P. v. Chinchilla

 

 

 

 

 

 

 

 

 

 

Filed 11/7/13  P. v. Chinchilla CA4/3

 

 

 

 

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   BYRON CHRISTOPHER CHINCHILLA,         Defendant and Appellant.

G048245            (Super. Ct. No. 08CF3485)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Frank F. Fasel, Judge. 
(Retired judge of the Orange Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.)  Affirmed. 

                        Ellen M. Matsumoto,
under appointment by the Court of Appeal, for Defendant and Appellant.

                        No appearance for
Plaintiff and Respondent.

                        We appointed counsel to
represent Byron Christopher Chinchilla on appeal.  Counsel filed a brief that set forth the
facts of the case.  Counsel did not argue
against her client but advised the court no issues were found to argue on his
behalf.  Pursuant to Anders v. California (1967) 386 U.S.
738, to assist the court with its independent
review, counsel provided the court with information as to issues that might
arguably support an appeal.  Counsel raised
the following two questions:  (1) Was Chinchilla’s

Sixth
Amendment right to counsel violated when trial counsel waived his own personal presence
for the resentencing hearing, instead of appearing by telephone; and (2) was
Chinchilla’s right to be present at a critical stage of the href="http://www.fearnotlaw.com/">criminal proceedings against him violated
by trial counsel’s waiver of Chinchilla’s presence.

                        We granted Chinchilla 30
days to file a supplemental brief.  That
time has passed, and he did not file a supplemental brief.  We have reviewed the information counsel
provided, and we have independently examined the record.  We found no arguable issues.  (People
v. Wende (1979) 25 Cal.3d 436.)  The
judgment is affirmed.

FACTS

                        A jury convicted Chinchilla of four
counts of attempted murder (Pen.
Code, §§ 664, subd. (a), 187, subd. (a))href="#_ftn1" name="_ftnref1" title="">[1]
(counts 1-4), shooting at an occupied motor vehicle

(§ 246) (count 5), four counts of
assault with a semiautomatic firearm
(§ 245, subd. (b)) (counts 6-9), second degree robbery (§§ 211, 212.5, subd.
(c)) (count 11), street terrorism (§ 186.22, subd. (a)) (count 12), being an
active participant in a criminal street
gang and having a concealed firearm in the vehicle (§ 12025, subds. (a)(1)
& (b)(3)) (count 13), and receiving stolen property (§ 496, subd. (a)) (count
14).  The jury also found true street
terrorism and firearm enhancements (§§ 186.22, subd. (b)(1), 12022.53, subds.
(b), (c) & (e)(1), 12022.5, subd. (a)). 


 

                        In his first appeal,
Chinchilla argued the trial court erred in imposing

10-year
enhancements for vicarious use of a firearm and 10-year enhancements for

street
terrorism on counts 1, 2, 3, 4, and 11.  The
Attorney General conceded the error.  As
to counts 6 through 9, Chinchilla contended the trial court erred in imposing
10-year terms on the street terrorism enhancements.  Again, the Attorney General conceded the
error.  Additionally, relying on >People v. Mesa (2012) 54 Cal.4th 191,
Chinchilla asserted his sentence on count 12, street terrorism, must be stayed
because he could not be punished for committing both street terrorism, and the
charged felonies used to establish the felonious criminal conduct element of
street terrorism.  The Attorney General
agreed again.  We affirmed in part,
reversed in part, and remanded for resentencing.href="#_ftn2" name="_ftnref2" title="">[2]  We remanded the matter for resentencing on
counts 1, 2, 3, 4, and 11.  The matter
was also remanded for resentencing on counts 6 through 9, and count 12. 

                        Consistent
with our opinion, the trial court resentenced Chinchilla.  The record reflects no court reporter was
present at the resentencing, and that both the prosecutor and defense attorney
appeared by telephone.  The trial court
vacated the enhancement sentences on counts 1, 2, 3, 4, and 11.  The court did not impose enhancement
punishment on any of these counts.  The
court also vacated the enhancement sentences on counts 6, 7, 8, and 9.  The court did not impose enhancement
punishment on any of these counts. 
Lastly, the trial court vacated the sentence on

count 12.  It then imposed a sentence of two years and
stayed execution of the sentence pursuant to section 654.  Chinchilla filed a timely href="http://www.fearnotlaw.com/">notice of appeal.

DISCUSSION

                        A
defendant’s right to counsel under the Sixth
Amendment applies at all critical stages of a criminal proceeding where the
defendant’s substantial rights are at stake. 
(People v. Crayton (2002) 28
Cal.4th 346, 362.)  Sentencing is a
critical stage in a criminal prosecution. 
(People v. Doolin (2009) 45
Cal.4th 390, 453.)  A criminal defendant
also has a statutory right to be present at sentencing.  (See § 977, subd. (b).)  A defendant shall be present during
sentencing, unless he waives that right and asks that his lawyer appear.  (People
v. Davis (2005) 36 Cal.4th 510, 532 (Davis).)     

                        The
right to be present at sentencing and the right to counsel are federal
constitutional rights.  Accordingly, we
apply the “harmless beyond a reasonable doubt” standard in Chapman v. California (1967) 386 U.S. 18 (Chapman).  (>Davis, supra,

36 Cal.4th at p. 532.)  “Error under sections 977 and 1043 is state
law error only, and therefore is reversible only if ‘“it is reasonably probable
that a result more favorable to the appealing party would have been reached in
the absence of the error.” 
[Citation.]’  [Citations.]”  (Davis,
supra, 36 Cal.4th at pp. 532-533.)  The
defendant has the burden of demonstrating his absence and the lack of counsel
resulted in prejudice or violated his right to a fair and impartial trial.  (People
v. Blacksher (2011) 52 Cal.4th 769, 799.)

                        The record reflects Chinchilla
was not present at the resentencing hearing, and his attorney appeared by
telephone.  It is unclear from the record
whether counsel was authorized to waive Chinchilla’s presence.  Counsel questions whether Chinchilla’s Sixth Amendment
right to counsel was violated when trial counsel waived his own presence for
the resentencing, and whether Chinchilla’s right to be present at the resentencing
was violated by trial counsel’s waiver of Chinchilla’s presence.   

                        Even assuming it was
error for the trial court to have proceeded with the resentencing without
counsel and Chinchilla being personally present, we find no error under either
the Chapman standard or the less stringent
Watson standard.  The court was simply following the specific
directions given it by the appellate court. 
Those directions did not afford the trial court any discretion and
resulted in a benefit to Chinchilla.  We
find beyond a reasonable doubt no more favorable result could have occurred had
counsel and Chinchilla been personally present.

 

DISPOSITION

                        The judgment is
affirmed.

 

 

                                                                                   

                                                                                    O’LEARY,
P. J.

 

WE CONCUR:

 

 

 

ARONSON, J.

 

 

 

IKOLA, J.