People v. Cutting

          APPEAL from a judgment of the Superior Court of Los Angeles County No. VA138509. Michael A. Cowell, Judge. Reversed with directions.

          Maggie Shrout, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Stephanie A. Miyoshi and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

          LUI, P. J.

         Carl Edward Cutting appeals the sentence imposed following remand for resentencing with the direction that the trial court strike a nine-year enhancement imposed under Health and Safety Code^[1] section 11370.2, subdivision (a). Cutting contends he is entitled to a new sentencing hearing because he was not present when the trial court resentenced him, in violation of his constitutional and statutory rights. We agree. Cutting's absence from the resentencing hearing constitutes federal constitutional error requiring reversal unless the People demonstrate the error was harmless beyond a reasonable doubt. They have not done so, and we cannot conclude beyond a reasonable doubt that Cutting's presence at resentencing would not have influenced the trial court's exercise of its discretion, thus affecting the outcome. The matter is therefore remanded to the trial court to conduct a new resentencing hearing at which Cutting must be present unless he waives the right pursuant to Penal Code section 1193.

         PROCEDURAL BACKGROUND

         A four-count information charged Cutting with (1) possession for sale of a controlled substance in violation of Health and Safety Code section 11351; (2) possession of a firearm by a felon in violation of Penal Code section 29800, subdivision (a)(1); (3) possession of ammunition in violation of Penal Code section 30305, subdivision (a)(1); and (4) child abuse in violation of Penal Code section 273a, subdivision (a). Cutting entered an open plea of no contest or guilty to each of the four charged counts. He also admitted three prior convictions for violations of Health and Safety Code sections 11378 (possession of controlled substance for sale) and 11379 (transportation of controlled substance), and two prior convictions under Penal Code sections 118 (perjury) and 459 (burglary).

         As part of his open plea, Cutting was advised that his maximum statutory sentence for the counts to which he pleaded was 21 years 8 months plus 8 months for a probation violation. The trial court imposed an aggregate sentence of 19 years plus 8 months for the probation violation. The sentence included a nine-year enhancement under section 11370.2, subdivision (a), composed of three enhancements of three years each for Cutting's three prior convictions under sections 11378 and 11379. The court also ordered a total of 12 years on the remaining counts to run concurrently with the base term.

         Cutting appealed his sentence on the ground that a change in the law which became effective after Cutting was sentenced precluded imposition of the nine-year enhancement based on the prior convictions under sections 11378 and 11379. We agreed, reversed the sentence, and remanded with directions that the trial court strike the enhancements and resentence Cutting in light of all the relevant factors, including the changed legal landscape with respect to the section 11370.2 enhancements. (People v. Cutting (Aug. 13, 2018, B284539 [nonpub. opn.].)

         The trial court appointed Cutting's trial counsel to represent him on remand. Trial counsel advised the court that, because the postremand sentence would be less than the original sentence, Cutting's presence at the resentencing hearing was not required by law.

         At resentencing on December 19, 2018, the trial court noted that Cutting was not present because he was in state prison, but he was represented by counsel. Defense counsel requested the identical sentence the court had previously imposed minus the nine-year enhancement, for an aggregate sentence of 10 years 8 months. The People asked the court to impose consecutive time on the counts that were previously sentenced concurrently with the base term.

         The court noted that it had originally reduced Cutting's maximum possible sentence by two years by sentencing the counts concurrently. But because Cutting's sentence on remand was already being reduced by nine years based on the change in the law, the court refused “to knock an additional two years off” by again sentencing the subordinate counts concurrently. Accordingly, the court imposed an aggregate sentence of 12 years 8 months, consisting of the base term of 10 years, plus 2 years 8 months consecutive on the remaining counts (one-third the midterm for each of three counts).

         DISCUSSION

         I. Cutting Had a Constitutional Right to Be ...