People v. Chacon CA2/2 ( 2024 )

Filed 10/3/24 P. v. Chacon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B331700
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA081947)
v.
GASPAR CHACON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Reversed and
remanded.
Miriam K. Billington, 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, Wyatt E. Bloomfield, Supervising
Deputy Attorney General, and Christopher G. Sanchez, Deputy
Attorney General, for Plaintiff and Respondent.
******
The trial court convened a resentencing hearing for Gaspar
Chacon (defendant) in his absence based solely on defense
counsel’s representation that he had “authority” to appear on
defendant’s behalf. This was constitutional error, and this error
was not harmless beyond a reasonable doubt. We accordingly
reverse and remand for a new resentencing hearing at which
defendant is present or makes a valid waiver of his presence.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Underlying crime1
In May 2009, defendant went by the nickname “Menace.”
After hearing from a neighbor that the man renting a room from
the neighbor was late in paying his rent, defendant took it upon
himself to intimidate the man. Defendant and a friend entered
the man’s room while he was sleeping, told him he “had to pay
[his] rent, Homie,” and proceeded to rain punches on him,
ignoring the man’s cries for help. Defendant’s friend then told
the man, “You better not report this or we will come for your
daughter.” The man’s injuries to his face and scalp necessitated
five sutures and 14 staples.
B. Prosecution, conviction, sentencing and appeal
In the operative information, the People charged defendant
1 We draw these facts from our prior opinion in People v.
Chacon (Dec. 20, 2010, B222042) [non-pub opn.].
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with (1) mayhem (Pen. Code, § 203),2 (2) dissuading a witness
from reporting a crime (§ 136.1, subd. (b)(1)), and (3) assault by
means likely to product great bodily injury (§ 245, subd. (a)(1)).3
The People alleged that defendant personally inflicted great
bodily injury (§ 12022.7, subd. (a)) in committing the assault.
The People also alleged that defendant’s 1998 conviction for
robbery (§ 211) constituted a “strike” within the meaning of our
Three Strikes Law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i))
as well as a prior serious felony (§ 667, subd. (a)). The People
further alleged that defendant had suffered two prior prison
terms (§ 667.5, subd. (b)).
A jury convicted defendant of all three charges and found
true the great bodily injury allegation. In a bifurcated
proceeding, the court found that defendant had suffered the prior
“strike” conviction.
The trial court sentenced defendant to state prison for 24
years and 4 months. Specifically, the court sentenced defendant
to 23 years on the mayhem conviction, comprised of a base
sentence of 16 years (the upper term of eight years, doubled due
to the prior strike), plus five years for the prior serious felony,
plus two years for two prior prison terms. The court imposed a
consecutive 16-month sentence on the dissuading a witness
conviction, comprised of one third of the mid-term sentence of two
years, doubled due to the prior strike. The court stayed the
sentence for the assault conviction as well as the great bodily
2 All further statutory references are to the Penal Code
unless otherwise indicated.
3 The People also charged defendant with (1) attempted
robbery (§§ 211, 664), and (2) residential burglary (§ 459), but the
jury acquitted defendant of those charges.
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injury enhancement.
We affirmed defendant’s convictions.
II. Procedural Background
Because defendant was eligible to have his two one-year
enhancements for serving a prior prison term stricken under
section 1172.75, the trial court in November 2022 appointed
counsel for defendant and set the matter for a status conference.
Defendant filed a memorandum seeking a full resentencing to
include (1) striking the two one-year prior prison term
enhancements, (2) striking the five-year enhancement for
suffering a prior serious felony, and (3) imposing a low- or mid-
term sentence on the mayhem count under Senate Bill 567.
The court held a hearing on May 16, 2023. Defendant was
not present. At the outset of the hearing, the court asked defense
counsel, “My understanding is [that] you have [Penal Code
section] 977(b) authority?”; counsel responded, “I do.” The court
then indicated it had read the “entire file” and reviewed
defendant’s prison record. The court indicated its tentative
intent to strike the two, one-year prior prison term enhancements
as required by section 1172.75, but to deny defendant’s further
requests to reduce the sentence. When the People asked the
court to dismiss the five-year serious felony enhancement “in the
interest of justice,” the court denied the request, explaining that
because the defendant “had a violent past,” because “the
underlying crime was of a very violent nature,” and because
defendant “hasn’t gone a single year of custody time without an
incident,” that “it’s actually in the interest of justice to make sure
[defendant] stays in [custody] for as long as possible.” The court
then imposed a sentence that excised the two one-year prior
prison term enhancements, yielding a total sentence of 22 years
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and four months.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court committed reversible
error in conducting the May 2023 resentencing hearing in his
absence and without a proper waiver. We agree.
A defendant has a constitutional and statutory right to be
present at a 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.
Santos (2024) 100 Cal.App.5th 666, 677 (Santos); People v.
Velasco (2023) 97 Cal.App.5th 663, 673 (Velasco); 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 counsel “had 977(b)
authority.” This is not enough, as People v. Quan (2023) 96
Cal.App.5th 524, 535 (Quan) explicitly held. The People resist
this conclusion, arguing that we must “presume” that counsel’s
representation rests upon a proper waiver “[a]bsent affirmative
evidence” to the contrary. We reject this argument because it has
Davis backwards: The rule is not “a waiver is valid unless some
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evidence shows it is unknowing and unintelligent”; the rule is
that “a waiver is invalid unless some evidence shows it is
knowing and intelligent.”
We must therefore ask whether this error was harmless.
Although the People urge that the error here is purely statutory,
such that the defendant bears the burden of showing a different
result was reasonably probable had defendant been present at
the hearing under People v. Watson (1956) 46 Cal.2d 818 (cf.
People v. Poore (2022) 13 Cal.5th 266, 292 [applying Watson in
evaluating defendant’s non-compliance with purely statutory
section 977 requirement during voir dire]), 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; Quan, supra, 96
Cal.App.5th at p. 536; People v. Basler (2022) 80 Cal.App.5th 46,
59; Cutting, supra, 42 Cal.App.5th at pp. 348-349). Although the
trial court’s observation that it is “actually in the interest of
justice to make sure [defendant] stays in [custody] for as long as
possible” is a strong indication that defendant will face an uphill
climb to convince the court to reduce his sentence further, we
cannot be sure beyond a reasonable doubt that defendant might
not be able to present some additional facts that might cause the
court to reconsider, particularly given the unique situation here
where the People are asking for a further reduction in the
sentence. (Cutting, at p. 350 [defendant’s improper absence was
not harmless beyond a reasonable doubt because defendant could
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“‘advocate for [his] position’”]; Basler, at pp. 59-60 [same]; cf.
Santos, at p. 678 [defendant’s improper absence harmless beyond
a reasonable doubt because defendant 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.
Although the abstract of judgment is also erroneous for not
setting forth any custody credits, that error can be remedied upon
remand and after the resentencing hearing.
DISPOSITION
The judgment is reversed, and the matter remanded for a
new resentencing hearing where the defendant is present or
validly waives his presence.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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