Monthly Archives: September 2026

Error and/or relief

The defendant’s presence at his resentencing hearing was not waived. We therefore reverse and remand to the trial court for resentencing in accordance with the defendant’s constitutional right to be present.

First Holding:

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. This right extends to all critical stages of the criminal prosecution and includes sentencing and resentencing.

Authority:

Cal. Const. art. I, sec. 15

PEN 977

PEN 1043

People v. Concepcion (2008) 45 Cal.4th 77, 81

People v. Cutting (2019) 42 Cal.App.5th 344, 347–348

Second Holding:

The right to be present may be waived. However, pursuant to section 977(b)(1) and (2), in all cases in which a felony is charged, the defendant is required to be personally present at the time of the imposition of sentence unless he or she executed a written waiver of his or her right to be present or the waiver was properly entered orally on the record.

Section 977 lays out specific requirements for the waiver to be held valid. The right to be present at the imposition of sentence includes the right to be present at a resentencing hearing because the trial court has discretion to reconsider the entire sentence on remand for resentencing.

Authority:

People v. Concepcion (2008) 45 Cal.4th 77, 82

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Third Holding:

When errors involving a defendant’s federal constitutional rights are implicated, the standard set forth in Champman applies and the error is prejudicial and requires reversal unless we can conclude beyond a reasonable doubt that it did not affect the outcome of the proceeding.

Authority:

Chapman v. California (1967) 386 U.S. 18

People v. Velasco, 97 Cal.App.5th 663, 674

Fourth Holding:

On the facts before us, we are unable to conclude that the error in conducting a resentencing hearing in the defendant’s absence without a valid waiver of his presence was harmless beyond a reasonable doubt. As in Velasco and Cutting, because the defendant was not physically present at resentencing, he was unable to present any of these types of argument. Nor could he directly address the court or aid his attorney, perhaps by providing new and updated information or circumstances justifying a more lenient sentence.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [resentencing court may consider any pertinent circumstances which have arisen since the prior sentence was imposed]