People v. Motuapuaka CA1/3 ( 2022 )

Filed 3/28/22 P. v. Motuapuaka CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A161306
v.
SIONE MOTUAPUAKA, (San Mateo County
Super. Ct. No. SC068620A)
Defendant and Appellant.
Defendant Sione Motuapuaka appeals an order resentencing him after
the trial court was made aware of an error in his original sentence. He
contends he was deprived of his constitutional and statutory rights to be
present at the hearing. We agree defendant had a right to be present that he
did not waive, and because we are not persuaded beyond a reasonable doubt
that this error was harmless, we remand the matter for resentencing.
BACKGROUND
This case arises out of a plea agreement defendant made in 2010. He
was charged with seven counts of second degree burglary, one count of
attempted robbery, four counts of second degree robbery, five counts of
possession of a firearm by a felon, one count of theft, one count of false
imprisonment, one count of kidnapping, one count of kidnapping for purposes
of robbery, two counts of oral copulation by force or fear, and one count of
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assault with a firearm, along with numerous enhancement and prior
conviction allegations.
Defendant entered into a negotiated disposition whereby he pled guilty
to two counts of second degree burglary (Pen. Code, § 460, subd. (b); counts 1
and 4)1, four counts of second degree robbery (§ 212.5, subd. (c); counts 7, 11,
14, and 18); false imprisonment (§ 236; count 8); kidnapping (§ 207, subd. (a);
count 23), and assault with a firearm (§245, subd. (a)(2); count 24). He also
admitted, among other allegations, three firearm enhancements under
section 12022.53, subdivision (b) (§ 12022.53(b)) and one under section 12022,
subdivision (a)(1). The plea form indicated that the maximum possible
sentence for these offenses was 66 years but that the parties stipulated
defendant would receive a term of 60 years. The trial court imposed the
negotiated prison sentence on March 5, 2010.2
Ten years later, the CDCR notified the trial court of a possible error in
the sentence, in that the sentence included three full 10-year terms for the
section 12022.53(b) firearm enhancements, and two of them, which were
attached to subordinate terms for the substantive offenses (counts 7 and 14),
should have been instead one-third the middle term, or three years and four
months each. (§ 1170.1, subd. (a).)
Defendant filed a motion to correct the sentence, asking the court to
reduce the two ten-year enhancements for counts 7 and 14 to three years and
four months each, for a total prison term of 46 years and eight months. In
1 All undesignated statutory references are to the Penal Code.
2 Defendant appealed, and a different panel of this division reversed
the requirement that defendant register as a sex offender, remanded for the
trial court to exercise its discretion on that issue under the correct legal
standard, and otherwise affirmed the judgment. (People v. Motuapuaka (Dec.
27, 2010, A127998) [nonpub. opn.].) On our own motion, we take judicial
notice of the record and opinion in defendant’s prior appeal.
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response, the People acknowledged the sentence must be corrected to reduce
those subordinate enhancements to one-third the middle term, and they
further explained that the one-year firearm enhancement under section
12022, subdivision (a)(1) should be reduced to four months, for the same
reason. If there were no further changes to the sentence, it would then be 46
years. But the People also noted that when resentencing, the court had
discretion to reconsider all aspects of the sentence, as long as the new
sentence did not exceed the initial aggregate sentence. (See People v. Hill
(1986) 185 Cal.App.3d 831, 833-835.) The People asked the court to
resentence defendant to a term as close to the originally agreed-upon 60
years as possible by imposing for the principal term, count 23, the aggravated
term of eight years (doubled for a strike prior) rather than the middle term of
five years that had been included in the original sentence, for a total term of
52 years after the terms for the firearm enhancements were reduced.
At the September 24, 2020 resentencing hearing, defendant’s counsel
announced his appearance and said defendant was “not present. He’s a
sentenced CDC prisoner. I’m appearing on his behalf.”
The prosecutor set forth the factual basis for the plea, which was part
of the record of the 2010 proceedings: “[T]he defendant had previously been
convicted of a strike offense, that being an attempted robbery, in 1994. And
then in this case, between January 3rd of 2009 and February 8th of 2009, the
defendant committed five armed robberies, a burglary, a kidnapping, and a
sexual assault against one of those robbery victims, all in San Mateo County.
“On January 3rd of 2009, the defendant, while armed with a firearm,
attempted to rob the owner of the Daly City Liquor Store. He was
unsuccessful only because the store owner refused to give him the money.
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“On the next day, January 4th, 2009, Defendant committed a
commercial burglary at the San Bruno Target store. During the commission
of that crime, Defendant lit and threw a firecracker to distract the security
personnel and then left the store without paying for the store property in his
possession.
“On the next day, January 5th, 2009, Defendant, while armed with a
firearm, robbed an employee of [a flower shop] in Colma. During the
commission of the crime, he falsely imprisoned the employee in the bathroom.
“On January 16th of 2009, Defendant, while armed with a firearm,
robbed the owner of [a donut] store in Daly City.
“On January 28th of 2009, Defendant, while armed with a firearm
robbed an employee at the Subway sandwich shop in Daly City.
“On February 8th of 2009, Defendant, while armed with a firearm,
robbed a female employee of [a] gas station located in San Bruno. During the
commission of that crime, he forcibly moved the employee into a secluded
area of the store where he bound and blindfolded her and forcibly made her
orally copulate him.”
That factual basis, the prosecutor argued, provided circumstances in
aggravation sufficient to support the upper term for the kidnapping.
The trial court agreed with the prosecutor’s recommendation. It noted
first that defendant had faced a potential term of 172 years to life if convicted
of all the crimes with which he was charged and that the intent of the plea
bargain was that he would receive a 60-year term. The court went on, “He
will receive a total of 52 years. So that seems appropriate,” and concluded
that “[g]iven all of the circumstances, . . . there are factors in aggravation
which include . . . the threat of great bodily harm, violence, a high degree of
cruelty, viciousness, callousness, and the crime was carried out in a manner
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which indicates planning and sophistication.” Using the aggravated eight-
year term for the kidnapping as the principal term, the court calculated the
remaining terms in a manner that resulted in a 52-year sentence.
DISCUSSION
I. Right to be Present at Resentencing Hearing
Defendant contends on appeal that he was deprived of his
constitutional and statutory right to be present at the resentencing hearing.
The Attorney General argues there was no constitutional violation. He
concedes the state law procedures for waiving personal presence were not
followed but contends defendant suffered no prejudice from the error.
A defendant charged has a right guaranteed both by statute and by the
federal and state constitutions to be present during all critical stages of a
prosecution, including sentencing. (People v. Robertson (1989) 48 Cal.3d 18,
60; People v. Cutting (2019) 42 Cal.App.5th 344, 348-349 (Cutting); People v.
Sanchez (2016) 245 Cal.App.4th 1409, 1414; People v. Simms (2018) 23
Cal.App.5th 987, 996 (Simms) [right to be present extends to resentencing];
Cal. Const., Art. 1, § 15; Pen. Code, §§ 977 & 1043.) The Attorney General
makes no claim that these rights do not extend to the resentencing hearing at
issue here.
The right to be present, however, may be waived. For constitutional
purposes, a waiver of the right to be present is valid if it is “knowing,
intelligent, and voluntary.” (People v. Cunningham (2015) 61 Cal.4th 609,
633; Simms, supra, 23 Cal.App.5th at p. 996.) Our high court has described
as “unsettled” the question of whether a waiver by defense counsel is
effective, but has explained that “ ‘[a]t a minimum, there must be some
evidence that the defendant understood the right he was waiving and the
consequences of doing so.’ ” (People v. Mendoza (2016) 62 Cal.4th 856, 899
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(Mendoza).) In People v. Davis (2005) 36 Cal.4th 510, 531-532, our high court
found the evidence insufficient when the record showed only that defense
counsel represented to the court that counsel had discussed with the
defendant a pretrial hearing on the admissibility of certain tape recordings
and that the defendant would waive his presence. But there was no evidence
defense counsel informed the defendant of his right to attend the hearing or
that the defendant understood that by absenting himself he would be unable
to contribute to the discussion of the tape recording’s contents. (Id. at p. 532.)
The same is true here. Defense counsel merely told the trial court
defendant was not present, that he was a sentenced CDC prisoner, and that
counsel was appearing on his behalf. He made no representation that
defendant knew he had a right to be present or that he voluntarily waived it.
This does not amount to substantial evidence of a knowing and voluntary
waiver. Indeed, counsel’s explanation that defendant was a prisoner suggests
he believed defendant was not entitled to be present. With his notice of
appeal, defendant submitted a letter his counsel sent him after the hearing
reporting on its results, and nothing in it indicates defendant knowingly
waived his presence at the hearing.
We thus agree with defendant he was deprived of his constitutional
right to be present at the hearing. As a result, we must reverse unless the
error was harmless beyond a reasonable doubt. (Mendoza, supra, 62 Cal.4th
at p. 902, citing Chapman v. California (1967) 386 U.S. 18, 23.)3
We conclude this standard has not been met. We recognize that
defendant bargained for a 60-year stipulated sentence and, as the trial court
3We thus need not address whether defendant was also deprived of his
statutory right to be present, which requires a written waiver, so as to trigger
the more lenient prejudice standard for state law error. (People v. Watson
(1956) 46 Cal.2d 818, 836; § 977, subd. (b)(1).)
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noted, he received the benefit of his bargain. We also recognize that the court
found factors in aggravation to support the upper term when resentencing
defendant, factors that defendant does not argue are improper. Nevertheless,
the trial court’s decision to substitute the upper for the middle term on the
principal count was a discretionary one, and in exercising its discretion the
trial court could properly take into account “ ‘any pertinent circumstances
which have arisen since the prior sentence was imposed.’ ” (People v. Buycks
(2018) 5 Cal.5th 857, 893 (Buycks); accord, Cutting, supra, 42 Cal.App.5th at
p. 350.) Here, defendant’s absence prevented him from showing a change in
his circumstances since the original sentencing.
Cutting is instructive on this point. The defendant there entered into
an open plea, and the trial court imposed a sentence of approximately 19
years, about two years short of the maximum statutory sentence for the
offenses. (Cutting, supra, 42 Cal.App.5th at p. 346.) On appeal,
enhancements totaling nine years were ordered stricken based on an
intervening change in the law, and the matter was remanded for
resentencing in light of all relevant factors. Defendant was not present at the
resentencing hearing, at which the trial court ordered subordinate terms to
be served consecutively rather than concurrently as in the original sentence.
(Id. at pp. 347-348.) The defendant again appealed, and after concluding he
was deprived of his constitutional right to be present at a critical stage of the
proceedings, the reviewing court found the error was not harmless beyond a
reasonable doubt. (Id. at pp. 348, 350.) The court reasoned that on remand,
the trial court “had jurisdiction to modify every aspect of the sentence” and
could consider circumstances since the original imposition of sentence, for
instance, mitigating factors that arose after the original sentencing, an
expression of remorse, or a plea for leniency. (Id. at p. 350.) The court could
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not conclude beyond a reasonable doubt that the defendant’s presence would
not have affected the trial court’s exercise of its discretion.
Cutting is to some extent distinguishable because it involved an open
plea (Cutting, supra, 42 Cal.App.5th at p. 346), and defendant here accepted
a stipulated term of 60 years. But like the defendant in Cutting, defendant
might have been able, had he been present, to express sincere remorse for his
actions, to show that he had taken steps to reform his life or make amends, or
in some other way to persuade the court to show mercy. The Attorney
General points out that the record contains no evidence of such mitigating
factors, but in defendant’s absence, it is unclear how such evidence could
have made its way into the record. Whether or not it is likely the court would
exercise its discretion to impose a sentence below the maximum permissible,
we cannot say beyond a reasonable doubt that it would not have done so, had
defendant been present.
We recognize that in In re Guiomar (2016) 5 Cal.App.5th 265 (affd. on
another point in Buycks, supra, 5 Cal.5th at pp. 896-897), the court found
harmless beyond a reasonable doubt the defendant’s absence from a
resentencing hearing because he did not show he was making efforts at
rehabilitation. (Guiomar, at p. 279.) But we find Cutting’s analysis more
persuasive on this point. Nothing but speculation suggests the trial court
would have rejected any appeal defendant made because nothing in the
record shows what he could have said or shown. Bearing in mind that the
People bear the burden to show that constitutional error is harmless beyond
a reasonable doubt (Cutting, supra, 42 Cal.App.5th at p. 349), we conclude
they have not done so. The matter must therefore be remanded for a
resentencing hearing at which defendant is present, unless he makes a
proper waiver.
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II. Custody Credits
Defendant also contends the trial court erred in failing to calculate his
custody credits as of the time of resentencing.
It is the duty of the trial court to calculate custody credits while
imposing sentence. (§ 2900.5, subd. (d).) And when a defendant is
resentenced after a judgment is modified during the term of imprisonment,
the defendant must receive credit for the time already served. (§ 2900.1;
People v. Buckhalter (2001) 26 Cal.4th 20, 23.) As the Attorney General
acknowledges, the trial court neglected to calculate custody credits when it
resentenced defendant. Since we are remanding the matter for a new
resentencing hearing, we also direct the court to calculate defendant’s credits
for the time he has served in custody when resentencing him.
DISPOSITION
The September 24, 2020 order is reversed. The matter is remanded for
the trial court to conduct a new resentencing hearing in accordance with the
views expressed in this opinion. After doing so, the court shall prepare an
amended abstract of judgment and forward a copy to the California
Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
RODRÍGUEZ, J.
People v. Motuapuaka (A161306)
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