Error and/or relief
It was error for the trial court to resentence the defendant under section 1172.75 in his absence where there was no waiver of his presence.
First Holding:
Reversal is required for a new hearing at which defendant may be present or validly waive his presence. Nothing in the record at the resentencing hearing reflected a valid waiver, nor similarly was there evidence that the defendant or his attorney previously entered a valid waiver on the record. We cannot say the error was harmless given that section 1172.75(d)(3) calls for consideration of the postconviction factors defendant enumerated in his brief, but the defendant was deprived of his right to address these factors personally if he chose to do so or to aid his attorney in doing so. The error thus was not harmless beyond a reasonable doubt.
Authority:
People v. Velasco (2023) 97 Cal.App.5th 663, 674
People v. Quan (2023) 96 Cal.App.5th 524, 535
Chapman v. California (1967) 386 U.S. 18