life – seven years to life for the attempted
murder count plus 25 years to life for the firearm enhancement.
Venable appeals and contends that the trial court erred by:
1) correcting his sentence in absentia, and 2) incorrectly
calculating his custody credit. He also purports to appeal the
court’s orders concerning his amended petition for habeas corpus.
These orders are not appealable and are considered in Venable’s
companion petition for habeas corpus.
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DISCUSSION
I.
Venable argues that the trial court violated his statutory
and constitutional rights to be personally present when it
corrected his sentence in his absence and without the presence of
his attorney. (Cal. Const., art. I, § 15; §§ 977, subd. (b)(1), 1193;
People v. Sanchez (2016) 245 Cal.App.4th 1409, 1414.) He asserts
that the court’s correction of his unauthorized sentence amounted
to a resentencing.
The defendant in a felony criminal case has the statutory
right to be personally present during the portion of the trial when
evidence is taken and the sentence imposed. (§§ 977, subd. (b)(1),
1043.) Pursuant to the Sixth and Fourteenth Amendments, a
defendant’s right to be present applies to critical stages where his
presence would contribute to the fairness of the proceeding.
(People v. Suarez (2020) 10 Cal.5th 116, 145-146; People v. Avila
(2006) 38 Cal.4th 491, 598.) Defendant’s right to be present
depends upon two conditions: 1) the proceeding is critical to the
outcome of the case, and 2) defendant’s presence would contribute
to fairness of the proceeding. (People v. Perry (2006) 38 Cal.4th
302, 312.) “ ‘ “Neither the state nor the federal Constitution, nor
the statutory requirements of sections 977 and 1043, require the
defendant’s personal appearance at proceedings where his
presence bears no reasonable, substantial relation to his
opportunity to defend the charges against him.” ’ ” (Suarez, at
p. 146.)
Venable had no constitutional right to be present when the
trial court reduced his sentence because the court made no
discretionary sentencing choices. Venable was convicted of a
single count with a statutorily prescribed sentence of seven years
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to life plus a then-mandatory firearm enhancement. (§ 3046,
subd. (a)(1) [minimum parole period of seven years for inmates
serving life sentence unless otherwise prescribed by law].) In the
writ proceeding before this court, the Attorney General conceded
that the strike adjudications were invalid and must be struck.
In any event, any constitutional error relating to Venable’s
presence during correction of sentence is harmless beyond a
reasonable doubt. (People v. Flinner (2020) 10 Cal.5th 686, 743;
People v. Mendoza (2016) 62 Cal.4th 856, 902 [under the federal
Constitution, error pertaining to a defendant’s presence is
evaluated under the harmless-beyond-a-reasonable-doubt
standard].) Venable was convicted of one felony count with a
firearm enhancement, each with a statutorily prescribed
punishment. The Attorney General conceded the strikes issue
and Venable received the sentencing benefit that he sought.
Venable’s presence would not have increased any benefit to him.
II.
Venable and the Attorney General agree that Venable is
entitled to custody credit from the date of his original sentencing
(February 25, 1999) through the date of amendment of the
abstract of judgment (March 2, 2020) to reflect the corrected
sentence.
When a trial court modifies a defendant’s sentence on
remand, the court shall recalculate the defendant’s actual
custody credit and award the credit in an amended abstract of
judgment. (People v. Buckhalter (2001) 26 Cal.4th 20, 23-24, 40-
41.) This duty emanates from section 2900.1, requiring that time
already served be credited upon any subsequent sentence the
defendant receives upon a new commitment for the same act.
(Buckhalter, at p. 41.)
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Venable incorrectly asserts, however, that this court’s order
to show cause vacated his initial sentence such that he was
restored to presentence custody between issuance of the order to
show cause and the date of the amended abstract of judgment.
“[A] convicted felon once sentenced, committed, and delivered to
prison is not restored to presentence status, for purposes of the
sentence-credit statutes, by virtue of a limited appellate remand
for correction of sentencing errors.” (People v. Buckhalter, supra,26 Cal.4th 20, 23.)
Here the trial court failed to award Venable’s actual
custody credit earned between February 25, 1999, and March 2,
2020.
DISPOSITION
The trial court is directed to amend the abstract of
judgment to reflect Venable’s additional custody credit as
discussed herein, and to forward the amended abstract to the
Department of Corrections and Rehabilitation. The order is
otherwise affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Michael J. Schultz, Judge
Superior Court County of Los Angeles
______________________________
James M. Crawford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez and Wyatt E. Bloomfield,
Deputy Attorneys General, for Plaintiff and Respondent.
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