People v. Miller CA2/7

Filed 2/17/21 P. v. Miller CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B305719
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA465938)
v.
DAMEON MILLER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mildred Escobedo, Judge. Reversed and
remanded with directions.
John L. Staley, 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, Senior
Assistant Attorney General, Scott A. Taryle and Daniel C. Chang,
Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Dameon Miller of various crimes, and the
trial court sentenced him to an aggregate prison term of 35 years,
which included a five-year term for a prior serious felony
conviction under Penal Code section 667, subdivision (a)(1).1
Miller appealed and asked this court to remand the matter to
allow the trial court to exercise its discretion whether to strike
the five-year enhancement under section 667, subdivision (a)(1),
and to give him an opportunity to request a hearing under
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) on his
ability to pay the fines and assessments the trial court imposed.
This court affirmed Miller’s convictions, vacated his sentence,
and directed the trial court to consider whether to exercise its
discretion to strike the five-year enhancement and to allow Miller
to request a hearing on his ability to pay. (People v. Miller
(Jan. 27, 2020, B294274) [nonpub. opn.].)
On remand the trial court considered whether to strike the
five-year enhancement under section 667, subdivision (a)(1),
without holding a hearing. Ruling in chambers, the trial court
declined to strike the enhancement. The court’s written “Order
Pursuant to Remittitur” stated: “At the [original] sentencing this
court made a very clear record of the egregious conduct [Miller]
inflicted upon the victims. The court imposed [his] sentence
pursuant to those facts. Upon reconsideration, the court declines
to resentence the [section 667, subdivision (a)(1),] enhancement.”
The order also stated that, “[w]ith regard to the ability to pay
issue, the court adopts the findings of” four post-Dueñas
1 Statutory references are to the Penal Code.
2
decisions2 and that “[a]ny further request on the ability to pay”
should be filed within 30 days. The trial court gave notice of its
order to Miller, appellate counsel for Miller, and the prosecutor.
After Miller failed to request a hearing on his ability to pay the
fines and assessments within 30 days, the court adopted the
order as its final ruling.
Miller appealed again, this time arguing that he had a
right to be present at the resentencing hearing and to be assisted
by counsel and that the “complete deprivation” of his right to be
heard was prejudicial error. The People concede Miller is correct,
and we agree. Miller also contends that, to the extent the trial
court gave him an opportunity to request a hearing on his ability
to pay, it failed to give notice to Miller’s trial counsel, who Miller
“reasonably expected . . . would respond.” The People do not
agree with this argument, but we do.
2 The trial court cited People v. Adams (2020) 44 Cal.App.5th
828, People v. Lowery (2020) 43 Cal.App.5th 1046, People v. Allen
(2019) 41 Cal.App.5th 312, and People v. Kingston (2019)
41 Cal.App.5th 272. As Miller observes in his opening brief, this
“citation to multiple cases without explanation makes it difficult
to know exactly” what the trial court ruled, but it appears the
court “concluded there was no Dueñas error” before Miller had
the opportunity to request a hearing. The Supreme Court has
granted review in People v. Kopp (2019) 38 Cal.App.5th 47,
review granted November 13, 2019, S257844, to decide whether a
court must consider a defendant’s ability to pay before imposing
or executing fines, fees, and assessments and, if so, which party
has the burden of proof regarding defendant’s inability to pay.
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DISCUSSION
Section 1260 provides that, where a reviewing court orders
a limited remand, such as for the trial court to exercise
sentencing discretion, the reviewing court may direct the trial
court to conduct “such further proceedings as may be just under
the circumstances.” The directive in section 1260, that the
further proceedings be “just under the circumstances,” requires
“the presence of defendant and his counsel on remand, at the first
occasion on which the trial judge will consider whether to
exercise his sentencing discretion in defendant’s favor.”
(People v. Rodriguez (1998) 17 Cal.4th 253, 258 (Rodriguez).) The
Supreme Court in Rodriguez explained that “to permit the trial
court to decide how to exercise its discretion under section 1385
without affording defendant and his counsel an opportunity to
address the subject would be manifestly unfair.” (Rodriguez, at
p. 260.)
Of course, a defendant also “has a constitutional right to be
present at all critical stages of the criminal prosecution, i.e., ‘all
stages of the trial where his absence might frustrate the fairness
of the proceedings’” (Rodriguez, supra, 17 Cal.4th at p. 260),
including sentencing (People v. Cutting (2019) 42 Cal.App.5th
344, 347-348), and a constitutional right to counsel (People v.
Doolin (2009) 45 Cal.4th 390, 453). But we need not reach
Miller’s constitutional arguments because his appeal “may be
resolved on narrower statutory grounds” (People v. Rocha (2019)
32 Cal.App.5th 352, 357 (Rocha)) under section 1260. (See
People v. Hoyt (2020) 8 Cal.5th 892, 949 [“‘Our jurisprudence
directs that we avoid resolving constitutional questions if the
issue may be resolved on narrower grounds.’”]; People v.
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Buckhalter (2001) 26 Cal.4th 20, 35 [“Under section 1260
itself . . . it was ‘just under the circumstances’ to require the
defendant’s presence with counsel on remand . . . in order to
allow the defendant to advance any arguments for the favorable
exercise of the court’s discretion.”]; Rodriguez, at p. 260 [because
“section 1260 provides sufficient authority to require defendant’s
presence on remand,” we “need not rest our decision on
constitutional grounds”].)
As the People concede, the trial court violated Miller’s
rights under section 1260 by considering whether to exercise its
discretion to strike Miller’s prior serious felony conviction
without allowing Miller or his attorney to be present and
participate. And because Miller and his attorney were not there,
we (and the trial court) cannot know what arguments they may
have made or what evidence they may have submitted at the
resentencing hearing. (See Rodriguez, supra, 17 Cal.4th at p. 259
[“The evidence and arguments that might be presented on
remand cannot justly be considered ‘superfluous,’ because
defendant and his counsel have never enjoyed a full and fair
opportunity to marshal and present the case supporting a
favorable exercise of discretion.”]; People v. Cutting, supra,
42 Cal.App.5th at p. 350 [same]; People v. Hernandez (2009)
172 Cal.App.4th 715, 722 [the “‘right to be heard does not depend
upon an advance showing that one will surely prevail at the
hearing’”]; People v. Garcia (1995) 32 Cal.App.4th 1756, 1771 [“To
say that sentencing decisions are discretionary is to say that
different reasonable decision makers—or, as in this case, the
same reasonable decision maker at different times—could arrive
at different decisions, even on the same facts.”].) The People
concede the trial court’s error was prejudicial, observing “the trial
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court rested its resentencing decision on the circumstances of the
underlying crimes and did not consider any relevant information
that [Miller] or his counsel may have been able to bring to its
attention concerning the prior serious felony conviction
enhancement. Accordingly, a second remand is warranted for
this issue.” (See Rodriguez, supra, 17 Cal.4th at pp. 259-260;
Rocha, supra, 32 Cal.App.5th at p. 359 [“We follow the Rodriguez
court and conclude that remand is necessary.”].)3
Miller also asks for an opportunity on remand to request a
hearing on his ability to pay the fines and assessments. The
People contend that the trial court already gave Miller an
opportunity to request a hearing and that Miller “did not avail
himself to that opportunity.” Because the trial court gave notice
to the wrong attorney (Miller’s appellate counsel rather than his
trial counsel), and because the trial court can make a
determination on Miller’s ability to pay “in just a few minutes
upon remand when the trial court addresses the serious felony
enhancement issue,” Miller should have another opportunity to
request, through his trial counsel, an ability-to-pay hearing.
3 As the court in Rocha observed, the Supreme Court in
Rodriguez “eliminated the unfairness by remanding the matter to
the trial court for ‘a hearing in the presence of defendant [and]
his counsel,’” but the Supreme Court “did not consider whether
the error should be reviewed under Chapman v. California (1967)
386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] or People v. Watson
(1956) 46 Cal.2d 818, 836.” (Rocha, supra, 32 Cal.App.5th at
p. 359.) Because the People concede the error was prejudicial, we
do not reach the issue. (See id. at pp. 359-360 [concluding that,
“[e]ven under the Watson standard, which applies to errors of
state law, reversal is required”].)
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DISPOSITION
The sentence is reversed. The trial court is directed to
again consider, this time at a hearing where Miller has the right
to be present with counsel, whether to exercise its discretion to
strike the prior serious felony conviction enhancement under
section 667, subdivision (a)(1). The trial court is also directed to
give Miller another opportunity to request a hearing on his
ability to pay the fines and assessments the trial court imposed.
SEGAL, Acting P. J.
We concur:
FEUER, J.
MCCORMICK, J. *
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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