People v. Jolivette CA1/3

Filed 2/13/24 P. v. Jolivette CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A167029 v. PAUL PATRICK JOLIVETTE, (Solano County Super. Ct. No. FCR211674) Defendant and Appellant.

Defendant Paul Patrick Jolivette appeals an order entered after he petitioned for resentencing under former Penal Code section 1171.1.1 He makes three contentions: that the trial court erred in holding the resentencing hearing in his absence; that the court failed to exercise its discretion in imposing a new sentence; and that the court erroneously failed to recalculate his presentence credits. We conclude that the record does not show defendant validly waived his presence at the hearing and that the error was not harmless beyond a reasonable doubt. We therefore remand for a new resentencing hearing.

All statutory references are to the Penal Code. Effective June 30, 1

2022, 1171.1 was renumbered to section 1172.75 without substantive change. (Stats. 2022, ch. 58, § 12; see People v. Christianson (2023) 97 Cal.App.5th 300, 305, fn. 2.) We will refer to section 1172.75.

1

FACTUAL AND PROCEDURAL BACKGROUND Verdicts and Original Sentence Defendant committed multiple sexual offenses over a period of approximately nine months in 2003, during which he repeatedly sexually molested his 13- or 14-year-old niece. The facts underlying his convictions are set forth in a prior opinion of this division affirming the ensuing judgment, and we will not recite them here. (People v. Jolivette (May 23, 2007, A112351) [nonpub. opn.].) In 2005, defendant was convicted of one count of exhibiting harmful matter to a minor with the intent of seduction (§ 288.2, subd. (a)), one count of sexual penetration by a foreign object with force and violence (§ 289, subd. (a)(1)), three counts of forcible rape (§ 261, subd. (a)(2)), one count of false imprisonment by violence (§ 236), and one count of performing a lewd act on a child (§ 288, subd. (c)(1)). The trial court found true allegations pursuant to section 667.5, subdivision (b) of prior convictions for grand theft (§ 487) and felony spousal abuse (§ 273.5, subd. (a)). The trial court sentenced defendant to 27 years in prison: the midterm of six years for penetration with a foreign object, a consecutive eight months (one-third the midterm) for exhibiting harmful matter, the midterm of six years for each count of rape, to run consecutively, consecutive terms of eight months (one-third the midterm) for false imprisonment and performing a lewd act on a child, and an additional one year under section 667.5, subdivision (b) for a prior prison term. Motion for Resentencing In 2021, the Legislature passed section 1171.1 (now section 1172.75), which provides that, with certain exceptions, sentence enhancements imposed under section 667.5, subdivision (b), are invalid, and which