People v. Saldana CA2/8 ( 2024 )

Filed 5/14/24 P. v. Saldana CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE OF THE STATE B324524
OF CALIFORNIA,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. VA135326)
v.
ANTHONY JESUS SALDANA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Joseph R. Porras, Judge. Reversed with
directions.
James M. Crawford, under appointment by the Court of
Appeal, for Plaintiff and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
In our opinion in People v. Saldana (Sept. 3, 2019, B292736
[nonpub. opn.]), we remanded the case with directions to the trial
court to exercise its discretion under Senate Bill No. 1393 as to
two 5-year enhancements for prior convictions under Penal Code
section 667, subdivision (a)(1). We also held that appellant
Anthony Jesus Saldana had the right to be present for the
resentencing hearing and to raise other issues deferred to the
trial court in our opinion. We specifically directed the trial court
in this manner: “The matter is remanded with directions to the
trial court to exercise its discretion under Senate Bill No. 1393.
(People v. Buckhalter (2001) 26 Cal.4th 20, 34–35.) At the
remand hearing, the defendant has the right to the assistance of
counsel, and unless he chooses to forgo it, the right to be present.”
(People v. Saldana, supra, B292736.)
The resentencing hearing was set for September 21, 2020.
Unfortunately, even though appellant requested to be present at
the hearing and was agreeable to delaying the hearing until after
the COVID crisis had subsided, the trial court proceeded in his
absence. The court explained why it was proceeding without
appellant:
“The court has kind of made the court’s view of this case
clear from the time I sentenced him after hearing in the jury trial
four years ago to also the striking of the gun allegation when we
did that hearing and we had to have him back from state prison.
Now we have this Covid crisis which is stopping all the transport
to and from county jail that has been going on. So we don’t know
when that’s going to end. We all know the case pretty much
inside and out. I don't know what him being here would add to
the argument made that's going to be made by Mr. Brown
[defense counsel] right now.
2
“This was a case that had gang allegations. Mr. Saldana
had been, or has been, a member of a local Whittier gang going
back many years, and having him in county jail was always an
issue to this court when the court knew that he was going to be
sentenced to state prison and the transport back and forth from
state prison to county jail in specifically Los Angeles county. But
I’m assuming a lot of the counties around California, although
some of the appellate courts and Justices on the California
Supreme Court might not be as closely situated with the
situation, the amount of gang activity and things that happen
between county jail and state prison, it’s a concern. And I know
weighing all the factors right now about his desire to be here and
what that would provide in this hearing, the court is going to
make a ruling right now that the court is going to proceed
because especially we don't know when this Covid thing is going
to end and bringing people back and forth and around for
multiple reasons is not the best thing.
“So the court is going to proceeded [sic] with this hearing
without the defendant and I’ll hear from Mr. Brown any oral
argument that you have, Mr. Brown, that supports Mr. Saldana’s
request to have the [Penal Code section 667, subdivision (a)(1)]
priors stricken.”
Defense counsel did not object and proceeded to make a
perfunctory argument:
“Mr. BROWN: Other than the court is aware of the record,
I don't need to repeat the record to the court. I’m simply going to
submit on the record indicating that if the court would exercise
its discretion to strike the five year priors, Mr. Saldana will likely
to never get out of prison.
“THE COURT: Thank you, Mr. Brown.”
3
After the prosecutor objected to striking the prior
convictions, the trial court stated in some detail how serious
appellant’s crimes had been.1 The court concluded that this was
not “an appropriate case to strike the five-year enhancements”
and denied the request to strike the enhancements.
We review de novo a criminal defendant’s assertion that he
was denied his constitutional right to be present for resentencing
or a sentence modification hearing. (People v. Waidla (2000)
22 Cal.4th 690, 741; People v. Sanchez (2016) 245 Cal.App,4th
1409, 1417.)
We understand the trial court’s concerns. Nonetheless, it
was improper to ignore our directions upon remand and proceed
without appellant present at the hearing. We are also
unimpressed with defense counsel’s performance. The court
should not have proceeded with resentencing in appellant’s
absence. We therefore vacate the court’s decision to deny the
request to strike the prior convictions. Because we are vacating
the court’s decision, we need not address appellant’s second
contention that his counsel provided ineffective assistance of
counsel at the resentencing hearing.
1 In People v. Saldana (Feb. 21, 2018, B280748 [nonpub.
opn.]) we affirmed appellant’s conviction for assault with a
firearm, shooting at an inhabited dwelling, two counts of
possession of a firearm by a felon, and a violation of a criminal
street gang injunction. The jury found that all but the violation
of the criminal street injunction were committed for the benefit of
a criminal street gang and we affirmed this with one exception.
(See fn. 2, post.) We also confirmed that appellant was subject to
the Three Strikes law. Appellant’s aggregate sentence was
50 years determinate plus 75 years to life.
4
Appellant contends, and respondent concedes, that the case
must be remanded to apply the reforms to gang enhancements
set forth in Assembly Bill No. 333.
We find appellant’s absence not harmless beyond a
reasonable doubt under Chapman v. California (1967) 386 U.S.
18, the applicable standard for prejudice as both parties concede.
Had appellant been present, he may have presented post-
conviction factors such as his disciplinary record and record of
rehabilitation while incarcerated, evidence reflecting whether
age, time served and diminished physical condition, if any, have
reduce his risk for future violence and evidence that otherwise
reflected changed circumstances. (People v. Velasco (2023)
97 Cal.App.5th 663, 674.) He also may have corrected his trial
counsel’s failure to raise issues we specifically deferred to the
trial court for resolution in our previous opinion.
We remand the case with directions to comply with our
opinion in People v. Saldana, supra, B292736. In addition, the
trial court should proceed with applying the reforms set forth in
Assembly Bill No. 333 to the gang enhancements in this case.2
Appellant must be present at the hearing unless he waives that
right.
The July 12, 2023, request for judicial notice of our court’s
prior two opinions in this matter is denied as superfluous. (Evid.
Code, § 459, subds. (a), (d).)
2 The surviving gang enhancements are to counts 1, 3 and 4
of the information. Our original opinion affirming the conviction
vacated the gang enhancement to count 5.
5
DISPOSITION
The judgment is reversed and the case is remanded with
directions to follow our instructions in this opinion and in People
v. Saldana, supra, B292736.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
VIRAMONTES, J.
6