When a trial court grants a Proposition 47 petition and vacates the original sentence and restructures it, the defendant has a Sixth Amendment right to counsel at the resentencing hearing. In November 2014, Rouse was serving a five-year prison term for four offenses, including second degree commercial burglary. He petitioned to have his burglary offense reduced to misdemeanor shoplifting (Pen. Code, § 459.5) pursuant to Proposition 47, and waived his right to be present at the hearing. The trial court granted the petition, vacated the original sentence, and resentenced on all counts such that Rouse still had a five-year term. Rouse was not represented by counsel at the hearing. On appeal, Rouse challenged the denial of counsel at the hearing. Held: Reversed and remanded. The Sixth Amendment guarantees an accused person the right to counsel at all critical stages of a criminal proceeding. A “critical stage” involves an adversarial proceeding, combined with the possibility the defendant will suffer prejudice in some significant way by the absence of counsel. When a sentence is vacated and the case remanded for resentencing, the right to counsel attaches. Here, Rouse passed the initial Proposition 47 eligibility stage. The court found his petition meritorious and vacated the original sentence on multiple offenses and restructured it. This was akin to a plenary sentencing hearing at which Rouse’s substantial rights were in jeopardy without representation of counsel. It was therefore a “critical stage” of the criminal proceeding to which the right to counsel attached.

Even if the Sixth Amendment did not require representation by counsel at a Proposition 47 resentencing hearing, it is nonetheless necessary to accord due process. “Due process requires an incarcerated defendant be afforded the right to counsel in various circumstances where the Sixth Amendment does not.” Although Rouse waived his right to be present at the hearing, he did not waive his separate right to be represented by counsel.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B261503.PDF