People v. Defelice CA2/6 ( 2024 )

Filed 2/26/24 P. v. Defelice 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.B325106
(Super. Ct. No. 1492983)
Plaintiff and Respondent, (Santa Barbara County)
v.
THOMAS DEFELICE,
Defendant and Appellant.
Thomas Defelice appeals a judgment following a
resentencing hearing. In 2022, we affirmed his conviction for
battery causing serious bodily injury (Pen. Code,1 § 243, subd. (d))
(count 1); assault with force likely to produce great bodily injury
(§ 245, subd. (a)(4)) (count 2); corporal injury to a former
cohabitant (§ 273.5, subd. (a)) (count 3), with jury findings that
he inflicted serious bodily injury as to count 1, that he personally
inflicted great bodily injury as to count 2 (§ 12022.7, subd. (a)),
1 All statutory references are to the Penal Code.
and that he inflicted great bodily injury under domestic violence
circumstances as to count 3. (Id., subd. (e); People v. Defelice
(Mar. 8, 2022, B307326) [nonpub. opn.].) The trial court
sentenced him to a third strike, 25 years to life in prison, plus a
consecutive 15 years. The 15-year sentence included the upper
term of five years for the section 12022.7, subdivision (e),
enhancement.
Senate Bill No. 567 (2021-2022 Reg. Sess.) changed the
standard for imposing upper terms. In our disposition we said,
“The sentence is vacated and the case is remanded to the trial
court for resentencing consistent with Senate Bill No. 567.
Should the court impose the upper term, it should state [its]
reasons for doing so. In all other respects, the judgment is
affirmed.” (People v. Defelice, supra, B307326.)
At the resentencing hearing, the trial court imposed the
upper term again for the section 12022.7, subdivision (e),
enhancement. We conclude, among other things, that 1) the
court properly limited the scope of resentencing and Defelice was
not entitled to a full resentencing; and 2) the court could
reasonably find that Defelice waived his right to appear at the
sentencing hearing. We affirm.
FACTS
On remand from our prior decision, the trial court held a
short presentencing hearing in August 2022 and asked, “I am
gathering that [Defelice] will be waiving his appearance and we’ll
continue [the section] 977 [hearing]. Or do we need to have him
brought down?”
Defelice’s counsel said: “No, Your Honor. He can stay in
state prison. It’s a relatively simple issue. He has a rather
lengthy sentence.”
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The court said, “I understand. I read the opinion. I just
want to make sure that we all understand he’s waiving his
appearance.”
The prosecutor: “Thank you.”
Defense counsel: “Understood, Your Honor.”
The trial court held another pre-resentencing hearing on
October 4, 2022. Again Defelice was not present. The court
asked defense counsel about his absence. Counsel responded,
“He’s not going to be transported.” The court scheduled a
resentencing hearing for October 25, 2022.
At the October 25th resentencing hearing, Defelice was not
present. Defense counsel advised the trial court that Defelice “is
in state prison.”
The trial court ruled that the scope of resentencing would
be limited to the enhancement. The court said, “So the court will
find that factors in aggravation have been proven in Mr.
Defelice’s matter and would impose the upper term of five years
for the infliction of great bodily injury enhancement. That would
be the order of the court.”
DISCUSSION
The Scope of the Resentencing Hearing
The trial court limited the scope of resentencing to the
section 12022.7, subdivision (e), enhancement. It did not err.
Defelice claims a full resentencing on all counts was
required. He notes that our Supreme Court has held that “when
part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate,
so the trial court can exercise its sentencing discretion in light of
the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th
857, 893.) He claims the trial court erred by not conducting a full
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resentencing and only limiting the resentencing to the
enhancement.
But the Buycks rule is not applicable here because Defelice
was sentenced under the three strikes law. Buycks involved
resentencing under Proposition 47. It did not involve
resentencing for inmates with three strikes sentences.
Consequently, Defelice was not entitled to a full resentencing.
(People v. Superior Court (Guevara) (2023) 97 Cal.App.5th 978,
984-986, 988.)
Moreover, as the People note, the trial court was correct
because our reversal only vacated the enhancement. The
disposition only gave instructions to the court on remand
regarding the enhancement. It did not require the court to
conduct a full resentencing hearing. The court complied with our
remand order. A full resentencing would be inconsistent with our
remand order.
Defelice’s Right to be Present at the Resentencing Hearing
Defelice notes that he was not present at the resentencing
hearing. He claims the trial court erred by conducting the
resentencing hearing in his absence,
A criminal defendant has a federal and state constitutional
right to be present at all critical stages of the criminal
proceeding. (People v. Cutting (2019) 42 Cal.App.5th 344, 347.)
Sentencing is a critical stage. (Id. at p. 348; People v. Robertson
(1989) 48 Cal.3d 18, 60.) “[R]esentencing is another critical
stage.” (Cutting, at p. 348.) “Defendant’s constitutional and
statutory right to be present at the sentence modification hearing
and imposition of sentence is not in dispute. (Cal. Const., art. 1,
§ 15 . . . .)” (Robertson, at p. 60.)
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But a defendant may waive the right to be present. (People
v. Nieves (2021) 11 Cal.5th 404, 508.)
The trial court was aware of Defelice’s right to be present
at the resentencing hearing and the need for a waiver of his right
to be present before proceeding with the resentencing. It
conducted a sufficient inquiry on this issue before proceeding
with the resentencing hearing.
At the August 2022 hearing, the trial court said, “I am
gathering that [Defelice] will be waiving his appearance and we’ll
continue [the section] 977 [hearing]. Or do we need to have him
brought down?”
Defelice’s counsel said, “No, Your Honor. He can stay in
state prison. It’s a relatively simple issue. He has a rather
lengthy sentence.”
The court said, “I understand. I read the opinion. I just
want to make sure that we all understand he’s waiving his
appearance.”
Counsel responded: “Understood, Your Honor.”
At the October 4th hearing, the trial court asked about
Defelice not appearing for the hearing. Counsel responded, “He’s
not going to be transported.”
From counsel’s responses to the trial court’s questions, the
court could reasonably find that Defelice had waived his right to
be present at the resentencing hearing. Defelice has made no
showing on appeal that he wanted to appear at the resentencing
hearing or what information he would have presented had he
been present. Given the court’s findings, there is no showing of
any reasonable probability of a different result had Defelice been
present.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Thomas R. Adams, Jr., Judge
Superior Court County of Santa Barbara
______________________________
Rudolph J. Alejo, under appointment by the Court of
Appeal, for Defendant and Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
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