People v. Jones CA5

California Court of Appeal May 20, 2016 No. F070261Unpublished

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Holding. The court held that a defendant has no due process or Sixth Amendment right to be present at a Proposition 36 eligibility hearing, and that the defendant had properly waived his presence and forfeited his claim.

Issues

Whether a defendant has a right to be present at a Proposition 36 eligibility hearing.
Whether the defendant waived his right to be present at the resentencing hearing.
Whether the trial court properly denied the defendant's petition for resentencing based on statutory ineligibility.

Disposition. affirmed

Quotations verified verbatim against the opinion

“we conclude defendant had no due process or Sixth Amendment right to be present at the hearing on his eligibility for resentencing under Proposition 36.”

“The procedure for a defendant waiving his or her presence at the resentencing hearing was followed here, and defendant’s presence at the hearing was not statutorily required.”

“The trial court’s denial of defendant’s petition for resentencing pursuant to Proposition 36 is affirmed.”

Filed 5/20/16 P. v. Jones CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070261 Plaintiff and Respondent, (Super. Ct. No. 1099818) v.

ARTHUR RAY JONES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Nan Cohan Jacobs, Judge.

Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Kane, Acting P.J., Detjen, J. and Peña, J.

INTRODUCTION In a nonpublished opinion, People v. Jones (July 7, 2007, F050810) (Jones), this court affirmed the conviction of defendant Arthur Ray Jones for felony possession of heroin (Health & Saf. Code, § 11350). We further affirmed the finding that defendant had three prior serious felony convictions within the meaning of the three strikes law (Pen. Code,1 §§ 667, subds. (b)-(i), 1170.12) and his sentence of 25 years to life.2 On July 17, 2014, pursuant to the resentencing provisions of Proposition 36, the trial court heard and denied defendant’s petition for resentencing, finding defendant ineligible. Defendant contends he was denied his right to participate in the hearing and the case should be remanded for resentencing. We reject this contention and affirm the trial court’s ruling. FACTS AND PROCEEDINGS In Jones, we affirmed the trial court’s denial of defendant’s request to strike one or more of his prior felony convictions. Defendant’s prior felony convictions occurred in 1968, consisting of instances of oral copulation by force (former § 288, subd. (b)) and sodomy by force (former § 286.1) perpetrated while defendant was housed in the Fresno County jail. As we stated in Jones, “the sordid details … are recounted in People v. Jones (1970) 10 Cal.App.3d 237, 241-242.” Defendant filed his own petition to recall his sentence pursuant to Proposition 36 on March 22, 2013. On page 3 of defendant’s petition, he executed a waiver of his right to personally appear at the hearing, “being aware of his right to be present at all stages of the proceedings.” The waiver further stated the undersigned petitioner “hereby requests the court to proceed during every absence of the Petitioner that the court may permit

People v. Jones CA5

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