Tag Archives: Right to be present

Amelioration, Sentencing

Case: 000191

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to sentencing relief under section 1172.75 for prior prison term enhancements which were imposed and stayed. Absent a valid waiver of his presence, defendant is entitled to be present at his resentencing hearing on remand.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for enhancements for certain sexually violent offenses, is legally invalid. If a prior prison term enhancement becomes invalid under the section, a trial court shall recall the sentence and resentence the defendant, and, in doing so, shall apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. If the enhancement is no longer authorized under the current version of section 667.5(b), section 1172.75(a) renders the enhancement invalid. And the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.

[Gary note: This opinion was filed before Espino was decided. It is not applicable here because the prior conviction was stayed. But I think it is important to know the current complete state of the law. Rhodius dealt solely with prior convictions whose punishment was stayed, deferring the question whether section 1172.75 applies to prior convictions that were stricken. On July 2, 2026, the Supreme Court answered that question in People v. Espino (2026) ___ Cal.5th ___ (S286987). It held that section 1172.75 applies to those prior convictions that were stricken at time of sentencing. This is not discussed in the summary above because the trial court had relied the prior conviction having been stayed, not stricken, which was directly addressed by Rhodius.]

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1068

[People v. Espino (2026) ___ Cal.5th ___ (S286987)]

Third Holding:

By its own terms, section 1172.75 ensures the defendant’s right to be present, represented by counsel, and present evidence at the hearing.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 673-674

Abstracts and Minutes, Amelioration, Sentencing

Case: 000158

Posted on by Gary McCurdy

Error and/or relief

Defendant appeals the trial court’s resentencing order, arguing prejudicial error occurred because he was not present at the resentencing hearing in the 1172.6 proceedings and did not waive his constitutional right to be present. We reverse and remand the matter with directions to hold a new hearing with defendant present or to obtain a valid waiver. The abstract of judgment currently reflects that he waived his presence, but this is incorrect, and it must be corrected if the defendant does not waive his presence on remand.

First Holding:

Penal Code section 1172.6 permits resentencing for a person convicted of murder, attempted murder, or manslaughter under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime. if a prima facie case for relief is made, the statute requires an evidentiary hearing where the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty under the revised law. At this hearing, the court may consider evidence previously admitted at any prior hearing,” and the “prosecutor and the petitioner may offer new or additional evidence.

Authority:

PEN 1172.6

Second Holding:

A defendant has the constitutional right to be personally present in court where necessary to protect the defendant’s opportunity for effective cross-examination, or to allow the defendant to participate at a critical stage and enhance the fairness of the proceeding. This right is guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution, as well as article 1, section 15 of the California Constitution. Because a section 1172.6 hearing allows the court to potentially vacate a murder sentence through the admission of new evidence or by reweighing prior evidence, it is a critical stage and, as such, requires either a defendant’s presence or a valid waiver.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 532

People v. Basler (2022) 80 Cal.App.5th 46, 57

People v. Jackson (2025) 110 Cal.App.5th 128, 150-151

Third Holding:

The minute order asserts defendant waived his presence, but this conflicts with the transcript of the hearing and we presume the reporter’s transcript is more accurate.

Authority:

Garner v. BNSF Railway Co. (2024) 98 Cal.App.5th 660, 668

Fourth Holding:

Because a defendant’s absence from a critical stage in criminal proceedings is constitutional error, to be harmless it must be found beyond a reasonable doubt defendant’s absence did not affect the outcome of the proceeding.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

People v. Nieves (2021) 11 Cal.5th 404, 461

People v. Mendoza (2016) 62 Cal.4th 856, 902