Filed 11/20/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CARL EDWARD CUTTING,

Defendant and Appellant.

B295298

(Los Angeles County

Super. Ct. No. VA138509)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Michael A. Cowell, Judge. Reversed with 

directions.

Maggie Shrout, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Senior Assistant Attorney General, Paul M. Roadarmel, Jr., 

Supervising Deputy Attorney General, Stephanie A. Miyoshi and 

Allison H. Chung, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________________
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Carl Edward Cutting appeals the sentence imposed 

following remand for resentencing with the direction that the 

trial court strike a nine-year enhancement imposed under Health 

and Safety Code1 section 11370.2, subdivision (a). Cutting 

contends he is entitled to a new sentencing hearing because he 

was not present when the trial court resentenced him, in 

violation of his constitutional and statutory rights. We agree. 

Cutting’s absence from the resentencing hearing constitutes 

federal constitutional error requiring reversal unless the People 

demonstrate the error was harmless beyond a reasonable doubt. 

They have not done so, and we cannot conclude beyond a 

reasonable doubt that Cutting’s presence at resentencing would 

not have influenced the trial court’s exercise of its discretion,

thus affecting the outcome. The matter is therefore remanded to 

the trial court to conduct a new resentencing hearing at which 

Cutting must be present unless he waives the right pursuant to 

Penal Code section 1193.

PROCEDURAL BACKGROUND

A four-count information charged Cutting with 

(1) possession for sale of a controlled substance in violation of

Health and Safety Code section 11351; (2) possession of a firearm 

by a felon in violation of Penal Code section 29800, subdivision 

(a)(1); (3) possession of ammunition in violation of Penal Code 

section 30305, subdivision (a)(1); and (4) child abuse in violation 

of Penal Code section 273a, subdivision (a). Cutting entered an 

open plea of no contest or guilty to each of the four charged 

1 Undesignated statutory references are to the Health and 

Safety Code.
3

counts. He also admitted three prior convictions for violations of 

Health and Safety Code sections 11378 (possession of controlled 

substance for sale) and 11379 (transportation of controlled 

substance), and two prior convictions under Penal Code sections 

118 (perjury) and 459 (burglary).

As part of his open plea, Cutting was advised that his 

maximum statutory sentence for the counts to which he pleaded 

was 21 years 8 months plus 8 months for a probation violation. 

The trial court imposed an aggregate sentence of 19 years plus 8 

months for the probation violation. The sentence included a nineyear enhancement under section 11370.2, subdivision (a), 

composed of three enhancements of three years each for Cutting’s

three prior convictions under sections 11378 and 11379. The 

court also ordered a total of 12 years on the remaining counts to 

run concurrently with the base term.

Cutting appealed his sentence on the ground that a change 

in the law which became effective after Cutting was sentenced 

precluded imposition of the nine-year enhancement based on the 

prior convictions under sections 11378 and 11379. We agreed, 

reversed the sentence, and remanded with directions that the 

trial court strike the enhancements and resentence Cutting in 

light of all the relevant factors, including the changed legal 

landscape with respect to the section 11370.2 enhancements. 

(People v. Cutting (Aug. 13, 2018, B284539 [nonpub. opn.].)

The trial court appointed Cutting’s trial counsel to 

represent him on remand. Trial counsel advised the court that, 

because the postremand sentence would be less than the original 

sentence, Cutting’s presence at the resentencing hearing was not 

required by law.
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At resentencing on December 19, 2018, the trial court noted 

that Cutting was not present because he was in state prison, but 

he was represented by counsel. Defense counsel requested the 

identical sentence the court had previously imposed minus the 

nine-year enhancement, for an aggregate sentence of 10 years 8 

months. The People asked the court to impose consecutive time 

on the counts that were previously sentenced concurrently with 

the base term.

The court noted that it had originally reduced Cutting’s 

maximum possible sentence by two years by sentencing the

counts concurrently. But because Cutting’s sentence on remand 

was already being reduced by nine years based on the change in 

the law, the court refused “to knock an additional two years off” 

by again sentencing the subordinate counts concurrently. 

Accordingly, the court imposed an aggregate sentence of 12 years 

8 months, consisting of the base term of 10 years, plus 2 years 8

months consecutive on the remaining counts (one-third the 

midterm for each of three counts).

DISCUSSION

I. Cutting Had a Constitutional Right to Be Present at 

Resentencing

“ ‘A criminal defendant’s right to be personally present at 

trial is guaranteed under the federal Constitution by the

confrontation clause of the Sixth Amendment and the due process 

clause of the Fourteenth Amendment. It is also required by

section 15 of article I of the California Constitution and by [Penal 

Code] sections 977 and 1043.’ ” (People v. Blacksher (2011) 52 

Cal.4th 769, 798–799; People v. Bradford (1997) 15 Cal.4th 1229, 

1356–1357.) The defendant’s federal constitutional right to be 

personally present at trial extends to “all critical stages of the 
5

criminal prosecution, i.e., ‘all stages of the trial where his absence 

might 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 (Rodriguez); 

People v. Cole (2004) 33 Cal.4th 1158, 1230; People v. Virgil

(2011) 51 Cal.4th 1210, 1234.)

Sentencing is considered to be one such critical stage 

(People v. Doolin (2009) 45 Cal.4th 390, 453; People v. Fedalizo

(2016) 246 Cal.App.4th 98, 110 (Fedalizo)), and, because the trial 

court has discretion to reconsider the entire sentence on remand, 

resentencing is another critical stage. (Rodriguez, supra, 17 

Cal.4th at p. 257 [“The 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 (Simms) [defendant’s 

right to be personally present “extends to sentencing and 

resentencing proceedings”]; see People v. Rouse (2016) 245 

Cal.App.4th 292, 300 [where court is expected to exercise its 

sentencing discretion and restructure the entire sentencing 

package, the proceeding is properly characterized as a critical 

stage].)

In light of these principles, Cutting contends he was 

entitled to be present at the December 19, 2018 resentencing 

hearing. He did not waive his right to be present, and his lawyer 

did not represent to the court that he had surrendered it. (See 

Fedalizo, supra, 246 Cal.App.4th at p. 110 [“absent defendant 

must authorize the acts of his counsel,” but court may rely on 

counsel’s representation that defendant is knowingly absent].) 

We conclude that the trial court erred in proceeding with 
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resentencing in Cutting’s absence and without a valid waiver of 

his right to be present.

II. Cutting’s Absence from the Resentencing Hearing 

Cannot Be Deemed Harmless Beyond a Reasonable 

Doubt

Because the trial court’s error resulted in a violation of 

Cutting’s federal constitutional right to be present at a critical 

stage of the proceedings, we review the error under Chapman v. 

California (1967) 386 U.S. 18, 23 (Chapman), to determine if it 

was harmless beyond a reasonable doubt. (People v. Mendoza

(2016) 62 Cal.4th 856, 902 [“ ‘Under the federal Constitution, 

error pertaining to a defendant’s presence is evaluated under the 

harmless-beyond-a-reasonable-doubt standard set forth in 

Chapman’ ”]; People v. Davis (2005) 36 Cal.4th 510, 532 [same].) 

Under that standard, the error “may be deemed harmless only if 

we can conclude beyond a reasonable doubt that the deprivation 

did not affect the outcome of the proceeding.” (Simms, supra, 23 

Cal.App.5th at p. 998; People v. Rutterschmidt (2012) 55 Cal.4th 

650, 661 [federal constitutional error requires reversal of the 

judgment “unless the prosecution can show ‘beyond a reasonable 

doubt’ that the error was harmless”].)

Respondent contends that the Watson2 harmless error 

analysis applies to Cutting’s involuntary absence from the 

resentencing hearing in this case. According to respondent, 

under that standard Cutting’s claim lacks merit because he fails 

2 People v. Watson (1956) 46 Cal.2d 818, 836.
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to demonstrate any prejudice from his absence at the hearing.3 

The People, however, fundamentally misapprehend their burden 

on appeal: Under the Chapman harmless error standard, the 

burden is on the People, not the defendant, to demonstrate that

the violation of the defendant’s federal constitutional right was 

harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. 

at p. 24; People v. Mower (2002) 28 Cal.4th 457, 484 [Chapman 

standard “requires the People, in order to avoid reversal of the 

judgment, to ‘prove beyond a reasonable doubt that the error . . . 

did not contribute to the verdict obtained’ ”]; People v. Stritzinger

(1983) 34 Cal.3d 505, 520 [“The burden is on the beneficiary of 

the error ‘either to prove that there was no injury or to suffer a 

reversal of his erroneously obtained judgment’ ”].)

Respondent’s reliance on People v. Hines (1997) 15 Cal.4th 

997, 1038–1039, and In re Jesusa V. (2004) 32 Cal.4th 588, 625

(Jesusa), is misplaced. Neither of these cases implicated a 

criminal defendant’s federal constitutional right to be personally 

present at a critical stage of the trial as is the case here. Hines

did not involve sentencing proceedings, and the court found none 

3 Respondent would be correct if the resentencing in this 

case were not a critical stage and the violation of Cutting’s right 

to be personally present were not a federal constitutional error. 

A violation of a criminal defendant’s right to be present under the 

California Constitution and his statutory rights under Penal 

Code sections 977 and 1043 “is state law error only, and therefore 

is reversible only if ‘ “it is reasonably probable that a result more 

favorable to the appealing party would have been reached in the 

absence of the error.” ’ ” (People v. Davis, supra, 36 Cal.4th at 

pp. 532–533; People v. Blackburn (2015) 61 Cal.4th 1113, 1132.)
8

of the proceedings conducted in the defendant’s absence impaired 

his right to defend against the charges. (Hines, at p. 1039.) 

Accordingly, because the defendant’s federal constitutional right 

to be present was not implicated, the issue was subject to Watson

harmless error analysis.

Jesusa also did not involve a criminal defendant’s right to 

be personally present at sentencing proceedings as a matter of 

federal constitutional law, but rather an incarcerated father’s 

challenge to the juvenile court’s adjudication of a dependency 

petition in the father’s absence. (Jesusa, supra, 32 Cal.4th at 

p. 596.) Specifically noting that the father’s “presence was 

neither constitutionally required nor mandated by [the court’s] 

rules,” the high court analogized the denial of the father’s right to 

be present under Penal Code section 2625 to a criminal 

defendant’s right to be present at trial under Penal Code sections 

977 and 1043. (Jesusa, at p. 624.) Applying a state-law harmless 

error standard, the court found the juvenile court’s adjudication 

of the dependency petition in the father’s absence to be harmless. 

(Id. at pp. 596, 624–625.)

Our Supreme Court has “held that when part of a sentence 

is stricken on review, on remand for resentencing ‘a full 

resentencing as to all counts is appropriate, so the trial court can 

exercise its sentencing discretion in light of the changed 

circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.) 

Thus, in remanding this case for resentencing, we directed the 

trial court to strike the enhancements under section 11370.2, but 

we specifically left “to the trial court to determine the appropriate 

sentence in light of all the relevant factors, including the changed 

legal landscape with respect to the section 11370.2 

enhancements.” Accordingly, the trial court had jurisdiction to 
9

modify every aspect of the sentence, not just the imposition of the 

enhancements, and in resentencing Cutting, the court could

consider “ ‘any pertinent circumstances which have arisen since 

the prior sentence was imposed’ ” in exercising its discretion. 

(Buycks, at p. 893; Pen. Code, § 1170, subd. (d)(1).)

Here, Cutting may have offered mitigating factors that 

arose after his original sentencing; he may have expressed 

remorse; he may have made a plea for leniency. (See Pen. Code, 

§ 1170, subd. (d)(1).) While the trial court may or may not have 

chosen to believe what Cutting 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. 

(See Simms, supra, 23 Cal.App.5th at p. 998; see also Rodriguez, 

supra, 17 Cal.4th at p. 258 [“[t]he evidence and arguments that 

might be presented on remand cannot justly be considered 

‘superfluous,’ because defendant and his counsel have never 

enjoyed a full and fair opportunity to marshal and present the 

case supporting a favorable exercise of discretion”].) In short, 

“remand is necessary to ensure proceedings that are just under 

the circumstances, namely, a hearing at which both the People 

and defendant may be present and advocate for their positions.” 

(People v. Rocha (2019) 32 Cal.App.5th 352, 360.)
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DISPOSITION

The judgment following resentencing is reversed, and the 

matter is remanded. The trial court is ordered to conduct a new 

resentencing hearing at which Cutting is present unless he 

waives his presence in accordance with Penal Code section 1193.

CERTIFIED FOR PUBLICATION.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.