California Court of Appeal Mar 18, 2021 No. E074049Unpublished
Filed 3/18/21 P. v. Byrd CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074049
v. (Super.Ct.No. FVI1303433)
LAMAR JERMAIN BYRD, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed with directions.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl,
Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
Defendant and appellant Lamar Jermain Byrd appeals from an order denying his
petition pursuant to Penal Code1 section 1170.91, subdivision (b), which provides for
resentencing of military members or veterans suffering from certain mental health and
Here, defendant entered into a plea and agreed to a specific term of 17 years,
which was comprised of the midterm of seven years on count 1, a concurrent three years
on count 2, and a consecutive 10 years on the firearm enhancement. The court accepted
the plea agreement and imposed the agreed-upon term. As such, it did not consider
factors in mitigation and aggravation or exercise discretion to decide between an upper,
middle and lower term. In other words, it did not impose a term under section 1170,
subdivision (b). (King, supra, 52 Cal.App.5th at p. 791.) Therefore, defendant is not
eligible for the relief afforded under section 1170.91, subdivision (b)(1), since he cannot
be resentenced to an upper, middle or lower term based on factors in mitigation and
aggravation. (King, at p. 791.)
In sum, the court was required to impose the stipulated sentence of 17 years in
prison pursuant to the plea agreement. It did not impose a term under section 1170,
subdivision (b). Thus, under the plain language of the statute, defendant is not eligible
7
for relief under section 1170.91, subdivision (b). (King, supra, 52 Cal.App.5th at p. 791.)
Although the court did not expressly state that defendant was ineligible for relief under
the statute, it noted that he entered a plea agreement and denied his petition “on the basis
that [it] wouldn’t grant the relief under any circumstances.” We affirm the court’s ruling.
(People v. Geier (2007) 41 Cal.4th 555, 582 [“we review the ruling, not the court’s
reasoning and, if the ruling was correct on any ground, we affirm.”].)
II. Any Error in Holding the Hearing Without Defendant’s Personal Presence Was
Harmless
Defendant argues he was denied the right to due process because he was not
personally present at the hearing when the court denied his section 1170.91 petition.
Thus, he seeks a remand for another hearing to be held in his presence. The People agree
that a defendant has a right to be present at a resentencing hearing, but contend that any
error in denying defendant’s petition in defendant’s absence was harmless beyond a
reasonable doubt. We agree with the People.
It is undisputed that defendant was entitled to be present at the hearing on the
resentencing petition. (People v. Cutting (2019) 42 Cal.App.5th 344, 347-348.)
However, any error in the court proceeding with the hearing in his absence was harmless
beyond a reasonable doubt. (Ibid. [“the error ‘may be deemed harmless only if we can
conclude beyond a reasonable doubt that the deprivation did not affect the outcome of the
proceeding.’ ”].) Because defendant is ineligible for relief under section 1170.91, his
presence at the hearing would not have made any difference. (See ante, § I.)
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III. Clerical Errors Should Be Corrected
Although not raised by the parties, we note an apparent clerical error. Generally, a
clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804,
808.) Clerical error can be made by a clerk, by counsel, or by the court itself. (Ibid.
[judge misspoke].) A court “has the inherent power to correct clerical errors in its
records so as to make these records reflect the true facts. [Citations.]” (In re Candelario
(1970) 3 Cal.3d 702, 705.)
Defendant was charged with attempted murder (§§ 664, 187, subd. (a), count 1),
second degree robbery (§ 211, count 2), and assault with a deadly weapon (§ 245,
subd. (a)(1), count 3). As to counts 1 and 2, it was alleged that he personally used a
firearm within the meaning of section 12022.53, subdivisions (b) and (c). As to counts 1
through 3, it was alleged that he personally used a firearm within the meaning of section
12022.5, subdivision (a). Defendant pled no contest to counts 1 and 2 and admitted the
allegation under section 12022.5, subdivision (a) as to count 1. However, we note that
the court did not dispose of count 3 or the remaining firearm allegations in its oral
pronouncement of judgment. Notwithstanding the oral pronouncement of judgment, the
minute order states that the court ordered count 3 and the remaining firearm allegations
dismissed. In the interest of clarity and accuracy, we will remand the matter with
directions for the trial court to dispose of the remaining count and allegations.
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DISPOSITION
The matter is remanded with directions for the trial court to dispose of count 3 and
the remaining allegations defendant did not admit. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
MILLER Acting P. J.
SLOUGH J.
10
AI Brief
AI-generated · verify before citing
Holding. A defendant who enters into a plea agreement for a stipulated sentence is ineligible for resentencing under Penal Code section 1170.91 because the court did not exercise sentencing discretion or impose a term under section 1170, subdivision (b).
Issues
Is a defendant who entered a plea agreement for a stipulated sentence eligible for relief under Penal Code section 1170.91?
Was the defendant denied due process by the court holding the resentencing hearing in his absence?
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“defendant is not eligible for the relief afforded under section 1170.91, subdivision (b)(1), since he cannot be resentenced to an upper, middle or lower term based on factors in mitigation and aggravation.”
“Because defendant is ineligible for relief under section 1170.91, his presence at the hearing would not have made any difference.”