California Court of Appeal May 25, 2023 No. E079252Unpublished
Filed 5/25/23 P. v. Kiger 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079252
v. (Super.Ct.No. SWF1907584)
JOHNATHAN HOWARD KIGER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge.
Reversed and remanded with directions.
Kevin J. Lindsley and Siri Shetty, under appointment by the Court of Appeal for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Senior Assistant Attorney General, and Collette C. Cavalier
and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
1
In defendant Johnathan Howard Kiger’s previous appeal, we reduced his
conviction for domestic battery with a prior (Pen. Code, § 273.5, subd. (f)(1))1 to simple
domestic battery (§ 273.5, subd. (a)) and remanded for resentencing. On remand, defense
counsel purported to waive defendant’s presence, and the trial court resentenced
and one prior serious felony conviction enhancement (§ 667, subd. (a)) were found true.
Defendant was sentenced to a total of 16 years in prison, including eight years (double
the midterm) on count 1.
He appealed. We held that there was insufficient evidence of domestic battery
with a prior because his only relevant prior conviction was for an attempt, not for a
completed crime. (People v. Kiger (2022) 76 Cal.App.5th 1147, 1150-1152.) We
reduced the conviction on count 1 to simple domestic battery (§ 273.5, subd. (a)) and
remanded for resentencing. (People v. Kiger, supra, at pp. 1152-1153.)
3
The resentencing hearing was held before a different judge,2 and defendant had
different appointed counsel. Defendant was not present. His counsel stated: “Since his
sentence is being reduced, I would waive his appearance.” The trial court reduced the
sentence on count 1 to six years (double the midterm); thus, the total sentence was
reduced to 14 years in prison. The trial court did not recalculate defendant’s custody
credit.
II
VIOLATION OF DEFENDANT’S RIGHT TO BE PRESENT
Defendant contends that the trial court erred by resentencing him in his absence.
A. The Right to Be Present at Resentencing.
“Under the Fifth Amendment to the federal Constitution, ‘a defendant is
guaranteed the right to be present at any stage of the criminal proceeding . . . critical to its
outcome if his presence would contribute to the fairness of the procedure.’ [Citation.]”
(People v. Clark (2016) 63 Cal.4th 522, 568.)3 There is no right to be present “‘“when
presence would be useless, or the benefit but a shadow.”’ [Citation.]” (People v. Ochoa
(2001) 26 Cal.4th 398, 433.)
2 Defendant does not contend that this was error. 3 Defendant also asserts a right under the Sixth Amendment to be personally present. That right, however, exists only when necessary for effective cross-examination. (People v. Martinez (2009) 47 Cal.4th 399, 424.)
4
“‘“The state constitutional right to be present at trial is generally coextensive with
the federal due process right.”’ [Citation.]” (People v. Powell (2018) 6 Cal.5th 136,
147.)
In addition, by statute, a defendant convicted of a felony has the right to be present
“at the time of the imposition of sentence.” (§ 977, subd. (b)(1); accord, § 1193, subd.
(a).) “The statutory right is coextensive with the state constitutional right but c[ould]
only be waived in writing. [Citations.]” (People v. Miranda-Guerrero (2022) 14 Cal.5th
1, 23; see also former § 977, subd. (b)(2), Stats. 2021, ch. 196, § 1.)4
The People argue that defendant fails to show that his presence would have
contributed to the fairness of the procedure. However, “there are substantial reasons for
the presence of accused . . . at the pronouncement of judgment.” (In re Perez (1966) 65
Cal.2d 224, 229.) Thus, as the People concede, “[s]entencing is considered to be [a]
critical stage [citations], and . . . resentencing is another critical stage. [Citations.]”
(People v. Cutting (2019) 42 Cal.App.5th 344, 348; see also People v. Rodriguez (1998)
17 Cal.4th 253, 257 [“The People . . . do ‘not dispute that a defendant has an absolute
4 Section 977 was amended, effective June 20, 2022 (i.e., after defendant was resentenced), to allow a waiver to be entered “by the defendant’s counsel of record,” “with the court’s consent,” “after counsel has stated on the record that the defendant has been advised of the right to be physically . . . present for the hearing at issue, has waived that right, and agrees that notice to the attorney that the defendant’s physical or remote presence in court at a future date and time is required is notice to the defendant of that requirement.” (§ 977, subd. (b)(2), Stats. 2022, ch. 57, § 12.)
However, section 1193, subdivision (a), dealing specifically with the right to be present at sentencing, still requires that a defendant’s waiver must be made “in open court and on the record, or in a notarized writing . . . .”
5
right to be present at a sentence modification hearing and imposition of sentence.”].) We
cannot say his presence was useless or the benefit only a shadow.
Even assuming a defendant’s right to be present at resentencing is conditional on
an affirmative showing that such presence would contribute to the fairness of the
procedure, defendant can make such a showing here. His appointed counsel — who had
not participated in his trial or in his previous appeal — missed three issues to which
defendant could have alerted him.
First, defendant raises the additional contention that the trial court erred by failing
to recalculate his custody credits. The People concede that this was error, and we agree.
(See People v. Buckhalter (2001) 26 Cal. 4th 20, 29.) We will direct the trial court to
correct this error on remand. Defendant, however, could have alerted his counsel to this
issue.
Second, in his previous appeal, defendant contended that the trial court erred by
imposing fines and fees without considering his ability to pay. In a nonpublished portion
of our opinion, we held that he forfeited this contention by failing to raise it below; we
added, however: “On remand, defendant will be free to request an ability-to-pay hearing
and to object to the imposition of any fines or fees without such a hearing.” (People v.
may have offered mitigating factors that arose after his original sentencing; he may have
expressed remorse; he may have made a plea for leniency. [Citation.] While the trial
court may or may not have chosen to believe what [he] might have said, if he said
anything, we cannot conclude beyond a reasonable doubt that his presence at the hearing
would not have affected the outcome. [Citations.]” (People v. Cutting, supra, 42
Cal.App.5th at p. 350.)
10
Last but not least, defendant may have mellowed with time; he may have become
better able to cooperate with counsel and to assist the court. Certainly we cannot say
beyond a reasonable doubt that he has not. Thus, we also cannot say beyond a reasonable
doubt that his presence at the resentencing hearing would not have led to a more
favorable outcome.
We therefore conclude that the sentence must be reversed again, because the trial
court denied defendant the right to be present at resentencing.
III
DISPOSITION
The judgment with respect to the sentence is reversed. On remand, the trial court
must resentence defendant. In the process, it must consider exercising its discretion
under section 1385 to strike his prior serious felony conviction enhancement. It also
must recalculate his custody credits.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
CODRINGTON J.
SLOUGH J.
11
AI Brief
AI-generated · verify before citing
Holding. The trial court erred by resentencing the defendant in his absence without a valid, knowing, intelligent, and voluntary waiver of his right to be present at a critical stage of the proceedings.
Issues
Whether the trial court violated the defendant's constitutional and statutory right to be present at his resentencing hearing.
Whether the defendant's counsel could unilaterally waive the defendant's presence at sentencing.
Whether the trial court's failure to consider striking a prior serious felony conviction enhancement and to recalculate custody credits constituted reversible error.
Disposition. Reversed and remanded
Quotations verified verbatim against the opinion
“The Supreme Court has indicated that a defendant has an absolute right to be present at sentencing.”
“The record did not show that defendant’s waiver, if any, was knowing, intelligent, and voluntary.”
“We cannot say, beyond a reasonable doubt, that if defendant had been present, he would not have enjoyed a more favorable outcome.”