Tag Archives: Right to be present

Sentencing

Case 000929

Posted on by Gary McCurdy

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]

Duty of the court, Sentencing

Case: 000439

Posted on by Gary McCurdy

Error and/or relief

Relief is granted on this petition for writ of habeas corpus. The defendant is entitled to full resentencing under section 1172.75. In August 2022, pursuant to (now) section 1172.75, the trial court entered an order modifying petitioner’s judgment by dismissing the enhancements imposed pursuant to section 667.5(b). It is undisputed that petitioner was not notified of the court’s intent to modify the judgment, was not appointed counsel, was not notified of any court proceedings related to modification of the judgment, and did not appear at any such proceedings. It is also undisputed that the court did not conduct a full resentencing.

First Holding:

Effective January 1, 2022, what is now section 1172.75 declared invalid most sentence enhancements imposed pursuant to section 667.5(b). Once the Department of Corrections and Rehabilitation (CDCR) identifies a defendant serving a term for a judgment including a qualifying section 667.5(b) enhancement, the trial court is required to recall the sentence and resentence the defendant. The court is also required to appoint counsel.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. Section 1172.75 creates a presumption that the resentencing shall result in a lesser sentence than the one originally imposed. It expressly requires the court to consider postconviction factors, including evidence that reflects that circumstances have changed since the original sentencing, and it guides the trial court in selecting among the lower, middle, and upper term on each count. In this case, the defendant was entitled to, but did not receive, a full resentencing under the terms of section 1172.75, including the application of any other changes in law that reduce sentences or provide for judicial discretion. It was proper for him to seek relief by way of petition for writ of habeas corpus under the circumstances in this case.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Rogers (2025) 108 Cal.App.5th 340, 359–361

In re Reno (2012) 55 Cal.4th 428, 449–450 [Frequently used to challenge criminal convictions already affirmed on appeal, the writ of habeas corpus permits a person deprived of his or her freedom, such as a prisoner, to bring before a court evidence from outside the trial or appellate record, and often represents a prisoner’s last chance to obtain judicial review. A writ of habeas corpus may thus provide an avenue of relief to those unjustly incarcerated when the normal method of relief—i.e., direct appeal—is inadequate]

Due process, Duty of the court, Standard of review

Case: 000380

Posted on by Gary McCurdy

Error and/or relief

We review an order denying the defendants motion to vacate his conviction based on newly discovered evidence of factual innocence, pursuant to Penal Code section 1473.7(a)(2). We reverse the order because the defendant was entitled to a hearing in the trial court to consider his eligibility for relief under section 1473.7(d).

First Holding:

The construction and interpretation of a statute is a question of law that we consider de novo on appeal.

Authority:

People v. Fryhaat (2019) 35 Cal.App.5th 969, 975

Second Holding:

Section 1473.7 expressly provides that a person who is no longer in criminal custody may file a motion to vacate a conviction or sentence based on newly discovered evidence of actual innocence that requires vacation of the conviction or sentence as a matter of law or in the interests of justice. Persons who file a section 1473.7 motion are entitled to a hearing on the merits of the motion, per subdivision (d): “All motions shall be entitled to a hearing.” The plain language of section 1473.7 also entitles the moving party to be personally present at the hearing. However, upon the request of the moving party, the court may hold the hearing without the personal presence of the moving party provided that it finds good cause as to why the moving party cannot be present.

Authority:

PEN 1473.7

Third Holding:

As to appointment of counsel on the defendant’s behalf, the trial court was required to determine whether his petition stated a prima facie case for relief. If a prima facie case has been made, appointment of counsel is demanded by due process concerns. Here, the trial court summarily denied the petition without addressing entitlement to counsel and whether the defendant had presented a prima facie case for relief. The court reviewed only a handwritten one-page motion that it determined fails to cite to a basis for the relief without reviewing the entirety of the defendant’s 42-page motion.

Authority:

People v. Fryhaat (2019) 35 Cal.App.5th 969, 981, 983

Appellate Principles, Duty of the court, Sentencing

Case: 000352

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in not conducted a full resentencing under section 1172.75 after striking the now-invalid prior prison term enhancements and in conducting the hearing in the absence of the defendant without his express consent.

First Holding:

A defendant is entitled to a full resentencing hearing under section 1172.75.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [by its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements]

Second Holding:

Absent a valid waiver under section 977, defendant is entitled to be present physically or by remote appearance at resentencing.

Authority:

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

Third Holding:

Resentencing under section 1172.75 ordinarily must be initiated by the California Department of Corrections and Rehabilitation (CDCR), by the CDCR notifying the trial courts—no later than December 31, 2023—of all incarcerated individuals who may be entitled to relief under the statute. Compare Burgess with Cota–two cases discussing different circumstances under which a defendant-initiated resentencing petition is improper, but the CDCR’s failure to notify trial court by deadline does not preclude full resentencing hearing. Here, it appears the trial court’s early, but incomplete action granting defendant some resentencing relief by striking his section 667.5(b) prison-prior terms in 2022 made it unlikely defendant would appear on the CDCR resentencing-eligibility lists submitted to the trial court in 2023. That defendant may have fallen through the cracks in this manner does not deprive him of full resentencing eligibility under section 1172.75. To the extent necessary for procedural regularity, we deem defendant’s appeal here a petition for habeas corpus to secure the resentencing hearing the People concede is necessary.

Authority:

PEN 1172.75(b) and (c)

People v. Burgess (2022) 86 Cal.App.5th 375, 379-382

People v. Cota (2025) 112 Cal.App.5th 1118, 1131

People v. Boyd (2024) 103 Cal.App.5th 56, 71-72 [appeal may be treated as a habeas corpus petition in the interest of judicial economy]

Due process, Sentencing

Case: 000248

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
At the resentencing hearing ordered as result of a the prior appeal, the trial court erred by resentencing the defendant without his personal presence, failing to conduct a full resentencing, and miscalculating his credits for time served.

[Gary note: the opinion indicates that the abstract following the remand was incorrect, that an amended abstract filed thereafter was incorrect in other respects, and a new amended abstract contained several errors–including in the minute order that the defendant had waived his presence, yet there was nothing in the reporter’s transcripts to indicate he had waived his presence. I reiterate a comment I made in an earlier post: Counsel really should examine the abstracts of judgment carefully, whether the defendant was the client at the trial level or at the appellate level.]

First Holding:

A defendant has a constitutional right to be present at all critical stages of the criminal prosecution, i.e., all stages of the trial where his absence might frustrate the fairness of the proceedings. The defendant’s right to be present includes at a resentencing hearing.

Authority:

People v. Rodriguez (1998) 17 Cal.4th 253, 260 [right to presence following remand to consider dismissing strike]

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

Second Holding:

Section 977 requires that a felony defendant shall be physically present at the time of the imposition of sentence. It allows a defendant to waive their physical presence only for other proceedings.

Authority:

PEN 977(b)(1)

Third Holding:

Notwithstanding section 977, waiver of personal appearance at felony sentencing is permitted by section 1193 if the defendant, in open court and on the record or in a notarized writing, requests that judgment be pronounced against the defendant in his or her absence. This provision applies to resentencing following an appellate court remand. But the defendant did not waive his right to be present at sentencing in open court or by a notarized writing. Accordingly, the trial court erred when it resentenced him without his personal presence.

Authority:

PEN 977(b)(1)

People v. Cutting (2019) 42 Cal.App.5th 344, 345-346

People v. Sanchez (2016) 245 Cal.App.4th 1409, 1414

Fourth Holding:

At the resentencing, the trial court failed to update the defendant’s custody credits. The amended abstract must include credit for actual days in custody after the original sentencing until the date of resentencing. On remand, the trial court must calculate the actual time in prison; the determination of prison conduct credits is left to the prison administration

Authority:

People v. Sanchez (2016) 245 Cal.App.4th 1409, 1418

People v. Honea (1997) 57 Cal.App.4th 842, 845, disapproved on other grounds in People v. Johnson (2004) 32 Cal.4th 260, 268, fn. 3.

Fifth Holding:

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.

Authority:

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

Sixth Holding:

Although we concluded in the first appeal that the trial court did not abuse its discretion when it denied the motion to dismiss the strike pursuant to Romero, supra, 13 Cal.4th 497, the trial court on resentencing had jurisdiction to reconsider that ruling.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 364

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Rodriguez (1998) 17 Cal.4th 253, 260

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