Filed 11/2/26 P. v. DeLeon CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089652
Plaintiff and Respondent,
(Super. Ct. No. BF106430A)
v.
ISREAL DELEON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Michael G. Bush,
Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Detjen, Acting P. J., DeSantos, J. and Harrell, J.
INTRODUCTION
Appellant and defendant Isreal DeLeon (defendant) was convicted of attempted
murder of one victim and premeditated attempted murder of a second victim. Firearm
and prior prison term enhancements were also found true. He was sentenced to 11 years
for attempted murder and the prior prison term enhancements, plus consecutive terms of
life with the possibility of parole for premeditated attempted murder. He received
50 years to life for the two firearm enhancements.
In 2025, the trial court recalled defendant’s sentence pursuant to Penal Code1
section 1172.75 and dismissed the now-invalid prior prison term enhancements. The
court conducted a full resentencing hearing and imposed the midterm of seven years for
attempted murder, but declined to dismiss the enhancements or further reduce
defendant’s sentence. Instead, the court again sentenced him to life in prison with the
possibility of parole for premeditated attempted murder and 50 years to life for the
two firearm enhancements.
On appeal from the resentencing order, appellate counsel filed a brief that
summarized the facts with citations to the record, raised no issues, and asked this court to
independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) In response
to this court’s notice, defendant filed a supplemental letter brief and raised several issues.
We address his issues and affirm.
1 All further statutory citations are to the Penal Code.
2.
FACTS2
“On May 12, 2004, defendant was a passenger in a car with five other occupants—
Rachel [M.] (the driver), Gina [G.], Sandra [D.] (defendant’s sister), Anthony [G.], and
Elinerto [V.] Defendant sat in the back seat with Anthony Garcia and Elinerto Vela.
That night, defendant and the other passengers were driving around looking for
defendant’s brother, Ezekial DeLeon.
“While they were looking for Ezekial, one of the males sitting in the back seat
ordered Rachel to stop the car [when they were on Highway 178 near Mesa Marin, about
10 miles east of Bakersfield. After she pulled the car over to the side of the road, all
three of the men in the back seat got out of the car. Defendant allegedly told Elinerto and
Anthony to ‘post up,’ which meant for them to look out for other people who might be in
the area. Thereafter, defendant pointed a gun at Anthony and asked him where Ezekial
was located. Anthony told defendant he did not know, and defendant then shot him in the
face. The gunshot blew a hole through the top of Anthony’s mouth and created a one and
three-quarter-inch scar on his face.
“Rachel heard a single gunshot and noticed that defendant was the only one of the
three males to get back into the car. She then looked in her side-view mirror and saw
one of the men lying on the ground. Rachel drove away and dropped the passengers off.
“After he was shot, Anthony was able to walk to a nearby apartment complex,
where he summoned help. Richard Dossey, a police officer with the City of Bakersfield,
responded to Anthony’s call for help. He told Dossey that he had been shot by a
2 After notice to the parties and without objection, we take judicial notice of the
records before this court, including our nonpublished opinion, from defendant’s appeal in
(People v. DeLeon (Apr. 17, 2006, F046747) [nonpub. opn.] (DeLeon I) from which the
following facts are taken.
3.
Hispanic man who had the nickname of ‘Dopey.’ Anthony described two tattoos that
Dopey had on his body, and defendant stipulated that he had these tattoos. At the
hospital, Dossey showed Anthony a photograph of defendant, and Anthony identified
defendant as the person who shot him.” (DeLeon I, supra, F046747.)
At 3:00 a.m. on May 13, 2004, Chris Ward, a police officer with the City of
Bakersfield, responded to a call involving a shooting. Ward found Elinerto on the side of
Kern Canyon Road. Elinerto had a gunshot wound to the top of his forehead, he was
covered in blood, and he was “babbling incoherently.” Elinerto was unable to respond to
Ward’s questioning.
“Christina [M.], the fiancée of defendant’s brother Vincent, testified [for the
defense] that she was with defendant on the night in question. They met at 11:30 p.m.
and were together until 3:10 [a.m.] or 3:15 a.m.” (DeLeon I, supra, F046747.)
PROCEDURAL BACKGROUND
Defendant was charged with counts 1 and 2, the attempted murders of,
respectively, Elinerto and Anthony (§§ 664, 187, subd. (a).) As to both counts, it was
alleged the offenses were committed willfully, deliberately, and with premeditation
(§§ 189, 664, subd. (a)); that defendant personally and intentionally discharged a firearm
that caused great bodily injury or death (§ 12022.53, subd. (d)); and he had prior prison
term enhancements (§ 667.5, subd. (b)).
On September 17, 2004, jurors convicted defendant of counts 1 and 2, attempted
murder, and found true both attached firearm enhancements. The jury found the
premeditation allegation true as to count 2, the attempted murder of Anthony. The jury
did not make a finding on the premeditation allegation as to count 1, the attempted
murder of Elinerto. The trial court found the prior prison term enhancements true.
On November 12, 2004, the trial court found circumstances in aggravation and
sentenced defendant to the upper term of nine years for count 1, the attempted murder of
Elinerto, plus 25 years to life for the section 12022.53, subdivision (d) firearm
4.
enhancement and one year for the prior prison term enhancement; and as to count 2, life
with the possibility of parole for the premeditated attempted murder of Anthony, plus
25 years to life for the firearm enhancement and one year for the prior prison term
enhancement, consecutive to the sentence imposed for count 1.
This court affirmed the judgment on direct appeal.
SECTION 1172.75 PETITION FOR RESENTENCING
On July 25, 2023, the public defender’s office, representing defendant, filed a
petition for recall and resentencing pursuant to section 1172.75. Defendant asked the
trial court to strike the prior prison term enhancements because they were now legally
invalid and to conduct a full resentencing hearing.
Defendant also asked that the trial court reduce the sentences for the
two section 12022.53, subdivision (d) firearm enhancements from 25 years to life to
determinate terms of 20 years under subdivision (c). He asked the court to impose the
midterm of seven years for count 1, attempted murder, instead of the upper term of
nine years. The public defender advised they did not have access to defendant’s file.
On the same date, the trial court set a September hearing date, ordered a
supplemental probation report, and notified the prosecutor about defendant’s
section 1172.75 petition.
Continuances and First Substitution of Counsel3
On September 14, 2023, because the public defender had declared a conflict in
January 2023, the trial court appointed Roger Lampkin as conflict counsel and continued
3 In defendant’s supplemental letter brief on appeal, he raises several issues about
the trial court’s grant of multiple continuances, his absences from status hearings, and
erroneous notations in minute orders that his pending petition was for resentencing under
section 1172.6. We review the procedural history of the status hearings and
continuances, and address defendant’s contentions below.
5.
the matter. Defendant was not present at this hearing because he was “medically
unavailable” and in “quarantine.”
On November 16, 2023, defendant was present in court with Lampkin. Because
Judge Bush, defendant’s trial judge, was unavailable, the case was trailed for a hearing on
the supplemental probation report.
On November 30, 2023, Judge Bush convened a status hearing. Lampkin stated
defendant was in local custody but had not been transported. Counsel was directed to
contact defendant and advise the court if defendant wished to return to state prison.
Lampkin said he believed he could appear in defendant’s absence under section 977, and
requested a continuance because he needed to obtain more information about the case.4
The court granted the continuance and set the resentencing hearing for February 2, 2024.
On December 7, 2023, defense counsel advised the trial court that defendant
wished to return to state prison and counsel would prepare a removal order for the
resentencing hearing that remained set for February 2, 2024.5
Second Substitution of Counsel
On February 2, 2024, Lampkin advised the trial court that defendant had not been
transported and could not appear on video conference. Lampkin declared a conflict and
the court granted his motion to be relieved. The court appointed new counsel and
continued the matter.
On February 14, 2024, the trial court convened another status hearing and stated
that defendant refused to appear on video conference. Steven Meister accepted
4 A defendant may waive his or her statutory right to be present in a felony matter
pursuant to the provisions of section 977. In issue III, we address defendant’s argument
that he never gave counsel authorization under section 977 to waive his presence.
5 The minute orders for the court’s status hearings in September 2023 stated the
hearings were for defendant’s section 1172.75 petition for resentencing. As discussed in
issue IV, the minute orders for November and December 2023, had the erroneous
notations that the status hearings were for a section “1172.6” resentencing hearing.
6.
appointment to represent defendant, stated he expected to obtain the file soon, and
requested a status hearing in May 2024. The court continued the matter.
Thereafter, from May to November 2024, the trial court conducted status hearings
and either implicitly or explicitly found good cause to grant additional continuance
motions made by both parties. At each hearing, Meister appeared for defendant, who was
not present.
On November 14, 2024, the trial court convened another status hearing.
Defendant was not present. Meister stated that he had reviewed defendant’s file, and was
prepared to file a brief and schedule the resentencing hearing. The court set the
resentencing hearing for January 29, 2025, and asked counsel if defendant wanted to
appear personally or by video conference. Counsel said he would find out and inform the
court.
Defendant’s Section 1172.75 Resentencing Brief
On December 11, 2024, Meister, on behalf of defendant, filed the section 1172.75
resentencing brief.
In the brief, defendant argued he was entitled to a full resentencing hearing under
section 1172.75 because his aggregate sentence included prior prison term enhancements
that were now invalid. Defendant requested the trial court dismiss the invalid prior
prison term enhancements, strike all other enhancements, and impose concurrent lower or
middle determinate terms for counts 1 and 2. Defendant asserted the trial court was
required by section 1172.75 to consider certain postconviction factors, including his
disciplinary and rehabilitation records in prison, and resentence him based on
ameliorative amendments to relevant statutes. His brief was supported by a list of
rehabilitative programs he completed.
7.
On January 28, 2025, the trial court granted a motion by both parties to reset the
resentencing hearing from January 29 to April 10, 2025.6
SECTION 1172.75 RESENTENCING HEARING
On April 10, 2025, Judge Bush convened the resentencing hearing. Meister
represented defendant. Defendant initially appeared by video conference until there was
a problem with the video. At that point, the trial court asked defendant if he wanted the
hearing to continue and appear only by telephone. Defendant agreed to proceed with the
hearing by listening via telephone without video from within the courtroom.
Meister advised defendant that his wife and sister were in the courtroom.
The trial court stated that it was conducting a resentencing hearing under
section “1172.6,” and that defendant was entitled to be fully resentenced because his
sentence included prior prison term enhancements that were now invalid.7
The trial court further stated that while it presided over defendant’s jury trial, it
had a limited memory of the case and had reviewed defendant’s resentencing brief and
the probation report. The prosecutor stated he did not file a written brief but he was
prepared to argue the case.
Defense Counsel’s Arguments
Meister argued defendant’s brief showed he “very dedicatedly” engaged in
rehabilitative opportunities and he had done “quite well” over the years in self-help
groups including Criminal and Gang Members Anonymous, Narcotics Anonymous, and
Alcoholics Anonymous. He had different jobs in the dining hall and kitchen, and as a
6 Again, as discussed in issue IV, the minute orders for the trial court’s status
hearings held from February to November 2024, and on January 28, 2025, erroneously
stated the hearings were for defendant’s “section 1172.6” resentencing.
7 As discussed in issue IV, while the trial court initially and erroneously cited
section 1172.6, it conducted the entirety of the resentencing hearing consistent with the
provisions of section 1172.75.
8.
porter, and he participated in adult basic education, clothing distribution, and prerelease
educational classes.
Meister acknowledged defendant also had “a disciplinary history that concerns
me,” but “once you balance that” with his rehabilitative work, “the violence and the
discipline alone is no longer the measure of the man, and that’s why I think he is entitled
to some … relief.”
As Meister made these arguments, defendant interrupted and personally addressed
the trial court. Defendant asked if the court received two letters of remorse that he wrote.
Defendant explained he sent the letters to his wife, so she could forward the letters to his
attorney and the court. After a brief discussion, defendant’s wife stated she had the
letters on her phone. The court asked defendant’s wife to transmit the documents, she did
so, and the court and both parties acknowledged receipt.
The Prosecutor’s Arguments and Defendant’s Interruptions
The prosecutor began his argument by stating that while defendant was assigned to
various jobs and groups in prison, he was also “unassigned” from some of these
assignments because of disciplinary issues. The prosecutor cited defendant’s criminal
history and introduced his “rap” sheet without objection. His record began in 1990 as a
juvenile, then advanced to possession of a sawed-off rifle in 1993, another gun
possession in 1997, and a conviction for gang participation in 2001. The prosecutor
argued that defendant was 27 years old when he committed the attempted murders, and
he was not “a wayward youth” or within the youthful parole provisions.
The prosecutor argued the facts of the two attempted murders were “absolutely
incredible” and showed defendant was a danger to the community
“As a grown man, [defendant] induced two individuals and I believe
a third female and went with them out to the mouth of the canyon, a remote
area of the county, and then shot both of them in the head and left them for
dead.… [I]t is absolutely amazing that this was not a double homicide as
opposed to just attempted murder.”
9.
Defendant interrupted, addressed the trial court, and said, “[n]one of my history is
serious[,]” and “[n]othing I’ve been locked up for is violent.” The court advised
defendant that he would have the opportunity to speak later in the proceedings.
The prosecutor argued the trial court would have to “exercise absolutely
extraordinary discretion” to strike the premeditation finding and firearm enhancements,
and the facts did not support the exercise of such discretion. The prosecutor asserted
defendant was not a model inmate and, while he participated in some programs, “that
doesn’t even begin to undercut the serious threat he poses to the community and the
absolute serious nature of this offense.” The prosecutor again stated that it was
“incredible” this case did not involve two homicides since defendant shot both victims in
the head and left them for dead in a remote location.
Defendant again interrupted and said:
“It doesn’t matter. They’re not dead, though. You know what I
mean? Nobody died.”
Both the trial court and defense counsel advised defendant to stop talking, and
defendant said he would.
The prosecutor continued his argument by citing defendant’s statements, that “ ‘it
doesn’t matter, that they’re not dead,’ ” and asserted defendant’s criminal behavior was
“abhorrent,” and the trial court should impose the indeterminate sentences for
premeditated attempted murder and the firearm enhancements.
Defendant once again interrupted and said:
“You can’t even do that by law. What the [f***] you talking about,
man? The f[***]? Who are you, man? Like I’m—this is a life sentence
that I’m unjustly serving, man. Like, you guys are really sitting right here
and telling me that? Come on, man. This … this affects me, man.”
The trial court advised defendant that his wife was shaking her head in the
courtroom. The court added that it thought defendant was “digging a hole.” Defendant
10.
said he was just trying to speak for himself. Defendant’s wife spoke from the audience
and said, “I just would like him to be calm.”
The prosecutor concluded that under section “1172.[7]5,” the trial court should
reimpose the life sentences because defendant presented a danger to the community.
Defendant’s Additional Statements
Meister submitted the matter, and advised defendant that if he wanted to speak
again, he should only address his rehabilitation efforts and not the facts of the underlying
offenses.
Defendant addressed the trial court and said he would respect the court’s
sentencing decision as long as it read his letters. He continued:
“But … I’ve been here 21 years, Judge, and I feel like I’m—I accept
responsibility for my action and … I’m not a kid no more, and I can say
today that I’m going to get out there and commit no crime or do anything
like this ever again. Like this ain’t me no more.
“I mean, the reason why I spoke up was because he’s trying to make
me look bad for these 21 years for this crime already, and I feel like that’s
enough time. I deserve to be out there with my family. You know what I
mean? And … like I said, as long as you read the letter[s], I’m cool with
that, but I’m going to tell you this. … I’ll never come back to prison ever
again if you let me out.
“I want to go home to my family today. You hear me? Like I said,
Judge … I just wanted to speak up for myself because he was trying to
make it seem like I’m a bad person. That was 21 years ago. You know
what I mean? Regardless of … what I’ve been doing in here, I’m going to
right now; right?”
The Trial Court’s Resentencing Order
The trial court stated it reviewed defendant’s hearing brief and his letters, but it
could not overlook “that these two [victims] were shot in a very horrendous manner.”
The court stated that before defendant made his statements at the hearing, it had decided
to reduce the determinate term for count 1, attempted murder, from the upper term of
11.
nine years to the midterm of seven years. The court was rethinking the decision after
hearing defendant’s statements.
The trial court, however, decided it would still impose the midterm of seven years
for count 1, and that was the only modification it would make to defendant’s aggregate
sentence. The court stated, when defendant committed the attempted murders, he had
been released from prison and on parole for only four days. The court recognized there
were mitigating factors under section 1385, subdivision (c), that the enhancements would
result in defendant’s sentence exceeding 20 years and multiple enhancements were
alleged in a single case, but there were also two different victims.
The trial court stated it had discretion to strike or reduce the enhancements but
declined to do so. Defendant introduced evidence that he was doing “some good things
in prison” and the court encouraged him to continue to do so because the law was “ever
changing.”
The trial court dismissed the two prior prison term enhancements. As to count 1,
attempted murder, the court imposed the midterm of seven years, plus 25 years to life for
the section 12022.53, subdivision (d) firearm enhancement. As to count 2, premeditated
attempted murder, the court again imposed consecutive terms of life with the possibility
of parole, with a minimum eligible parole date of seven years, plus 25 years to life for the
firearm enhancement.8
Appellate Filings and Orders
On April 10, 2025, defendant filed a timely notice of appeal from the trial court’s
resentencing order under section “1172.75.”
8 The April 10, 2025 minute order stated the trial court conducted a section 1172.75
resentencing hearing.
12.
On June 9, 2026, appellate counsel filed an opening brief pursuant to Wende. On
the same date, this court sent the appropriate notice to defendant that he could file a
supplemental letter brief raising appellate issues within 30 days.
On July 2, 2026, defendant, acting in propria persona, filed a request with this
court for an extension of time to file his supplemental letter brief. He also requested this
court augment the appellate record to include (1) any materials filed in the trial court
pursuant to section 1172.6; and (2) any materials showing that his defense attorney had
authority under section 977 to waive defendant’s presence at the trial court’s hearings.
On July 13, 2026, this court filed an order that granted defendant’s request for an
extension of time of 30 days to file his supplemental letter brief, and denied his requests
to augment the record: “In addition to being untimely, ‘neither the party himself nor
another attorney can be recognized’ to make such a request before the court.”
On August 5, 2026, defendant filed a supplemental letter brief raising several
issues on appeal, which we address below.
DISCUSSION
I. Recall and Resentencing Under Section 1172.75
We begin with the trial court’s jurisdiction to recall defendant’s sentence, and the
requirement for the court to conduct a full resentencing based on applicable sentencing
statutes that were amended after he was originally sentenced in 2004.
A. Prior Prison Term Enhancements
“In … section 1172.75, the Legislature declared that, aside from enhancements
imposed for sexually violent offenses, ‘[a]ny sentence enhancement that was imposed
prior to January 1, 2020, pursuant to’ … section 667.5, subdivision (b) ‘is legally
invalid.’ [Citation.] In the same provision, the Legislature established a mechanism for
resentencing individuals ‘currently serving a term for a judgment that includes’ such an
enhancement.” (People v. Rhodius (2025) 17 Cal.5th 1050, 1053–1054.)
13.
“Subdivision (b) of section 1172.75 directs the Secretary of the Department of
Corrections and Rehabilitation (CDCR) and the correctional administrator of each county
to ‘identify those persons in their custody currently serving a term for a judgment that
includes an enhancement described in subdivision (a) and … provide the name of each
person … to the sentencing court that imposed the enhancement.’ ” (People v. Burgess
(2022) 86 Cal.App.5th 375, 380.) “After the trial court receives from … CDCR and
county correctional administrator the information included in subdivision (b) of
section 1172.75, ‘the court shall review the judgment and verify that the current judgment
includes a sentencing enhancement described in subdivision (a),’ and if so, ‘recall the
sentence and resentence the defendant.’ ” (Burgess, at p. 380; § 1172.75, subd. (c)(2).)
“By its plain terms, section 1172.75 requires a full resentencing, not merely that
the trial court strike the newly ‘invalid’ enhancements.” (People v. Monroe (2022) 85
Cal.App.5th 393, 402.) “The court shall apply the sentencing rules of the Judicial
Council and 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.” (§ 1172.75, subd. (d)(2).)
“The court may consider postconviction factors, including, but not limited to, the
disciplinary record and record of rehabilitation of the defendant while incarcerated,
evidence that reflects whether age, time served, and diminished physical condition, if
any, have reduced the defendant’s risk for future violence, and evidence that reflects that
circumstances have changed since the original sentencing so that continued incarceration
is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3).)
Section 1172.75, subdivision (d) “vests the superior court with broad discretion
based on an inherently factual inquiry” in resentencing a defendant, and we review the
resentencing order for an abuse of that discretion. (People v. Garcia (2024) 101
Cal.App.5th 848, 856–857.)
14.
B. Firearm Enhancements
Defendant’s aggregate sentence included two terms of 25 years to life attached to
counts 1 and 2, for the personal and intentional discharge of a firearm that caused great
bodily injury or death to the victims, pursuant to section 12022.53, subdivision (d).
“Before January 1, 2018, section 12022.53 prohibited courts from striking its
enhancements. Former subdivision (h) of section 12022.53 provided: ‘Notwithstanding
[s]ection 1385 or any other provision of law, the court shall not strike an allegation under
this section or a finding bringing a person within the provisions of this section.’
[Citation.] Thus, if a section 12022.53 enhancement was alleged and found true, its
imposition was mandatory.” (People v. Tirado (2022) 12 Cal.5th 688, 695 (Tirado).)
“In 2017, the Legislature enacted Senate Bill No. 620 (2017–2018 Reg. Sess.) …,
amending section 12022.53, [subdivision] (h) to remove this prohibition. [Citation.]
Section 12022.53[, subdivision] (h) now provides that a ‘court may, in the interest of
justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.’ ” (Tirado, supra, 12
Cal.5th at p. 696.)
The trial court thus has discretion to strike a section 12022.53 enhancement and
impose a lesser included, uncharged section 12022.53 enhancement when the facts
supporting the lesser enhancement were alleged and found true by the jury. (Tirado,
supra, 12 Cal.5th at p. 692.) The court also has the discretion “to impose a lesser
included, uncharged enhancement authorized elsewhere in the Penal Code—that is,
outside of section 12022.53,” if supported by facts that were alleged and found true.
(People v. McDavid (2024) 15 Cal.5th 1015, 1021, 1030; Tirado, at p. 697.)
We review the trial court’s determination whether to dismiss a firearm
enhancement or to impose a lesser included, uncharged enhancement for an abuse of
discretion. (People v. Gonzalez (2024) 103 Cal.App.5th 215, 225.) We will not disturb
the court’s ruling unless the court exercised its discretion in an arbitrary, capricious, or
15.
patently absurd manner that results in a manifest miscarriage of justice. (People v.
Williams (2013) 58 Cal.4th 197, 270–271.)
C. Section 1385
Defendant’s hearing brief requested that the trial court impose an aggregate
determinate sentence and dismiss all enhancements pursuant to section 1385, which
would include the jury’s true finding on the premeditation allegation on count 2.
“Prior to January 1, 2022, section 1385 provided trial courts with discretion to
dismiss sentencing enhancements in the interest of justice. The statute did not provide
direction as to how courts should exercise that discretion. In October 2021 the
Legislature passed and the Governor signed Senate Bill No. 81 (2021–2022 Reg. Sess.)
…, which, effective January 1, 2022, amended section 1385 to provide guidance
regarding the exercise of discretion in dismissing sentencing enhancements,” and added
subdivision (c). (People v. Anderson (2023) 88 Cal.App.5th 233, 238.)
Section 1385, subdivision (c) now provides in relevant part: “(1) Notwithstanding
any other law, the court shall dismiss an enhancement if it is in the furtherance of justice
to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
[¶] (2) In exercising its discretion under this subdivision, the court shall consider and
afford great weight to evidence offered by the defendant to prove that any of the
mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of
one or more of these circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the enhancement would endanger
public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of
the enhancement would result in physical injury or other serious danger to others.”
(§ 1385, subd. (c)(1)–(2).)
The listed mitigating circumstances include: “Multiple enhancements are alleged
in a single case. In this instance, all enhancements beyond a single enhancement shall be
dismissed,” and “The application of an enhancement could result in a sentence of over
16.
20 years. In this instance, the enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(B),
(C).)
“Section 1385[, subdivision] (c) does not mean that, whenever a listed mitigating
circumstance is present, the trial court must dismiss all enhancements unless it finds
dismissal would endanger public safety. [Our] Supreme Court has explained that, even
without ‘a finding that dismissal would endanger public safety,’ the trial ‘court retains the
discretion to impose or dismiss enhancements provided that it assigns significant value’
to the presence of any listed mitigating circumstances.” (People v. Bravo (2025) 107
Cal.App.5th 1144, 1157, citing People v. Walker (2024) 16 Cal.5th 1024, 1029.)
The trial court’s discretion to dismiss enhancements under section 1385, however,
does not extend to the jury’s finding that an attempted murder was committed willfully,
deliberately, and with premeditation, because a section 664, subdivision (a) premeditation
finding is not an enhancement but states an alternate penalty provision for attempted
murder. (People v. Serrano (2024) 100 Cal.App.5th 1324, 1337–1340.)
D. Analysis
At the April 10, 2025 resentencing hearing, the trial court acknowledged
defendant’s aggregate sentence included two years for prior prison term enhancements
that were now invalid under section 1172.75. The court complied with requirements of
section 1172.75 and recalled defendant’s sentence, dismissed the prior prison term
enhancements, and conducted a full resentencing hearing on all aspects of defendant’s
aggregate sentence.
In his hearing brief, defendant argued the trial court had to consider his
rehabilitation efforts in prison and letters of remorse, dismiss all enhancements, and
resentence him to concurrent determinate terms for counts 1 and 2, and impose lower or
midterms for both counts.
At the conclusion of the resentencing hearing, the trial court decided not to
reimpose the upper term of nine years for count 1, attempted murder, and instead
17.
imposed the midterm of seven years. As to count 2, however, the court did not have
discretion under section 1385, subdivision (c) to dismiss the premeditation finding
attached to that attempted murder conviction, and the court was still required to impose
life with the possibility of parole.
The trial court recognized there were mitigating factors because multiple
enhancements were alleged and the application of an enhancement would result in a
sentence of more than 20 years. (§ 1385, subd. (c)(2)(B), (C).) While the court found
defendant had taken certain classes and was assigned prison jobs, it was concerned about
defendant’s disciplinary record and the violent facts of the crimes.
The trial court declined to exercise its discretion to dismiss or impose a lesser term
for the two firearm enhancements because it could not overlook the facts of the crimes,
“that these two [victims] were shot in a very horrendous manner,” defendant had been
released on parole just four days before he committed the attempted murders, and
defendant’s statements at the resentencing hearing about his crimes, that “ ‘[i]t doesn’t
matter. They’re not dead, though. You know what I mean? Nobody died.’ ”
As a result of the amendments to section 1385, “the presence of an enumerated
mitigating circumstance will generally result in the dismissal of an enhancement unless
the sentencing court finds substantial, credible evidence of countervailing factors that
‘may nonetheless neutralize even the great weight of the mitigating circumstance, such
that dismissal of the enhancement is not in furtherance of justice.’ ” (People v. Walker,
supra, 16 Cal.5th at p. 1029, italics added.) The trial court did not abuse its discretion
and its resentencing order is supported by the record.
II. The Trial Court’s Grant of Continuances
In his supplemental letter brief, defendant asserts this case “had a mind of its own”
because his resentencing hearing was repeatedly delayed, it was finally held in
April 2025, and it occurred nearly two years after the public defender filed his
section 1172.75 petition in July 2023.
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A trial court has broad discretion to determine whether good cause exists to grant a
continuance, and that determination is reviewed for an abuse of discretion. (People v.
Wilson (2024) 16 Cal.5th 874, 939.) A continuance for defense counsel to prepare to
represent defendant constitutes good cause. (Id. at pp. 939–940.) A defendant’s illness
preventing an appearance also constitutes good cause for a continuance. (People v. Avila
(2004) 117 Cal.App.4th 771, 777.) In addition, a court does not abuse its discretion when
it proceeds with a hearing when the defendant refuses to appear. (People v. Kirvin (2014)
231 Cal.App.4th 1507, 1516; People v. Pigage (2003) 112 Cal.App.4th 1359, 1369.)
The trial court did not abuse its discretion and had good cause to continue this
matter for specific reasons, including that the public defender declared a conflict and new
counsel needed time to prepare, defendant was sick and in quarantine and unable to
appear by video conference, the judge who presided over defendant’s jury trial was
unavailable, defendant refused to appear at another hearing, his second counsel declared a
conflict, the court appointed a third counsel to represent defendant, new counsel needed
time to prepare, and both parties requested and obtained continuances because of
calendar conflicts.
Defendant’s counsel filed the section 1172.75 hearing brief on December 11,
2024, the trial court granted the parties’ motion to reset the resentencing hearing from
January 29 to April 10, 2025, and the resentencing hearing was held on April 10, 2025.
As for the two-year delay, such a delay for a postjudgment resentencing hearing is
not unreasonable under the circumstances, considering that “[i]n a death penalty case, a
two-year delay in proceeding to trial ‘is not inordinately long.’ ” (People v. Wilson,
supra, 16 Cal.5th at p. 940.)
III. Defendant’s Absence From the Status Hearings
In his supplemental letter brief, defendant argues that when the trial court
conducted status hearings and continued the matter, defendant was absent in violation of
his federal and state constitutional rights, and there is no evidence any of his attorneys
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had authority under section 977 to waive his presence at those hearings. Defendant
argues his defense attorneys were prejudicially ineffective for waiving his presence
without proper authorization, and the court’s resentencing order must be reversed because
of these prejudicial errors.
A. Constitutional and Statutory Rights to Presence
“ ‘A criminal defendant accused of a felony has the constitutional right to be
present at every critical stage of the trial.…’ [Citations.] ‘A critical stage of the trial is
one in which a defendant’s “ ‘absence might frustrate the fairness of the proceedings’
[citation], or ‘whenever his presence has a relation, reasonably substantial, to the fullness
of his opportunity to defend against the charge’ [citation].” ’ ” (People v. Oyler (2025)
17 Cal.5th 756, 795.)
A criminal defendant’s right to be personally present at trial is also guaranteed “by
section 15 of article I of the California Constitution and by sections 977 and 1043.”
(People v. Concepcion (2008) 45 Cal.4th 77, 81 (Concepcion).)
“Sentencing and resentencing hearings are critical stages in a criminal proceeding.
[Citations.] Courts have consistently held that a defendant has a right to be present at
proceedings that are ‘akin to a plenary sentencing hearing.’ [Citation.] This includes
proceedings necessary to determine factual questions bearing on the defendant’s
eligibility for resentencing. [¶] The defendant’s presence is required when the court
must make fact-bound determinations as it exercises its sentencing discretion, such as
considering youth-related mitigating factors [citation], or after a change in law regarding
an enhancement the court initially imposed.” (People v. Quan (2023) 96 Cal.App.5th
524, 532–533.)
“As a matter of both federal and state constitutional law, however, a defendant
may validly waive his or her right to be present during a critical stage of the trial,
provided the waiver is knowing, intelligent, and voluntary.” (People v. Cunningham
(2015) 61 Cal.4th 609, 633.) “At a minimum, there must be some evidence that the
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defendant understood the right he was waiving and the consequences of doing so.”
(People v. Davis (2005) 36 Cal.4th 510, 532; People v. Quan, supra, 96 Cal.App.5th at
pp. 534–535.)9
The defendant may also waive his or her statutory right to be present in a felony
matter. (§§ 1043, subd. (d); 977, subd. (b).) “The waiver of a defendant’s right to be
physically or remotely present may be in writing and filed with the court or, with the
court’s consent, may be entered personally by the defendant or by the defendant’s
counsel of record.” (§§ 977, subd. (b)(2); 1043, subd. (d).) “A defendant’s personal
waiver of the right to be physically or remotely present shall be on the record and state
that the defendant has been advised of the right to be physically or remotely present for
the hearing at issue and agrees that notice to the attorney that the defendant’s physical or
remote presence in court at a future date and time is required is notice to the defendant of
that requirement.” (§ 977, subd. (b)(2)(A).) “A waiver of the defendant’s physical or
remote presence may be entered by counsel, after counsel has stated on the record that the
defendant has been advised of the right to be physically or remotely present for the
hearing at issue, has waived that right, and agrees that notice to the attorney that the
defendant’s physical or remote presence in court at a future date and time is required is
notice to the defendant of that requirement.” (§ 977, subd. (b)(2)(B).)
However, a defendant does not have the right to be present at every hearing in the
course of a felony criminal proceeding. (Concepcion, supra, 45 Cal.4th at p. 81.)
“Neither the state nor the federal Constitution, nor the statutory requirements of
sections 977 and 1043, require the defendant’s personal appearance at proceedings where
his presence bears no reasonable, substantial relation to his opportunity to defend the
charges against him.” (People v. Butler (2009) 46 Cal.4th 847, 861; People v. Delgado
(2017) 2 Cal.5th 544, 569.)
9 A defendant’s waiver of personal presence has been implied in cases of disruptive
behavior. (Concepcion, supra, 45 Cal.4th at p. 82.)
21.
“[I]t is well established that a represented defendant has no constitutional or
statutory right to be present to address purely legal questions or where his or her
‘presence would not contribute to the fairness of the proceeding.’ ” (People v. Fedalizo
(2016) 246 Cal.App.4th 98, 109.) The defendant “ ‘has no right to be present [at] routine
procedural discussions that could not affect the outcome of the trial.’ ” (People v. Oyler,
supra, 17 Cal.5th at p. 795; People v. Perry (2006) 38 Cal.4th 302, 314.) “[A] defendant
may ordinarily be excluded from conferences on questions of law, even if those questions
are critical to the outcome of the case, because the defendant’s presence would not
contribute to the fairness of the proceeding.” (Perry, at p. 312.)
When the defendant asserts a violation of the federal constitutional right to be
present at a critical stage, the error is evaluated pursuant to Chapman v. California (1967)
386 U.S. 18, 23, as to whether it was harmless beyond a reasonable doubt. (People v.
Martinez (2024) 106 Cal.App.5th 892, 917, fn. 21.)
If a defendant argues his absence violated his statutory right to presence under
sections 977 and 1043, he has the burden to show it is reasonably probable the result of
the court’s proceedings would have been more favorable absent the error. (People v.
Martinez, supra, 106 Cal.App.5th at p. 917, fn. 21; People v. Cunningham, supra, 61
Cal.4th at p. 635.)
B. Analysis
The trial court’s section 1172.75 resentencing hearing that was held on April 10,
2025, was a critical stage of the proceedings, defendant had the constitutional and
statutory right to be present, and he appeared and participated in that hearing.
However, defendant argues that his absence at the trial court’s status hearings,
held between the filing of his petition in 2023 and the resentencing hearing in April 2025,
violated his constitutional and statutory rights to appear, there is no evidence any of his
defense attorneys obtained the appropriate waivers required by section 977, and these
errors were prejudicial and require reversal of the court’s resentencing orders.
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At a November 2023 status hearing, defense counsel referred to making an
appearance under section 977, but there is no evidence defendant personally waived his
right to be present as required by statute.
Assuming noncompliance with section 977, however, we find defendant’s absence
from the status hearings was harmless beyond a reasonable doubt and was not prejudicial
under Chapman. The status hearings were not critical stages. The trial court did not
address the merits of defendant’s petition for resentencing. Defendant fails to explain
how he could have effectively assisted counsel at status hearings to determine the parties’
schedules, the trial judge’s own calendar, the conflicts declared by the two prior
attorneys, and whether defense counsel needed more time to obtain defendant’s file and
prepare for the resentencing hearing.
Even assuming defendant had the right to appear at the status hearings, his absence
from the trial court’s routine procedural discussions with the parties did not affect the
eventual outcome of the resentencing hearing and was not prejudicial under any standard.
(People v. Perry, supra, 38 Cal.4th at p. 312.)
IV. The Nature of Defendant’s Resentencing Hearing
Defendant next asserts in his letter brief that it is unclear whether the trial court
conducted the resentencing hearing under section 1172.75 or section 1172.6.
Defendant’s argument is based on the minute orders from the court’s status hearings held
in 2023, 2024, and 2025, that it was continuing the section “1172.6” resentencing
hearing. Defendant also relies on the court’s statement when it convened the
resentencing hearing on April 10, 2025, that the matter was for resentencing under
section “1172.6.”
Defendant correctly notes there are differences between resentencing hearings
conducted under sections 1172.75 and 1172.6, particularly since a section 1172.6 matter
involves the “complete vacatur” of a conviction. He asserts that the trial court’s
“handling of this matter was so far outside the bounds of [the] statute, one is left but
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dazed and confused.… It appears at least half the court [sic] was under impression a
complete vacatur had occurred.”
Defendant declares that it is not clear whether the trial court conducted the
April 10, 2025 resentencing hearing under the provisions of section 1172.6 or
section 1172.75. While defendant concedes the actual hearing “resembles the latter,” he
asserts the citations in the minute orders to section 1172.6, and the court’s statement at
the beginning of the resentencing hearing about section 1172.6, show that “the judicial
officer was entirely unsure of the limits of his discretion” when defendant was
resentenced.
Defendant further argues that if the trial court believed it was conducting a hearing
under section 1172.6, then the validity of his attempted murder convictions should have
been litigated, and the prosecution failed to prove beyond a reasonable doubt that he was
still guilty of attempted murder after the amendments to the felony-murder rule and the
natural and probable consequences doctrine.
A. Section 1172.6
Section 1172.6 authorizes a defendant convicted of felony murder, murder under
the natural and probable consequences doctrine, attempted murder under the natural and
probable consequences doctrine, or manslaughter to petition the trial court to vacate the
conviction and resentence the defendant on any remaining counts if he or she could not
now be convicted of murder or attempted murder because of the legislative changes to the
definitions of murder. (People v. Emanuel (2025) 17 Cal.5th 867, 880; People v.
Arellano (2024) 16 Cal.5th 457, 468–469; People v. Curiel (2023) 15 Cal.5th 433, 449–
450; People v. Concha (2009) 47 Cal.4th 653, 661–662, fn. 2; People v. Coley (2022) 77
Cal.App.5th 539, 548.)
A section 1172.6 hearing is “a continuation of the underlying criminal proceeding”
(Gomez v. Superior Court (2024) 100 Cal.App.5th 778, 787), and the issue before the
trial court is whether the “petitioner could not presently be convicted of murder or
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attempted murder” after the statutory amendments to the felony-murder rule and the
natural and probable consequences doctrine. (§ 1172.6, subd. (a)(3); People v. Clements
(2022) 75 Cal.App.5th 276, 294.)
However, where the record of conviction establishes defendant was convicted of
attempted murder as the actual perpetrator, defendant is ineligible for relief under
section 1172.6 as a matter of law. (People v. Anaya (2025) 117 Cal.App.5th 615, 621;
People v. Muhammad (2024) 107 Cal.App.5th 268, 282.)
B. Section 1172.75
As explained in issue I above, section 1172.75 addresses a different subject, and
provides for the trial court to recall and fully resentence a defendant if his or her
aggregate sentence includes a prior prison term enhancement that is no longer valid, and
the court must consider relevant statutory amendments when conducting the
resentencing. (People v. Burgess, supra, 86 Cal.App.5th at p. 380; People v. Monroe,
supra, 85 Cal.App.5th at p. 402.)
C. Analysis
Conflicts between the reporter’s and clerk’s transcripts are generally presumed to
be clerical in nature and are resolved in favor of the reporter’s transcript unless the
particular circumstances dictate otherwise. (People v. Cleveland (2004) 32 Cal.4th 704,
768; People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Smith (1983) 33 Cal.3d
596, 599; People v. Gonzalez (2012) 210 Cal.App.4th 724, 744.)
This matter began when the public defender’s office, on defendant’s behalf, filed a
petition for recall and resentencing in July 2023. The petition was expressly based on
section 1172.75, and requested the trial court dismiss the prior prison term enhancements
that were now invalid, conduct a full resentencing hearing, and dismiss all other
enhancements so that defendant received an aggregate determinate sentence. The petition
did not argue that defendant was no longer guilty of premeditated attempted murder and
attempted murder under section 1172.6. The minute orders for the court’s status hearings
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in September 2023 correctly stated the hearings were for defendant’s section 1172.75
petition for resentencing.
When the trial court continued the matter in November and December 2023, the
minute orders erroneously stated the proceedings were for section “1172.6” resentencing
hearings. The court held additional status hearings and continued the matter from
February to November 2024, and the minute orders again contained erroneous notations
that the hearings were for defendant’s “section 1172.6” resentencing. When the court
granted the last continuance in January 2025, the minute order again contained the
erroneous statement about section 1172.6.
These erroneous notations on minute orders did not somehow change the nature of
defendant’s petition. Defense counsel’s hearing brief, filed on December 11, 2024, was
consistent with his petition, and exclusively addressed the provisions of section 1172.75.
Counsel argued the trial court had to dismiss the now-invalid prior prison term
enhancements, conduct a full resentencing hearing, and address each aspect of
defendant’s sentence. Counsel requested imposition of only an aggregate determinate
term. Defendant’s brief did not address section 1172.6, assert that he was no longer
guilty of the attempted murders because of amendments to the natural and probable
consequences doctrine, or claim the trial evidence showed he was not the actual
perpetrator of the attempted murders.
When the trial court convened the resentencing hearing on April 10, 2025, it
initially stated that it was conducting a resentencing hearing under section 1172.6. The
entirety of the hearing, however, clearly shows the court’s statements and questions, the
parties’ arguments, and the court’s ultimate resentencing orders were based on
section 1172.75’s provisions for recall and resentencing of each aspect of his sentence—
whether the court should dismiss the enhancements and impose an aggregate determinate
term instead of the consecutive indeterminate terms, after the amendments to
section 12022.53 and section 1385.
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The trial court never addressed any provision of section 1172.6, or whether
defendant’s convictions for attempted murder and premeditated attempted murder were
no longer valid and should be vacated after the statutory amendments to the natural and
probable consequences doctrine. The minute order for the April 10, 2025 resentencing
hearing stated the court conducted a section 1172.75 resentencing hearing.
Defendant argues even if the trial court resentenced him under section 1172.75, its
findings were not supported by any evidence that he posed a “present danger.” As
explained in issue I, however, the court did not abuse its discretion at the resentencing
hearing and its findings are supported by the record.
V. Appellate Review and Defendant’s Augmentation Requests
Finally, defendant requests in his letter brief for this court to conduct a full, fair,
and independent examination of the appellate record to determine whether the trial court
committed reversable error at the April 10, 2025 resentencing hearing. set forth above,
this court has reviewed the entirety of the record herein, addressed the issues defendant
raised in his supplemental letter brief, and he received the requested independent review.
However, defendant complains that a complete appellate review is impossible
because this court denied his request, filed in propria persona, to augment the appellate
record to include any documents to show whether defense counsel had authority under
section 977 to waive his presence at the various status hearings, or whether there were
briefing documents filed for a resentencing hearing under section 1172.6 to clarify which
type of hearing was conducted. As explained above, this court denied defendant’s
augmentation request because he was represented by counsel, the request was not made
by counsel, and it was untimely.
Defendant argues appellate counsel was prejudicially ineffective for failing to
timely file the appropriate augmentation motion to support the issues that he has raised in
his supplemental letter brief about absence of section 977 authorization and whether a
section 1172.6 brief was filed.
27.
As explained in issues III and IV, the absence of evidence that defendant waived
his presence under section 977 was not prejudicial under any standard. In addition, the
trial court clearly conducted the resentencing hearing under the provisions of
section 1172.75 and not section 1172.6, and this court’s denial of defendant’s
augmentation request was not prejudicial and did not prevent review of the issues raised
in defendant’s letter brief.
DISPOSITION
The trial court’s resentencing order of April 10, 2025, is affirmed.
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