California Court of Appeals, Second District, Second Division
[255
Cal.Rptr.3d 289] APPEAL from a judgment of the Superior Court
of Los Angeles County. Michael A. Cowell, Judge. Reversed
with directions. (Los Angeles County Super. Ct. No. VA138509)
COUNSEL
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.
OPINION
LUI,
P. J.
Page 345
Carl
Edward Cutting appeals the sentence imposed following remand
for resentencing with the direction that the trial court
strike a
Page 346
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 [255 Cal.Rptr.3d
290] 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 ...