California Penal Code Section 1260 - Interpretation
In People v. Rodriguez (1998) 17 Cal. 4th 253, the Supreme Court discussed the nature of the proceeding in the trial court following a limited remand pursuant to People v. Superior Court (Romero) (1996).
The issue in Rodriguez was whether the defendant was entitled to attend the proceeding even when the court intended not to exercise its discretion to dismiss a strike prior.
The People maintained the defendant's statutory and constitutional rights to be present with counsel at all critical stages of a criminal prosecution were not implicated in that situation because he was not being sentenced nor was judgment being pronounced.
The court began its discussion by noting:
"We may assume that a reviewing court has the power, when a trial court has made a mistake in sentencing, to remand with directions that do not inevitably require all of the procedural steps involved in arraignment for judgment and sentencing. Section 1260, which sets out the permissible dispositions of a cause on appeal, permits the reviewing court to 'remand the cause to the trial court for such further proceedings as may be just under the circumstances.' . . . Thus, it appears we may properly remand to permit the trial court to make the threshold determination of whether to exercise its discretion in defendant's favor without necessarily requiring resentencing unless the court does act favorably." (People v. Rodriguez, supra, 17 Cal. 4th at p. 258.)
Even when the defendant is not resentenced, however, the court held section 1260 alone "provides sufficient authority to require defendant's presence on remand" because it would be "manifestly unfair" to permit the trial court to decide how to exercise its discretion without giving the defendant an opportunity to address the issue. (People v. Rodriguez, supra, 17 Cal. 4th at p. 260.)
Therefore, the court concluded:
"On remand, the superior court should conduct a hearing in the presence of defendant, his counsel, and the People to determine whether to dismiss one or more prior felony conviction findings pursuant to section 1385.
If the court decides to dismiss one or more findings, the court should proceed to resentence defendant.
If the court decides not to dismiss a finding, the court should remand defendant to the custody of the Department of Corrections to serve the remainder of his term." (17 Cal. 4th at p. 260.)