Tuesday, August 22, 2017
Page 4
Absence of Defendant From Resentencing Hearing Harmless—C.A.
By a MetNews Staff Writer
A judge erred in conducting a felony resentencing hearing in the absence of the defendant, who had not waived his right to be present, the Fourth District Court of Appeal has ruled, but, according to the majority of the Div. Three panel, the error was harmless.
Justice Richard D. Fybel wrote for himself and Acting Presiding Justice William W. Bedsworth in declaring on Friday that if defendant Juan Manuel Carrasco had been in attendance, it could not have made any difference in Orange Superior Court Judge M. Marc Kelly’s decision to impose on him a 29-year prison sentence in connection with a gang shooting in which the victim suffered serious injuries. Dissenting, Justice Eileen C. Moore said that Carrasco might have been able to persuade Kelly to sentence him to 22 years, instead, and should have a new resentencing hearing.
Kelly had initially sentenced Carrasco to 32 years, but that sentence was reversed by Div. Three on June 18, 2014, in an opinion by Fybel. The opinion said that Kelly improperly increased the sentence based on all three enhancement allegations.
On remand, Kelly opted to strike from the sentence a three‑year great bodily injury enhancement, then reimposed a sentence of nine years for assault with a semiautomatic firearm, a consecutive 10-year term on a firearm enhancement, and an additional 10-year consecutive term on a gang enhancement, totaling 29 years.
An alternative under Carrasco I was striking the 10-year firearm enhancement and retaining the three‑year great bodily injury enhancement, resulting in a 22-year sentence.
Attorney General’s Position
The Office of Attorney General conceded Kelly’s error in not affording Carrasco the opportunity to be present at the resentencing, but argued that the error was harmless.
Kelly’s slipup was of constitutional dimension, Fybel said, meaning that the burden was on the People to show harmless error. He wrote, in opinion, which was not certified for publication:
“The Attorney General met his burden of demonstrating harmless error by showing that under the facts and circumstances Carrasco’s presence would not have made a difference. The Attorney General cannot prove a negative. If there was something Carrasco would have said or added by being present at the resentencing hearing, only he could explain what that might have been. He has not done so. In addition, Carrasco was present at the first sentencing hearing. He has not identified any fact or circumstance since the first sentencing hearing that might have altered the trial court’s original sentencing decision.”
Fybel added that Kelly “had sat through the trial, was familiar with the evidence, and rejected the arguments of Carrasco’s counsel at the resentencing hearing.”
Moore’s Dissent
Moore protested, in her dissent:
“On the one hand, the majority recognizes that…Carrasco has absolutely no burden here; it is entirely on the Attorney General….On the other hand, the majority asserts, ‘If there was something Carrasco would have said or added by being present at the resentencing hearing, only he could explain what that might have been. He has not done so.” (…italics added.) The majority cannot have it both ways. Further, this is not a writ; Carrasco cannot submit a declaration. Carrasco is stuck with the record on appeal. We cannot know what Carrasco might have said or added by being present at the resentencing hearing.”
She observed that the Office of Attorney General could have established that the error was harmless if Kelly had imposed the lower term.
The case is People v. Carrasco, G052992.
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