People v. Fawcett CA5 ( 2023 )

Filed 7/6/23 P. v. Fawcett CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084528
Plaintiff and Respondent,
(Super. Ct. No. 18CR-02358)
v.
MARK RANDALL FAWCETT, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Donald E.
Shaver, Judge.†
Michael Allen, 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, Christopher J. Rench and
Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Before Franson, Acting P. J., Peña, J. and Snauffer, J.
†Retired judge of the Stanislaus Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
INTRODUCTION
A jury convicted defendant Mark Randall Fawcett of threatening state officials
(Pen. Code, § 76; count 1), criminal threats (§ 422, subd. (a); count 2), and disobeying a
court order (§ 166, subd. (a)(4); count 4, a misdemeanor) based on an incident during
which defendant yelled a threat to blow up the building at two court clerks outside of the
courthouse. (Undesignated statutory references are to the Penal Code.) In a bifurcated
proceeding, defendant admitted a prior prison term enhancement. The court sentenced
defendant to the upper term of three years’ imprisonment on count 2 and stayed a three-
year upper term sentence on count 1 and a six-month jail term as to count 4. The court
also imposed the one-year prior prison term enhancement for an aggregate sentence of
four years.
Defendant appealed the judgment and we previously concluded he was entitled to
a remand for resentencing in light of the passage of Senate Bill No. 567 (2021–2022 Reg.
Sess.) (Senate Bill 567), and that his prison prior enhancement must be stricken on
remand. In all other respects, we affirmed the judgment.
While defendant’s appeal was pending, the court held a hearing before the judge
who presided over defendant’s trial. At the outset of that hearing, the trial judge
disqualified himself from the case and transferred the matter to a different judge.
Following our court’s remand, a resentencing hearing was held before the trial judge who
had disqualified himself from the case while the appeal was pending. Defendant was
again sentenced to the upper term of three years on the criminal threat count (count 2) at
the resentencing hearing.
Defendant now appeals from the judgment following the resentencing hearing. He
asserts, and the People agree, the matter should be remanded for a new resentencing
hearing because the trial judge was unauthorized to preside over the resentencing hearing
after previously recusing himself from the case. Defendant also asserts there were no
valid aggravating factors to support imposition of the upper term sentence and his
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counsel provided ineffective assistance at the resentencing hearing. Finally, he contends,
and the People agree, the abstract of judgment issued after the resentencing hearing does
not reflect updated custody credits as required.
We remand for further proceedings consistent with this opinion. In all other
respects, we affirm the judgment.
FACTUAL BACKGROUND
In connection with a May 17, 2018, incident during which defendant yelled a
threat to blow up the building at court clerks in front of the courthouse, defendant was
charged with threatening a public official (namely, the court clerks), with the intent the
statement be taken as a threat and with the apparent ability to carry out the threat (§ 76,
subd. (a); count 1), criminal threats against the court clerks (§ 422, subd. (a); count 2),
resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1); count 3), and
disobeying a court order (§ 166, subd. (a)(4); count 4). A jury convicted defendant of
counts 1, 2, and 4 and could not reach a verdict on count 3, which the prosecutor
dismissed on his own motion. In a bifurcated proceeding, the court found true the prior
prison term enhancement alleged as to counts 1 and 2. The court sentenced defendant to
the upper term of three years’ imprisonment on count 2 plus one year for the prison prior
enhancement and stayed a three-year upper term on count 1 and a six-month jail term as
to count 4. Defendant appealed his convictions asserting, in part, his prison prior
enhancement should be stricken pursuant to Senate Bill No. 136 (2019–2020 Reg. Sess.)
(Senate Bill 136), and that he was entitled to remand for resentencing under Senate Bill
567.
On April 9, 2021, while defendant’s previous appeal was pending in our court, the
trial court held a “Modification” hearing. At the outset of that hearing, the Honorable
Donald E. Shaver stated the Chief Justice assigned him this case and he presided over the
trial in 2018. He explained he “was an assigned judge because all the judges on the
bench had recused themselves since [the case] involved court employees.” Judge Shaver
3.
then recused himself from the matter, stating: “[A]t this time I’m now a bench officer in
the county, as well too; so I do need to disqualify myself pursuant to [Code of Civil
Procedure section] 170.1 on that matter.” He directed the case be sent to a different
courtroom, and it was transferred to Honorable Ronald Hansen’s courtroom for
consideration of a request by one of the named victims in this case to extend a protective
restraining order.
Thereafter, in an unpublished opinion, our court held Senate Bill 567 entitled
defendant to a remand for resentencing and Senate Bill 136 required his prison prior
enhancement to be stricken. (People v. Fawcett (Mar. 4, 2022, F078256).) We rejected
defendant’s other challenges to his convictions and, in all other respects, affirmed the
judgment. (Ibid.)
After our court’s remand of the matter, the trial court held a resentencing hearing
on June 6, 2022, over which Judge Shaver presided. At the resentencing hearing, the
court stated it read and considered the court’s file and it took judicial notice of it. The
prosecutor argued, “in terms of some of the aggravating factors for this sentence,” the
court could consider that defendant waived a jury trial as to his prison prior and the court
found it true. He argued the court could consider “factors relating to the Defendant,”
including “[d]efendant’s prior convictions as an adult or sustained petitions in juvenile
delinquency proceedings are increasing in seriousness, which … would be relevant and
applicable here, as was the fact that the [d]efendant had served a prior prison term in
prison or county jail.” “Based on that,” the prosecutor asked for the aggravated sentence
of three years for defendant’s violation of section 422.
The following colloquy then ensued:
“[DEFENSE COUNSEL]: I would ask the Court to reconsider the
midterm. I believe at that time [defendant’s] history was not as dire as it
might be today, four years later.
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“And I do agree that the prison prior must be stricken, so that
definitely—I am kind of—reading the last few sentences of that opinion by
the 5th, it appears they only sent it back to be resentenced on the prison
prior. I might be wrong. It didn’t appear to me they sent it back for
everything, just to let the Court know where I’m coming from.
“THE COURT: It’s resentencing. So I think I need to do a complete
resentence.
“[DEFENSE COUNSEL]: Okay. All right. All right.
“[PROSECUTOR]: And I believe it does still apply as to the factors in
aggravation the Court needs to consider in terms of which, if any, triad’s
reached.
“[DEFENSE COUNSEL]: I would ask the midterm in that case, Your
Honor. [Defendant] has been in continuous custody since then.”
The parties submitted and the court reimposed the upper term explaining:
“So the case was returned by the 5th because the Court had
considered California Rules of Court 4.421(b)(1), which was appropriate at
the time, but, subsequently, new legislation prevented the Court from
considering that factor unless it was based on findings that the jury had
made as opposed to findings the judge had made.
“There were two other Rules of Court the Court considered at that
time, 4.421(b)(3) and subdivision (b)(5), and both of those the Court held
were appropriate for the Court to consider because they related to the prior
prison term, which the Court can see from the Court’s file—can gather
information from the Court’s file and take judicial notice of that. So that
does not require a finding by the jury before that can be considered.
“(b)(3) I initially said seemed applicable based on the fact that he
had served a prior prison term and poor performance on probation, and
(b)(5) had to do with—I found that to be appropriate because of prior
performance on probation as being unsatisfactory.
“This is a case of course where the Defendant is not an appropriate
candidate for Probation, and, accordingly, Probation is denied based on his
prior prison commitment.
“Of course the Court actually struck the prison prior, so that’s not
something I need to do here. That’s done and over with.
5.
“The Court said that what I needed to do at this time was to make a
decision then based on the triad and what the appropriate sentence would
be. I think it’s clear the mitigated term would not be appropriate. The
decision basically is between the midterm and the aggravated term.
“The Court’s view is that in deciding that the Court can’t just
automatically say, ‘Well, he’s got a prior prison term so I’m going to
choose the aggravated term,’ because that would indicate in my mind that
the Court is not really exercising discretion. So if it was something like an
almost unwritten rule that every time there’s a prior prison term he gets the
aggravated term, that would certainly be an inappropriate exercise of
discretion.
“So that makes me believe that I need to look at the prior prison term
and find out what about that prior prison term would make it something that
could be considered as a factor in aggravation, as opposed to not significant
enough to make any difference, meaning midterm at this time.
“So in looking at the court’s file to see if there’s something about
that prior prison term that should be considered a factor in aggravation, the
things that I considered were, first of all, what the prior prison term offense
was. It was a stalking charge on his prior prison term, which, in the Court’s
view, is somewhat similar to the case that he’s here for today, which had to
do with making threats to court employees as they were entering the
courthouse. Maybe not technically a stalking, but the same type of offense.
“The other thing I looked at is how old the prior prison term was. It
had to be within five years to be charged as a prior prison term, which is
somewhat irrelevant at this point, but, at any rate, to be aggravated it would
have to be something considerably less than five years in my mind to be
something that could be relied on as far as whether or not it would be
aggravated. He was sentenced in that case.
“To back up just a little bit, the other thing to look at of course is
how that sentencing came about. In his prior case, CRL011165, the prior
that was stricken, he was on probation and on his second violation of
probation. Probation was violated and that’s what sent him to state prison.
That happened on March 30th of 2016. And at that sentencing the judge
chose the aggravated term to send him to state prison, and he had
accumulated credits.
“This case occurred May 17th of 2018. So while I don’t know
exactly what date he was released from prison on this prior, it’s clear to me
that this offense occurred in very short order after his release from prison.
6.
“So the fact that it was a similar offense, that it occurred after he had
been out on—from the state prison a very short period of time before the
new offense was committed, and I think to a certain extent the fact that the
commitment that he had just gotten released from was an aggravated term,
the prior prison term, and that was aggravated because he continually
ignored the terms of probation by re-contacting the victim of the stalking.
“So the similarities, the short period of time, the aggravated term
that he received on the prior all in my mind add up to factors which the
Court can consider to determine whether or not the midterm or the
aggravated term would be appropriate here.
“And, based on that, I am going to go ahead and find that the factors
in aggravation outweigh those in mitigation and outweigh any
considerations of midterm, and I am going to go ahead and impose the
upper term of three years.”
The court noted defendant would be sentenced for the offenses which were
pending and that the probation department could do a calculation of credits at that time.
At the end of the hearing, the court further stated for the record:
“I was the trial judge on this case pursuant to assignment by the
Chief Justice as an assigned judge, and that assignment carries with it a tail
… that all proceedings related to that case are pursuant to that assignment.
“Of course, since that time, with the limitations on assignments, I’ve
been hired full time by Merced Superior Court as a commissioner, but the
record should show I’m sitting as assigned judge pursuant to the original
assignment, not as a commissioner.”
DISCUSSION
I. Defendant Is Entitled to a New Sentencing Hearing
Initially, the parties agree, as do we, that the matter should be remanded for a new
sentencing hearing because Judge Shaver was not authorized to preside over the previous
resentencing hearing in light of his earlier recusal from the case. Accordingly, we
remand and a new resentencing hearing is necessary on this basis.
7.
A. Standard of Review and Applicable Law
“‘Statutes governing disqualification for cause are intended to ensure public
confidence in the judiciary and to protect the right of the litigants to a fair and impartial
adjudicator ….’” (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1251.)
Code of Civil Procedure section 170.1 sets forth grounds upon which a judge may
be disqualified. This section provides, in part, “(a) A judge shall be disqualified if any
one or more of the following are true: [¶] … [¶] (6)(A) For any reason: [¶] (i) The judge
believes his or her recusal would further the interests of justice. [¶] (ii) The judge
believes there is a substantial doubt as to his or her capacity to be impartial. [¶] (iii) A
person aware of the facts might reasonably entertain a doubt that the judge would be able
to be impartial.” Pursuant to Code of Civil Procedure section 170.3, subdivision (a)(1),
“If a judge determines himself or herself to be disqualified, the judge shall notify the
presiding judge of the court of his or her recusal and shall not further participate in the
proceeding, except as provided in section 170.4, unless his or her disqualification is
waived by the parties as provided in subdivision (b).”
Code of Civil Procedure section 170.4, subdivision (a) explains the powers of
disqualified judges, notwithstanding his or her disqualification. Under this section, a
disqualified judge may “(1) Take any action or issue any order necessary to maintain the
jurisdiction of the court pending the assignment of a judge not disqualified. [¶] (2)
Request any other judge agreed upon by the parties to sit and act in his or her place.
[¶] (3) Hear and determine purely default matters. [¶] (4) Issue an order for possession
prior to judgment in eminent domain proceedings. [¶] (5) Set proceedings for trial or
hearing. [¶] (6) Conduct settlement conferences.” Subdivision (d) of this statute states:
“Except as provided in this section, a disqualified judge shall have no power to act in any
proceeding after his or her disqualification or after the filing of a statement of
disqualification until the question of his or her disqualification has been determined.”
(Code Civ. Proc. § 170.4, subd. (d).)
8.
“The [disqualification] statutes … do not permit limited, partial or conditional
recusal.” (Geldermann, Inc. v. Bruner (1991) 229 Cal.App.3d 662, 665.) “Except in
very limited circumstances …, a disqualified judge has no power to act in any
proceedings after his or her disqualification.” (Christie v. City of El Centro (2006) 135
Cal.App.4th 767, 776.) Accordingly, “orders made by a disqualified judge are void.”
(Rossco Holdings, Inc. v. Bank of America (2007) 149 Cal.App.4th 1353, 1362.)
B. Analysis
Defendant argues Judge Shaver had no authority to pronounce sentence in this
case given his previous disqualification, so the sentence he pronounced is void.
Accordingly, he requests reversal of the judgment and a remand to the superior court with
directions to a hold a new resentencing before a judge with the authority to pronounce
sentence in this matter. The People respond the trial court’s June 6, 2022, order was in
excess of its jurisdiction and must be vacated. We conclude a new resentencing hearing
is required on this basis
Here, the record reflects that Judge Shaver voluntarily disqualified himself from
the current matter and he did not ask the parties to waive his disqualification nor did they
agree to do so. (See Code Civ. Proc., § 170.3, subd. (b)(1).) As a result, he had no power
to act in any further proceedings except as provided for in Code of Civil Procedure
section 170.4. Nevertheless, he presided over and pronounced a new sentence during the
resentencing hearing, which is not among the limited actions he could take as a
disqualified judge. Accordingly, the resulting order is void and must be vacated.
II. Court May Reconsider Imposition of Upper Term at Resentencing
Defendant also challenges the trial court’s reimposition of the upper term. He
argues the court erred in considering his prior conviction in imposing the upper term
because the record does not disclose the prior conviction was established by a certified
record of conviction. He notes, though he admitted the truth of a prior conviction term
9.
before the passage of Senate Bill 567, this admission was not a stipulation for the purpose
of allowing the court to consider this as an aggravating sentencing factor under
subdivision (b)(3) of section 1170, citing People v. Dunn (2022) 81 Cal.App.5th 394 in
support. He further contends the court erred in considering the circumstances
surrounding the prior conviction without a stipulation or a trial on them. And he
contends he is not required to show prejudice because the imposed sentence was
unauthorized based on the lack of any valid aggravating factors. He further contends the
prosecution should not get another opportunity to retry the aggravating factors, citing
People v. Seel (2004) 34 Cal.4th 535.
Because the trial court’s order is void, we do not reach the merits of its ruling.
(See Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 427 [declining to reach
merits of summary judgment motion and ruling made by disqualified judge].) Defendant
may challenge the imposition of the upper term at the new resentencing hearing below.
And we reject defendant’s contention that the People cannot seek, and the trial court
cannot consider, reimposition of the upper term at resentencing. (See People v. Kim
(2012) 212 Cal.App.4th 117, 125 [“‘A “final” but void order can have no preclusive
effect. “‘A void judgment [or order] is, in legal effect, no judgment. By it no rights are
divested. From it no rights can be obtained. Being worthless in itself, all proceedings
founded upon it are equally worthless. It neither binds nor bars any one.’”’
[Citation.]”].)
However, we reiterate that the trial court’s consideration of the appropriate term
should be guided by the language of section 1170 as recently amended. Specifically,
section 1170, subdivision (b) provides, in part:
“(1) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall, in its sound discretion,
order imposition of a sentence not to exceed the middle term, except as
otherwise provided in paragraph (2).
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“(2) The court may impose a sentence exceeding the middle term
only when there are circumstances in aggravation of the crime that justify
the imposition of a term of imprisonment exceeding the middle term, and
the facts underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at trial by
the jury or by the judge in a court trial. Except where evidence supporting
an aggravating circumstance is admissible to prove or defend against the
charged offense or enhancement at trial, or it is otherwise authorized by
law, upon request of a defendant, trial on the circumstances in aggravation
alleged in the indictment or information shall be bifurcated from the trial of
charges and enhancements. The jury shall not be informed of the bifurcated
allegations until there has been a conviction of a felony offense.
“(3) Notwithstanding paragraphs (1) and (2), the court may consider
the defendant’s prior convictions in determining sentencing based on a
certified record of conviction without submitting the prior convictions to a
jury. This paragraph does not apply to enhancements imposed on prior
convictions.” (Italics added.)
Said differently, the court may only impose the upper term when there are
circumstances in aggravation of the crime that justify imposition of a term exceeding the
middle term, and the facts underlying those aggravating circumstances have been
stipulated to by the defendant or found true beyond a reasonable doubt at trial by the jury
or by the judge in a court trial. (See § 1170, subd. (b)(2).) The court may also consider
the defendant’s prior convictions based on a certified record of conviction without
submitting the prior convictions to a jury. (See § 1170, subd. (b)(3).)
III. Defendant’s Remaining Claims Are Also Moot
Defendant further argues his counsel was ineffective at the resentencing hearing,
asserting she did not understand the purpose of the hearing nor was prepared to argue on
his behalf. The People agree, as do we, that this claim is moot because we are remanding
for a new resentencing hearing.
Defendant also asserts the trial court failed to recalculate his custody credits at
resentencing. The People agree the court erred in failing to recalculate defendant’s
custody credits at resentencing and they assert we should direct the trial court on remand
11.
to recalculate defendant’s custody credits to reflect the actual days of custody from
defendant’s arrest for the 2018 offense up to and including the new resentencing date.
Because we are remanding for a new resentencing hearing, a new abstract of
judgment should be prepared after that hearing. The new abstract of judgment should
reflect the correct calculation of defendant’s custody credits as of the date of the new
resentencing. (See People v. Buckhalter (2001) 26 Cal.4th 20, 37–41 [“the trial court,
having modified defendant’s sentence on remand, was obliged, in its new abstract of
judgment, to credit him with all actual days he had spent in custody, whether in jail or
prison, up to that time”].)
DISPOSITION
The matter is remanded with directions to the trial court to vacate the judgment
and to conduct a resentencing of defendant by a judge who is not disqualified to hear the
matter. After resentencing defendant, the clerk of the superior court is directed to prepare
an amended abstract of judgment, and to forward a certified copy of the amended abstract
of judgment to the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.
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