When resentencing pursuant to Proposition 47, the trial court has discretion to alter the sentence on counts that are unaffected by Proposition 47, so long as the aggregate sentence does not exceed the term originally imposed. In March 2014, defendant entered pleas in four different cases, resulting in one conviction in each case. He admitted a strike prior. The trial court imposed a six-year aggregate sentence. In April 2015, defendant filed a Proposition 47 petition for resentencing on some counts. The trial court redesignated defendant’s burglary and drug possession felonies as misdemeanors. It then imposed an aggregate six-year term by increasing a robbery sentence from four years (two-year midterm, doubled) to six years (three-year upper term, doubled). On appeal defendant challenged the trial court’s jurisdiction to resentence him on counts unaffected by Proposition 47. Held: Affirmed. Proposition 47 reclassified certain theft and drug-related felonies as misdemeanors and provides a mechanism whereby eligible defendants may seek resentencing. When a trial court resentences a defendant and some of the counts fall under Proposition 47 and others do not, the court has jurisdiction to resentence on all counts (Pen. Code, § 1170.1, subd. (a)). A Proposition 47 petition is similar to recall of a sentence under Penal Code section 1170, subdivision (d), or to a remand after reversal of a felony count for which a subordinate term has been imposed, and in these instances the trial court has discretion to reconsider its prior sentencing choices, so long as the aggregate sentence does not exceed that originally imposed. This is consistent with the purpose of Proposition 47, which was to require misdemeanors instead of felonies for certain nonserious crimes; not to decrease the aggregate sentences in all cases where Proposition 47 relief is granted.

The trial court was not required to vacate defendant’s conviction for failure to appear after it reduced the underlying felony to a misdemeanor. Defendant claimed the trial court should have vacated his felony conviction for failure to appear (Pen. Code, § 1320.5) after reducing the underlying felony (drug possession) to a misdemeanor, because section 1320.5 requires that the person be “charged with” or “convicted of” a felony, and the predicate offense for this charge is now a misdemeanor “for all purposes” (Pen. Code, § 1170.18, subd. (k)). However, while Proposition 47 established a procedure for resentencing for enumerated offenses, it did not provide for redesignation of any other convictions, including ones that are collateral or ancillary to a redesignated conviction. At the time defendant failed to appear on a pending felony charge, the underlying offense had not yet been reduced to a misdemeanor. Thus, when defendant failed to appear, he was “charged with” a felony and, therefore, his felony failure to appear conviction remains valid.

Defendant had a constitutional right to be present at the Proposition 47 resentencing hearing, but the denial of that right was harmless error. Preliminarily, defendant’s claim he had a right to be present at the resentencing hearing is not procedurally barred for failure to appeal following the resentencing hearing, because by the time his attorney informed him of the outcome of that hearing, it was too late to appeal. A court may consider a petition for writ of habeas corpus that is basically a substitute for appeal where there are “special circumstances” excusing the failure to appeal. On the merits, the resentencing hearing was a critical stage of the criminal proceeding because the trial court had jurisdiction to refashion the entire sentence. Thus, defendant was entitled to be present. However, his absence from the hearing is not structural error, but is evaluated under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 23. Defendant has not shown that he made efforts at rehabilitation, nor has he provided any authority that such efforts are relevant to his resentencing. He did not support his allegation that, had he been present, he could have corrected the trial court’s impression it was required to re-impose six years, as he did not provide the reviewing court with a reporter’s transcript of the resentencing. Thus, the error was harmless.

Defendant is not entitled to reversal of his sentence based on ineffective assistance of counsel (IAC). Defendant claims he received IAC at his resentencing hearing because his attorney failed to object to the trial court’s increase in the terms imposed for the robbery and failure to appear convictions, and may have stipulated to these increases. To prevail on a claim of IAC, defendant must show not only that counsel’s performance fell below a standard of reasonable competence, but also that prejudice resulted (Strickland v. Washington (1984) 466 U.S. 668, 687-688). Assuming that trial counsel was ineffective, no prejudice has been shown because the trial court had jurisdiction to increase the terms for these convictions and defendant failed to show that an objection would have resulted in a more favorable sentence.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H043114.PDF