People v. Mora
THE PEOPLE, and v. LOUIE F. MORA, and Appellant In re LOUIE F. MORA on Habeas Corpus
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author)
Analysis
The trial court amended the abstract of judgment ex parte to increase the sentence for dissuading a witness from eight months to three years. The appellate court affirmed the convictions but reversed the sentence and remanded for resentencing in the defendant's presence, dismissing the habeas petition as moot.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Ex parte amendment of the abstract of judgment to increase the sentence for dissuading a witness.“The People agree that the trial court erred in resentencing him in his absence. (People v. Arbee (1983) 143 Cal.App.3d 351, 356 [192 Cal.Rptr. 13].)” | unclear | error (procedure) | agree with court agree with court |
Authorities
- relied: People v. Arbee (1983) 143 Cal.App.3d 351 — A trial court commits error by resentencing a defendant in their absence.
- relied: People v. Mustafaa (1994) 22 Cal.App.4th 1305 — Cited by the defendant in support of the double jeopardy contention regarding the sentence increase.
The appellate opinion: sound — The opinion correctly identifies that the trial court lacked the authority to amend the sentence ex parte, relying on the agreed-upon authority in People v. Arbee. It appropriately remands for resentencing to cure the procedural defect and dismisses the habeas petition as moot, though it declines to address the double jeopardy claim without a full record.
How this analysis was made · dispute it
unusual dispositionAfter the Department of Corrections advised that Penal Code section 1170.15 required a full consecutive three-year term for dissuading a witness, the trial court amended Mora's abstract of judgment ex parte, increasing the term for that count from one year to three years without Mora present. The Court of Appeal affirmed the convictions, reversed the sentence, remanded for resentencing in Mora's presence, declined to reach the double jeopardy claim, and dismissed the related habeas petition as moot.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Ex parte amendment of the abstract of judgment to impose a full consecutive three-year term for dissuading a witness under section 1170.15, done in the defendant's absence“The People agree that the trial court erred in resentencing him in his absence. (People v. Arbee (1983) 143 Cal.App.3d 351, 356 [192 Cal.Rptr. 13].) We remand for resentencing and choose not to consider the double jeopardy issue absent a full record of the proceedings on remand.” | unclear | error (procedure) | agree with court Increasing a defendant's sentence is a critical stage at which the defendant has a right to be present; the People conceded the error and Arbee supports the proposition that resentencing may not be conducted in the defendant's absence. The court's remedy of remand for resentencing in the defendant's presence is the appropriate one. The opinion does not discuss whether the original one-year term was an unauthorized sentence correctable at any time, but that question goes to the trial court's power on remand, not to the presence error. |
Imposition of an increased sentence after the original judgment, challenged as placing the defendant in double jeopardy“In both the appeal and habeas corpus petition Mora contends amending the abstract of judgment in his absence was error and that increasing his sentence places him in double jeopardy. (See People v. Mustafaa (1994) 22 Cal.App.4th 1305 [28 Cal.Rptr.2d 172].)” | unclear | not reached | agree with court The court expressly declined to decide the double jeopardy question until a full record is developed on remand. Declining to reach a constitutional issue that may be mooted or reshaped by the resentencing proceeding is a defensible exercise of judicial restraint, though leaving the issue open invites a second appeal on the same point. |
Authorities
- relied: People v. Arbee (1983) 143 Cal.App.3d 351 — A defendant has the right to be present at resentencing; a trial court errs by resentencing the defendant in his absence.
The appellate opinion: sound with gaps — The result is correct and supported by the conceded error and the cited Arbee authority: a sentence may not be increased in the defendant's absence, and remand for resentencing with the defendant present is the proper remedy. The opinion is cursory, however, stating no standard of review, not addressing the statutory and constitutional basis of the right to be present, and leaving unresolved whether the original term was unauthorized and whether its correction raises double jeopardy concerns, which it deferred to a future record.
Opinion — Huffman
Opinion
HUFFMAN, J.In 1995 in superior court case No. SF87558, a jury convicted Louie F. Mora of assault with a firearm (Pen. Code, § 245, subd. (a)(2))1 while personally using a firearm (§ 12022.5) and inflicting great bodily injury (§ 12022.7), being a felon in possession of a firearm (§ 12021, subd. (a)), making a terrorist threat (§ 422), false imprisonment (§§ 236/ 237), assault with a deadly weapon (§ 245, subd. (a)(1)), inflicting corporal injury on a spouse or cohabitant (§ 273.5), and dissuading a witness by force (§ 136.1, subd. (c)(1)). In superior court case No. SF90038 Mora entered a negotiated guilty plea to possessing marijuana for sale (Health & Saf. Code, § 11359). The court sentenced him to 14 years four months in prison: the four-year upper term for assault with a firearm enhanced five years for personal firearm use, with consecutive eight-month terms for being a felon in possession of a firearm and making a terrorist threat (one-third the middle term), one year for assault with a deadly weapon (one-third the middle term) enhanced one year four months for personally using a firearm (one-third the middle term), one year for dissuading a witness (one-third the middle term), and eight months for possessing marijuana for sale in case No. SF90038 (one-third the middle term). In June 2001, the Department of Corrections advised the trial court that section 1170.15 provides for a full consecutive three-year term for dissuading a witness. On July 3, 2001, the trial court amended the abstract of judgment, ex parte, to provide for a full three-year term for dissuading a witness.
In both the appeal and habeas corpus petition Mora contends amending the abstract of judgment in his absence was error and that increasing his *399sentence places him in double jeopardy. (See People v. Mustafaa (1994) 22 Cal.App.4th 1305 [28 Cal.Rptr.2d 172].) The People agree that the trial court erred in resentencing him in his absence. (People v. Arbee (1983) 143 Cal.App.3d 351, 356 [192 Cal.Rptr. 13].) We remand for resentencing and choose not to consider the double jeopardy issue absent a full record of the proceedings on remand.
Mora’s February 2002 motion to vacate the judgment, treated as a petition for writ of habeas corpus, raises the same issues as the appeal. In light of our decision to remand for resentencing, the petition is dismissed as moot.
Disposition
The convictions are affirmed. The sentence is reversed and matter is remanded for resentencing in Mora’s presence.
Kremer, P. J., and O’Rourke, J., concurred.
All statutory references are to the Penal Code unless otherwise indicated.
Cites, in this corpus
- People v. Mustafaa D018683 · 1994-02-23
- People v. Arbee Crim. 22625 · 1983-05-26
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