People v. Millare CA2/7 ( 2021 )

Filed 3/16/21 P. v. Millare CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B305761
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA135442)
v.
MORIANO DEPORIS
MILLARE,
Defendant and Appellant.
APPEAL from a nonappealable order of the Superior Court
of Los Angeles County. James R. Dabney, Judge. Appeal
dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Rama R. Maline, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Moriano Millare, convicted in October 1996 of attempted
murder, attempted robbery and several other crimes, appeals the
superior court’s March 11, 2020 denial of his postjudgment
motion for resentencing pursuant to Penal Code section 1170,
subdivision (d)(1).1 Millare contends he was deprived of his right
to be present at the resentencing, a critical stage of the criminal
proceedings. We dismiss the appeal as taken from a
nonappealable order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Millare’s Conviction and First Revised Sentence
Millare was convicted by a jury on October 30, 1996 of
attempted willful, deliberate and premeditated murder (§§ 664,
187, subd (a)), assault with a semiautomatic firearm (§ 245,
subd. (b)), attempted robbery (§§ 664, 211) and shooting into an
occupied motor vehicle (§ 246). The jury found true enhancement
allegations that Millare had personally used a firearm when
committing the attempted murder and two of the other felonies
(§ 12022.5, subd. (a)). The jury also found true special allegations
Millare had suffered a prior violent or serious felony conviction
within the meaning of the three strikes law (§§ 667, subds. (b)-(i),
1170.12) and a prior serious felony conviction under section 667,
subdivision (a). We affirmed the judgment on appeal. (People v.
Millare (Feb. 10, 1998, B108492) [nonpub. opn.].)
1 Statutory references are to this code.
2
In March 1998, shortly after we had affirmed Millare’s
convictions and in response to a notice from the California
Department of Corrections and Rehabilitation (CDCR)2
identifying an error in Millare’s sentence, the trial court
resentenced Millare to an aggregate indeterminate state prison
term of life plus 37 years: life with the possibility of parole for
attempted murder plus 10 years for the firearm enhancement; a
consecutive upper term of nine years for assault with a
semiautomatic weapon, doubled under the three strikes law, plus
four years for the firearm enhancement; plus five years for the
prior serious felony conviction. The court imposed a term of
three years four months (one-third the middle term of five years
doubled under the three strikes law) for shooting at an occupied
vehicle to run concurrently with the term for aggravated assault
and imposed and stayed pursuant to section 654 a term of
two years four months for attempted second degree robbery.
2. CDCR’s 2018 and 2019 Letters and Millare’s Motion for
Resentencing
On January 11, 2018 CDCR sent the trial court a letter
asking for clarification of Millare’s sentence for shooting at an
occupied vehicle.3 The letter explained that imposition of one-
third the middle term is applicable only when sentencing
determinate terms consecutively. When a sentence is imposed to
2 At the time of this notice, the agency was called the
California Department of Corrections. It reorganized and was
renamed the CDCR in 2005. (See Freitag v. Ayers (9th Cir. 2006)
468 F.3d 528, 537, fn. 4.)
3 The letter was prepared by a correctional case records
analyst on behalf of a correctional case records manager in the
legal processing unit of CDCR’s division of adult institutions.
3
run concurrently with another term, the full lower, middle or
upper term (doubled if a second strike offense) must be imposed.
The letter requested that the court review its file to determine if
a correction in Millare’s sentence was required. When no
response from the court had been received, on January 3, 2019
CDCR wrote the Los Angeles County District Attorney, attaching
a copy of the January 11, 2018 letter, and asking for a status
report.
In June 2018 Millare filed a motion for recall of sentence
and resentencing under section 1170, subdivision (d), based on
CDCR’s January 11, 2018 letter.
3. The December 31, 2019 Hearing To Correct Millare’s
Sentence
On December 31, 2019, without Millare in court but with
his counsel and a prosecutor present, the trial court modified
Millare’s sentence nunc pro tunc by deleting the sentence
previously imposed for shooting at an occupied vehicle and
instead imposing “the mid-term of 10 years, doubled [as a second
strike offense], for a total of 20 years to run concurrent with
count 4.”4 In its minute order the court explained CDCR’s
January 11, 2018 letter had been “placed in a box with various
other documents and found at a later date.”
4 The sentencing triad for a felony violation of section 246 is
three, five or seven years, which, if doubled for a second strike
offense, would authorize a prison term of six, 10 or 14 years, not
20 years. Because we lack jurisdiction to consider Millare’s
appeal from the March 11, 2020 order, correction of this error
must await a future judicial proceeding.
4
4. Denial of Millare’s Motion for Resentencing
The court denied Millare’s motion for resentencing on
March 11, 2020, ruling CDCR letters seeking clarification or
correction of errors in Millare’s sentence did not invoke a right to
resentencing under section 1170, subdivision (d)(1). Neither
Millare nor his counsel was present.
In its minute order the court also explained, “This motion
was among a number filed by the petitioner that were not
provided to the court for review. After discovering that the clerk
at the time was not processing large amounts of correspondence,
the court undertook a review of several boxes of correspondence
to determine which contained filings that had never been
addressed. This motion was among the filings discovered but was
not addressed as it was appended to others that were.”5
Millare filed a timely notice of appeal from the March 11,
2020 order denying his motion for resentencing. He has not
appealed the December 31, 2019 resentencing order.
DISCUSSION
Millare’s appeal is premised on several unassailable
propositions. First, a criminal defendant “has a constitutional
right to be present at all critical stages of the criminal
prosecution, i.e., ‘all stages of the trial where his absence might
5 Millare petitioned this court for a writ of mandate on
March 2, 2020 (B304621) seeking, in part, an order requiring the
superior court to rule on his motion for resentencing, which had
been pending since June 2018. The March 11, 2020 ruling
followed a call from this court’s clerk’s office to determine the
status of Millare’s motion. On March 18, 2020, having received a
copy of the March 11, 2020 minute order, we dismissed Millare’s
petition as moot.
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frustrate the fairness of the proceedings’ [citation], or ‘whenever
his presence has a relation, reasonably substantial, to the
fullness of his opportunity to defend against the charge.’” (People
v. Rodriguez (1998) 17 Cal.4th 253, 260; see People v. Cole (2004)
33 Cal.4th 1158, 1231.) This constitutional right to be present
extends to sentencing hearings (People v. Cutting (2019)
42 Cal.App.5th 344, 348; People v. Sanchez (2016)
245 Cal.App.4th 1409, 1414), as well as resentencing proceedings
(Rodriguez, at p. 257 [“[t]he People . . . do ‘not dispute that a
defendant has an absolute right to be present at a sentence
modification hearing and imposition of sentence’”]; People v.
Simms (2018) 23 Cal.App.5th 987, 996 [defendant’s right to be
personally present “extends to sentencing and resentencing
proceedings”]; see Cutting, at p. 348; People v. Rouse (2016)
245 Cal.App.4th 292, 300 [when court is expected to exercise its
sentencing discretion and restructure the entire sentencing
package, the proceeding is properly characterized as a critical
stage]). The defendant also has a statutory right to be present at
sentencing proceedings. (§ 977, subd. (b)(1).)
In addition, defendants have a constitutional right to
counsel at all critical states of a criminal trial, including
sentencing. (Marshall v. Rodgers (2013) 569 U.S. 58, 62
[133 S.Ct. 1446, 185 L.Ed.2d 540] [“[i]t is beyond dispute that
‘[t]he Sixth Amendment safeguards to an accused who faces
incarceration the right to counsel at all critical stages of the
criminal process’” up to and including sentencing]; Gardner v.
Appellate Division of Superior Court (2019) 6 Cal.5th 998, 1003
[same]; People v. Doolin (2009) 45 Cal.4th 390, 453.)
Second, when a case is remanded for resentencing, “‘a full
resentencing as to all counts is appropriate, so the trial court can
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exercise its sentencing discretion in light of the changed
circumstances.’” (People v. Buycks (2018) 5 Cal.5th 857, 893;
accord, People v. Bell (2020) 48 Cal.App.5th 1, 24 [upon appellate
court’s striking of a section 667.5, subdivision (b), prior prison
term enhancement, “the trial court is entitled to reconsider
appellant’s entire sentence”]; People v. Acosta (2018)
29 Cal.App.5th 19, 26 [on remand for resentencing “the trial
court will have ‘“jurisdiction to modify every aspect of
[appellant’s] sentence”’”].)
Third, under the rule of In re Estrada (1965) 63 Cal.2d 740,
“in the absence of a savings clause providing only prospective
relief or other clear intention concerning any retroactive effect, ‘a
legislative body ordinarily intends for ameliorative changes to the
criminal law to extend as broadly as possible, distinguishing only
as necessary between sentences that are final and sentences that
are not.’” (People v. Buycks, supra, 5 Cal.5th at p. 881; accord,
People v. Stamps (2020) 9 Cal.5th 685, 699.) Specifically, a
defendant resentenced after January 1, 2019 (and whose
sentence, therefore, is not yet final) is entitled to the benefit of
Senate Bill No. 620 (2017-2018 Reg. Sess.), effective January 1,
2018, allowing a trial court to strike or dismiss firearm
enhancements under sections 12022.2 and 12022.53, and Senate
Bill No. 1393 (2017–2018 Reg. Sess.), effective January 1, 2019,
allowing a trial court to dismiss a section 667, subdivision (a),
prior serious felony enhancement in furtherance of justice.
(See Stamps, at p. 699.)
Millare contends all three of these principles apply when
the trial court corrects a previously imposed sentence in response
to a letter from CDCR pointing out possible errors in the court’s
calculations. Accordingly, he asserts, he was deprived of his
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constitutional right to be present at resentencing; and the error
was not harmless because neither he nor his counsel was given
the opportunity to argue the court should exercise its discretion
to strike or dismiss one or both of the firearm enhancements and
the prior serious felony enhancement, which were mandatory in
1996 and 1998, but discretionary in 2019.
It is far from clear that Millare was resentenced within the
meaning of People v. Buycks, supra, 5 Cal.5th 857 and the other
cases he cites when the trial court, in response to CDCR’s
January 11, 2018 letter, corrected the concurrent sentence
imposed for shooting into an occupied vehicle. Section 1170,
subdivision (d)(1), authorizes a trial court upon recommendation
of the secretary of the CDCR to “recall the sentence and
commitment previously ordered and resentence the defendant in
the same manner as if he or she had not previously been
sentenced, provided the new sentence, if any, is no greater than
the initial sentence.” The letter that inquired about a possible
sentencing error and triggered the December 31, 2019 correction
in this case, however, was from a case records analyst, not
CDCR’s secretary, and did not, either expressly or implicitly,
recommend recalling Millare’s sentence. (See People v.
Humphrey (2020) 44 Cal.App.5th 371, 380 [correction of error in
abstract of judgment at suggestion of CDCR, which did not
recommend recalling the sentence under section 1170,
subdivision (d)(1), did not constitute resentencing entitling
defendant to benefit of Senate Bill No. 620]; see also People v.
Hill (1986) 185 Cal.App.3d 831, 833-834 [after CDCR
recommended recall and resentencing because of illegality in the
sentence, the trial court is entitled to reconsider the entire
sentencing scheme].) But we need not decide that question
8
because Millare appealed only from the March 11, 2020 order
denying his own motion for resentencing, not the sentence
imposed on December 31, 2019.6 Accordingly, any errors that
may have occurred in connection with the correction of his
sentence on December 31, 2019 are not before us.
As for the order Millare has appealed, it, too, is not
properly before us because it is not an appealable order.
Generally, a trial court has no jurisdiction to resentence a
defendant after execution of the sentence has begun. (People v.
Karaman (1992) 4 Cal.4th 335, 344; People v. Hernandez (2019)
34 Cal.App.5th 323, 326.) As discussed, section 1170,
subdivision (d)(1), the statute upon which Millare based his
motion, authorizes the trial court to recall a sentence and
resentence the defendant upon recommendation of the secretary
of CDCR. It also authorizes the trial court on its own motion
within 120 days of the defendant’s commitment to recall the
sentence and, upon recommendation of the Board of Parole
Hearings or the district attorney of the county in which the
defendant was sentenced, to resentence the defendant at any
time. In addition, the trial court may at any time correct
computational and clerical errors. (See People v. Torres (2020)
44 Cal.App.5th 1081, 1085.) Millare’s request for resentencing,
which at this point asks for an opportunity to seek dismissal of
several now-discretionary enhancements, does not fall within any
6 Millare filed his notice of appeal on March 23, 2020,
83 days after the December 31, 2019 hearing. Even if we were to
liberally construe his notice of appeal to include that order, the
notice would be untimely. (Cal. Rules of Court, rule 8.308(a)
[notice of appeal must be filed within 60 days after the rendition
of the judgment or the making of the order being appealed].)
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of these exceptions to the trial court’s general lack of
resentencing jurisdiction.
If the trial court lacks jurisdiction to rule on a motion to
vacate or modify a sentence, an order denying such a motion is
not appealable; and an appeal from such an order must be
dismissed. (People v. Torres, supra, 44 Cal.App.5th at p. 1084;
see People v. Alexander (2020) 45 Cal.App.5th 341, 345
[dismissing an appeal from an order denying the defendant’s
motion to strike enhancements for prior serious felony
convictions under Senate Bill No. 1393 because the trial court
lacked jurisdiction to grant the motion]; People v. Hernandez,
supra, 34 Cal.App.5th at pp. 326-327 [dismissing an appeal from
an order denying the defendant’s motion to dismiss a firearm
enhancement under Senate Bill No. 620 because the trial court
lacked jurisdiction to grant the motion]; People v. Fuimaono
(2019) 32 Cal.App.5th 132, 135 [same].)
DISPOSITION
The appeal is dismissed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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