People v. Ahumada CA2/2 ( 2024 )

Filed 10/24/24 P. v. Ahumada CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B330527
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. PA070015)
MARCOS AHUMADA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David Walgren, Judge. Reversed and remanded
with directions.
Sharon Fleming, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Kathy S. Pomerantz, Deputy Attorney
General, for Plaintiff and Respondent.
******
Marcos Ahumada (defendant) appeals the trial court’s
order resentencing him without his presence or a valid waiver of
his presence. The People concede this was error, and we agree.
We accordingly vacate the trial court’s resentencing order and
remand for a new resentencing hearing.
FACTS AND PROCEDURAL BACKGROUND
I. Facts1
A. The underlying crimes
On Valentine’s Day 2011, defendant walked into the
courtyard of the apartment complex where he used to live,
pointed a gun in the face of one resident, and told her, “I’m going
to blast you and your family,” or “I’m going to come back and
blast you and your kids.”
A few minutes later, defendant approached a woman
getting into her GMC Yukon in the parking lot of a Baptist
school. He pointed a gun in her face, and said, “Bitch, get out of
the fucking car. I’m going to fucking kill you.” After he got into
the Yukon but could not find the keys, he again threatened to
“fucking kill” the woman. When the woman told him precisely
where she had left the keys in the Yukon, he drove to a gas
station and got out to use a pay phone.
When he pulled out of the gas station, a marked police car
started to follow him. Once the pursuing officers turned on the
1 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s convictions. (People v. Ahumada
(May 28, 2013, B240577).)
2
car’s lights and sirens, defendant punched the acceleration and
drove through a residential neighborhood at 60 to 80 miles per
hour, at times driving on the wrong side of the street and blowing
through stop signs and stop lights. He nearly struck several
pedestrians, including a man in a wheelchair. The high-speed
chase ended when defendant crashed the Yukon and took off on
foot. Once apprehended and placed in handcuffs in the rear seat
of a patrol car, defendant kicked through the patrol car’s rear
window.
B. Prosecution, conviction and appeal
The People charged defendant with (1) making criminal
threats to the apartment resident (Pen. Code, § 422),2 (2)
assaulting the resident with a firearm (§ 245, subd. (a)(1)),3 (3)
carjacking the Yukon owner (§ 215, subd. (a)), (4) evading an
officer with willful disregard (Veh. Code, § 2800.2, subd. (a)), and
(5) misdemeanor vandalism for the damage to the patrol car
window (§ 594, subd. (a)). As to the criminal threats, assault and
carjacking counts, the People also alleged that defendant
personally used a firearm (§§ 12022.5, 12022.53, subd. (b)). The
People further alleged that defendant’s 2006 residential burglary
conviction constituted a prior “strike” under our Three Strikes
Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), that defendant
had one prior serious felony conviction (§ 667, subd. (a)), and that
2 All further statutory references are to the Penal Code
unless otherwise indicated.
3 Although the People originally charged this count as
assault with a semi-automatic firearm (§ 245, subd. (b)), the
People amended the count to assault with a firearm following the
verdict.
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defendant had served four prior prison sentences (§ 667, subd.
(b)).
A jury convicted defendant of all counts and found true the
firearm enhancements. Defendant admitted the prior convictions
pertinent to the sentencing enhancements.
The trial court imposed a prison sentence of 43 years and 8
months, to be followed by a jail sentence of one year (for the
misdemeanor). Specifically, the trial court imposed a sentence of
37 years on the carjacking count, comprised of a base sentence of
18 years (an upper term of nine years, doubled due to the prior
strike), plus ten years on the firearm enhancement, five years for
the prior serious felony, and four one-year sentences for the prior
prison terms. The court then imposed a consecutive sentence of
five years and four months for the assault with a firearm count,
comprised of a base sentence of two years (one third of the
midterm sentence of three years, doubled due to the prior strike)
plus three years and four months for the firearm enhancement
(one third of the midterm enhancement). The court then imposed
a consecutive sentence of 16 months for the evasion count (one
third the midterm sentence of two years, doubled due to the prior
strike). The court imposed, but stayed under section 654, a two-
year sentence on the criminal threat count.
We affirmed defendant’s conviction and sentence on appeal.
II. Procedural Background
On July 7, 2022, defendant filed a petition asking the trial
court to strike his four one-year prison priors under the recently
enacted Senate Bill 483. On July 26, 2022, the trial court denied
the petition because the bill provided that any relief must be
initiated by the California Department of Corrections and
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Rehabilitation (the Department), and the Department had yet to
find defendant eligible for resentencing under that bill.
Later in 2022, however, the Department advised the trial
court that defendant was eligible for relief.
On December 6, 2022, the trial court asked a public
defender “to step in on a moment’s notice” and represent
defendant for a resentencing hearing. After the public defender
“waiv[ed] [his] client’s appearance,” the court resentenced
defendant to a total sentence of 40 years and eight months by
striking the four one-year prior prison term enhancements. The
court explained why it would not exercise its newfound discretion
to strike some of the enhancements and explained why the facts
of the case justified a high-end sentence on the carjacking count.
Defendant filed a timely notice of appeal.4
DISCUSSION
Defendant argues that the trial court committed reversible
error in conducting the December 2022 resentencing hearing in
his absence and without a proper waiver. The People agree, and
so do we.
A defendant has a constitutional and statutory right to be
present at a full resentencing hearing, including one generated
by section 1172.75. (People v. Concepcion (2008) 45 Cal.4th 77,
81-82; People v. Nieves (2021) 11 Cal.5th 404, 508 (Nieves); People
v. Montgomery (2024) 100 Cal.App.5th 768, 773, review granted
May 29, 2024, S284662; People v. Santos (2024) 100 Cal.App.5th
666, 677 (Santos); People v. Velasco (2023) 97 Cal.App.5th 663,
4 Defendant initially appealed the denial of his petition, and
subsequently asked for permission to appeal the resentencing
order once he learned of it. We issued an order deeming the late-
filed notice of appeal to be timely.
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673 (Velasco); People v. Monroe (2022) 85 Cal.App.5th 393, 402;
People v. Cutting (2019) 42 Cal.App.5th 344, 347-348 (Cutting).)
A defendant may waive his right to be present, but such a waiver
is valid only if it is “voluntary, knowing and intelligent.” (People
v. Davis (2005) 36 Cal.4th 510, 531.) Where, as here, the waiver
is communicated through defense counsel (rather than personally
by the defendant), “there must be some evidence” in the record
“that [the] defendant understood the right [to be present that] he
was waiving and the consequences of doing so.” (Id. at p. 532.)
The record in this case reveals no evidence that defendant
understood his right to be present, that he was waiving that
right, or that he understood the consequences of doing so. All we
have is defense counsel’s representation that he “waiv[ed] his
client’s appearance.” That is not enough.
We must therefore ask whether this error was harmless.
The weight of precedent indicates that a defendant’s total
absence from a resentencing hearing absent a proper waiver
“implicate[s]” the federal constitutional right to be present and
hence must be presumed prejudicial unless the People can show
it was harmless beyond a reasonable doubt under Chapman v.
California (1968) 386 U.S. 18. (Velasco, supra, 97 Cal.App.5th at
p. 674; Santos, supra, 100 Cal.App.5th at pp. 677-678; People v.
Quan (2023) 96 Cal.App.5th 524, 536; People v. Basler (2022) 80
Cal.App.5th 46, 59; Cutting, supra, 42 Cal.App.5th at pp. 348-
349.) Here, the People make no effort on appeal to shoulder that
burden. Nor can we conclude on this record that defendant’s
absence was harmless because, if present, defendant could have
“‘advocate[d] for [his] position.’” (Cutting, at p. 350 [so holding];
Basler, at p. 59 [same]; cf. Santos, at p. 678 [defendant’s improper
absence harmless beyond a reasonable doubt because defendant
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ineligible for relief sought]; Nieves, supra, 11 Cal.5th at pp. 508-
509 [defendant’s improper absence at restitution hearing
harmless beyond a reasonable doubt because defendant “would
have added” no “significant information about her inability to pay
beyond that presented by defense counsel”].)
We do not mean to suggest what sentence the trial court
should impose on remand.5
DISPOSITION
The order is reversed, and the matter remanded for the
trial court to conduct a full resentencing hearing in accordance
with section 1172.75 with defendant and his counsel present
(unless there is a valid waiver of defendant’s appearance).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
5 In light of our disposition, we have no occasion to address
the parties’ argument that the trial court’s ad hoc and last-
minute appointment of “stand-in” counsel deprived defendant of
his right to counsel.
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