P. v. Badillo
Filed 6/2/08 P. v. Badillo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, Plaintiff and Respondent, v. GILBERTO SAAVEDRA BADILLO, Defendant and Appellant. | E043522 (Super.Ct.No. INF049526) OPINION |
APPEAL from the Superior Court of Riverside County. Charles Everett Stafford, Jr., Judge. Affirmed in part; reversed in part with directions.
Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
This is a second appeal by defendant and appellant Gilberto Saavedra Badillo. In his first appeal, he claimed among other things, that the trial court erred by selecting count 3 (unlawful and willful failure to stop at the scene of an accident under Veh. Code, 20001, subd. (a)) as the principal term, instead of count 1 (driving under the influence of alcohol under Veh. Code, 23153, subd. (a)). We agreed and remanded the matter to the trial court for the purpose of (1) selecting count 1 as the principal count; (2) staying the sentence on count 2 (driving with 0.08 percent or more of alcohol in his blood under Veh. Code, 23153, subd. (b)) under Penal Code section 654; and (3) imposing the enhancement that defendant personally inflicted great bodily injury upon the victim (Pen. Code, 12022.7, subd. (a), 1192.7, subd. (c)(8)) only as to count 1, not all three counts.
On remand, the trial court deemed count 1 as the principal term; ordered the sentence on count 2 concurrent to the sentence on count 1; imposed the sentence on count 3 to run consecutive to count 1; and imposed the enhancement only as to count 1.[1] The trial court, however, did not stay the sentence on count 2 under Penal Code section 654. Defendant was not present at the resentencing hearing.
In this appeal, defendant contends that the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution by sentencing him without being present. We agree. For the reasons set forth below, we shall remand this case for resentencing.
DISCUSSION
A criminal defendant has statutory and constitutional rights to be present with counsel at sentencing and pronouncement of judgment, a critical stage of the criminal prosecution. (Cal. Const., art. I, 13; Pen. Code, 1193; In re Perez (1966) 65 Cal.2d 224, 229 . . . ; see also U.S. Const., Amends. VI, XIV; Mempa v. Rhay (1967) 389 U.S. 128.) (People v. Rodriguez (1998) 17 Cal.4th 253, 257.) Because the right to be present at sentencing is a federal constitutional right, the case must be remanded unless defendants absence was harmless beyond a reasonable doubt. (People v. Robertson (1989) 48 Cal.3d 18, 62.)
Here, on remand, the trial court had to select count 1 as the principal term, stay the sentence on count 2, and impose the personal infliction of great bodily injury enhancement only as to count 1. The trial court selected count 1 as the principal term, imposed the enhancement only as to count 1, but failed to stay the sentence on count 2. Instead, the trial court ordered the sentences in counts 1 and 2 to run concurrently. Moreover, on remand, the trial court imposed a consecutive sentence on count 3, which could have run consecutive or concurrent to the other sentences. At the first sentencing hearing, the sentences were ordered to run concurrent. Hence, on appeal, defendant contends that he was prejudiced by his absence at the hearing because the court, at the resentencing, ordered the sentence on count 3 to run consecutive, not concurrent. Because the trial court had the authority to either impose defendants sentence consecutively or concurrently, defendants presence at the hearing on remand was necessary in order for defendant to participate in the process by which the trial court made its decision. (See, e.g., People v. Rodriquez, supra, 17 Cal.4th at p. 258.)
Although we cannot say that the trial court would have imposed a concurrent sentence, we cannot say the error was harmless beyond a reasonable doubt, based on the courts history in imposing concurrent sentences as to all counts at the first sentencing hearing. Therefore, the case is remanded once again for resentencing. At the resentencing hearing, the trial court is free to exercise its discretion in imposing a concurrent or consecutive sentence on count 3.
DISPOSITION
Defendants sentence is reversed in part and the case is remanded to the trial court for resentencing. The trial court is ordered to have defendant present at the resentencing hearing and to stay the sentence on count 2 under Penal Code section 654. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
KING
J.
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[1] During the resentencing hearing, the trial court erroneously stated that the enhancement for great bodily injury attached to both counts 1 and 2. However, the abstract of judgment correctly reflects that the enhancement attached only to the sentence imposed on count 1.
