Filed 8/11/26 P. v. Gonzalez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G065016
v. (Super. Ct. No. INF1901843)
VICENTE GARCIA GONZALEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Riverside
County, Dean Benjamini, Judge. Reversed and remanded with instructions.
Elizabeth Campbell, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for
Plaintiff and Appellant.
* * *
Defendant Vicente Garcia Gonzalez contends that his
constitutional and statutory right to be present at critical stages of the
prosecution was violated by the trial court’s resentencing him in his absence
without an explicit and informed waiver of his presence. The Attorney
General concedes that Gonzalez’s presence at resentencing was not validly
waived but argues the error was harmless. On the record before us, we
cannot conclude beyond a reasonable doubt that any error was harmless. We
therefore reverse and remand to the trial court for resentencing in accordance
with Gonzalez’s constitutional right to be present.1
FACTS
A. Factual Background2
“Jane Doe was born in 2005. She grew up in a home with her
younger brother and their mother (Mother). When Jane Doe was about five
years old, Gonzalez, who was Mother’s boyfriend, moved into their home.
Although Gonzalez is not the biological father of Jane Doe or her younger
brother, she viewed Gonzalez as her stepfather or a ‘second father.’
“Gonzalez and Mother slept in the main bedroom, and Jane Doe
and her younger brother slept in the same bed in the other bedroom.
1 We grant Gonzalez’s request for judicial notice of the appellate
record from his prior appeal in People v. Gonzalez (G063481). (Evid. Code,
§§ 451, subd. (a), 452, subd. (d), 459, subd. (a).)
2 The following statement of facts is from this court’s opinion in
Gonzalez’s previous appeal in People v. Gonzalez (Sept. 20, 2024, G063481)
[nonpub. opn.].
2
Gonzalez worked evening hours at his job and typically arrived home from
work around 1:00 a.m.
“Gonzalez started molesting Jane Doe when she was seven or
eight years old. Gonzalez would enter Jane Doe's bedroom after coming home
from work and touch her chest, buttocks, vagina, and ‘every part of her body’
while she laid in bed. He did this on a daily basis. When Gonzalez started
molesting Jane Doe, she was so young she believed it was a ‘monster,’ not
Gonzalez, who was touching her. After she turned nine years old, she realized
it was Gonzalez who had been touching her because she saw his face.
“Once Jane Doe understood what Gonzalez was doing to her, she
started to ‘fight back’ by moving around in bed and covering herself, kicking
her legs, pushing him away, or screaming. When Jane Doe pushed Gonzalez
away, he would stop touching her, but then would ‘come back.’ Kicking would
make Gonzalez stop, but moving around in bed would only cause him to
pause. When Jane Doe would ask Gonzalez to ‘[l]eave [her] alone,’ he would
stay quiet. Despite Jane Doe’s efforts to make Gonzalez stop touching her, he
continued to molest her.
“Jane Doe was scared every time Gonzalez touched her. She felt
as though she were trapped in a hole and did not know what to do. She did
not tell anyone about what Gonzalez was doing because she did not think
anyone would believe her. She did not know to whom to turn. Jane Doe felt
‘alone in this world’ and ‘trapped’ and wanted to ‘just give up [her] life.’
“Gonzalez continued to molest Jane Doe on a regular basis until
she was 14 years old. The day before he went to jail, he gave Jane Doe a
letter in which he apologized to her for touching her. On the day Gonzalez
gave Jane Doe the letter, he spoke with her and asked her to forgive him for
touching her. He asked her not to tell anyone about his actions because he
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was providing for the family. Gonzalez then told Mother that he had been
inappropriately touching Jane Doe. Mother went to Jane Doe and asked her
to tell her the truth about what Gonzalez had done. Jane Doe confirmed that
Gonzalez had been molesting her. Mother was in shock and immediately
called the police.
“A police officer arrived later that afternoon. Mother told the
officer Gonzalez had molested Jane Doe. That evening, Gonzalez drove
himself to the police station, where he was interviewed. During the interview,
which was video recorded, Gonzalez admitted he had repeatedly touched
Jane Doe’s vagina over her clothing, at night, beginning when she was 10
years old and ending about two months before the interview. Gonzalez said
he would sometimes move Jane Doe’s hand away to touch her and that Jane
Doe would move him away or kick him. He acknowledged he had given Jane
Doe a letter asking her to forgive him for what he had done to her and to not
tell anyone.
“A few days later, Jane Doe was forensically interviewed at a
children’s center. During the interview, which was video recorded, Jane Doe
said that Gonzalez had ‘touched’ or ‘grab[bed]’ her ‘boobs,’ ‘butt,’ and vagina,
over her clothes, at night, starting when she was about seven or eight years
old and continuing until about a month before the interview. She said she
thought it was a ‘creature’ touching her at night until she was around
12 years old and saw Gonzalez’s face. Jane Doe said that while in middle
school, she understood what Gonzalez was doing, she began to move around
in the bed and cover herself to try to stop Gonzalez from touching her.
Gonzalez would uncover Jane Done and resume touching her.
“Gonzalez was arrested after Jane Doe’s interview. During
another video recorded interview, Gonzalez estimated he had touched Jane
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Doe’s vagina at least 150 times, and her breasts ‘maybe’ once over her
clothes, during a long period of time, starting when she was nine or 10 years
old. Gonzalez said it ‘felt good’ to touch Jane Doe. Gonzalez said he had asked
Jane Doe to forgive him. Although Gonzalez had told Jane Doe she had ‘the
will’ to decide for herself whether to tell anyone, he also told her that if she
did tell anyone, he would go to jail for many years and her younger
siblings ‘needed us.’” (People v. Gonzalez, supra, G063481.)
B. Procedural History
Gonzalez was convicted of six counts of committing forcible lewd
conduct on a child under 14 years of age (Pen. Code,3 § 288, subd. (b)(1);
counts 1–6) and one count of committing a lewd act on a child 14 or 15 years
of age (§ 288, subd. (c)(1); count 7). The trial court sentenced Gonzalez to a
total term of 30 years, eight months in state prison, consisting of five years
each on counts 1 through 6 and eight months on count 7.
On Gonzalez’s first appeal, this court affirmed the judgment with
a modification and remand. The court found insufficient evidence that
Gonzalez used force or duress to commit the acts alleged in count 1. The court
also struck the court operations assessment (§ 1465.8, subd. (a)(1)) and the
criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) and
modified the verdict on count 1 to the lesser included offense of section 288,
subdivision (a). The court remanded for the “sole purposes of resentencing on
count 1, imposition of those assessments, and consideration of any objection
Gonzalez makes to those assessments.” (People v. Gonzalez, supra, G063481.)
3 All further statutory references are to the Penal Code unless
otherwise indicated.
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DISCUSSION
I.
LEGAL PRINCIPLES AND STANDARD OF REVIEW
“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.” (People v. Concepcion (2008)
45 Cal.4th 77, 81, (Concepcion).) This right extends to all “‘critical stages of
the criminal prosecution’” and includes sentencing and resentencing. (People
v. Cutting (2019) 42 Cal.App.5th 344, 347–348 (Cutting).)
The right to be present may be waived. (Concepcion, supra,
45 Cal.4th at p. 82.) However, pursuant to section 977, subdivision (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. 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. (See Cutting, supra, 42 Cal.App.5th at
p. 348.)
Section 977, subdivision (b)(1), provides, “Except as provided in
subdivision (c), in all cases in which a felony is charged, the accused shall be
physically present at the arraignment, at the time of plea, during the
preliminary hearing, during those portions of the trial when evidence is
taken before the trier of fact, and at the time of the imposition of sentence.
The accused shall be physically or remotely present at all other proceedings
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unless they waive their right to be physically or remotely present, with leave
of court and with approval by defendant’s counsel.”
Section 977, subdivision (b)(2), addresses the requirements for a
valid waiver of the right to personal appearance:
“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.
“(A) 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.
“(B) 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.
“(3) The court may specifically direct the defendant, either
personally or through counsel, to be physically or remotely present at any
particular proceeding or portion thereof, including upon request of a victim,
to the extent required by Section 28 of Article I of the California Constitution.
“(4) A written waiver of the defendant’s physical or remote
presence shall be substantially in the following form:
“‘Waiver of Defendant’s Physical or Remote Presence’
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“The undersigned defendant, having been advised of their right
to be present at all stages of the proceedings, including, but not limited to,
presentation of and arguments on questions of fact and law, and to be
confronted by and cross-examine all witnesses, hereby knowingly,
intelligently, and voluntarily waives the right to be physically or remotely
present at the hearing of any motion or other proceeding in this cause. The
undersigned defendant hereby requests the court to proceed during every
absence of the defendant that the court may permit pursuant to this waiver,
and hereby agrees that their interest is represented at all times by the
presence of their attorney the same as if the defendant were physically or
remotely present in court, and further agrees that notice to their attorney
that their physical or remote presence in court on a particular day at a
particular time is required is notice to the defendant of the requirement of
their physical or remote appearance at that time and place.” (§ 977,
subd. (b)2–4.)
“When errors involving a defendant’s federal constitutional rights
are implicated, the standard set forth in Chapman v. California (1967)
386 U.S. 18 . . . 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.” (People v. Velasco, 97 Cal.App.5th 663, 674
(Velasco).)
II.
PERSONAL PRESENCE AT RESENTENCING HEARING
On the facts before us, we are unable to conclude that the error in
conducting a resentencing hearing in Gonzalez’s absence without a valid
waiver of his presence was harmless beyond a reasonable doubt.
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A. Factual Background
On December 9, 2024, the matter was heard for resentencing.
Gonzalez was not present at the resentencing hearing. Defense counsel
stated, “Since this sentencing will inure to the client’s benefit, we’re waiving
his appearance today.” Before proceeding to resentencing, the trial court
asked, “[A]s far as sentencing, are we ready for judgment, no legal cause,
waive and submit?” Defense counsel replied, “No legal cause, waive and
submit.” There is no written indication in the record that Gonzalez or his
attorney entered a valid waiver on the record pursuant to section 977,
subdivision (b)(2)(A) and (B).
The trial court then vacated Gonzalez’s conviction on count 1 and
ordered that the record reflect a conviction of section 288, subdivision (a), as a
lesser included offense. The court resentenced Gonzalez to the low term of
three years on count 1 and ordered the remaining counts to run
consecutively, for a total term of 28 years and eight months. The court also
ordered the fees under Penal Code section 1465.8 and Government Code
section 70373 stricken.
Defense counsel requested waiver of the restitution fines, but the
court declined, choosing instead to impose the minimum amount of $300. The
following exchange then occurred:
“[Defense counsel]: Oh, Your Honor, I think we had a—we had an
unrecorded chambers conversation where I asked the Court to consider Count
1 running concurrent as the law allows with this. I believe the Court was not
willing to do that based on it’s—the fact that the Court presided over this
trial—
“The Court: Correct.
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“[Defense counsel]:—and the facts were not such that the Court
would consider doing that.
“The Court: That’s correct. I obviously considered doing it, but
rejected the request to do it.”
B. Analysis
Gonzalez argues, and the Attorney General concedes, that there
was no valid waiver of his right to be personally present at the resentencing
hearing. Our review of the record confirms there was no valid waiver.
Defense counsel’s statement, “Since this sentencing will inure to the client’s
benefit, we’re waiving his appearance today,” does not demonstrate that
Gonzalez knowingly, intelligently, and voluntarily waived his personal
presence. Nor did defense counsel state that Gonzalez had been advised of his
right to be present, that he had waived that right, or that he agreed that
notice to defense counsel of future hearings requiring his presence was notice
to Gonzalez, as required under section 977, subdivision (b)(2)(B).
The parties disagree, however, as to whether such failure to
obtain a valid waiver was harmless error. Gonzalez cites two recent appellate
decisions, Velasco and Cutting, to support his contention that the prosecution
failed to meet its burden to demonstrate any error here was harmless beyond
a reasonable doubt. In those cases, the courts found that the error was not
harmless because, had the defendants been present at their sentencing
hearings, they may have “‘offered mitigating factors that arose after [their]
original sentencing; [they] may have expressed remorse; [or] [they] may have
made a plea for leniency.’” (Velasco, supra, 97 Cal.App.5th at p. 674; Cutting,
supra, 42 Cal.App.5th at p. 350.)
As in Velasco and Cutting, because Gonzalez was not physically
present at resentencing, he was unable to present any of these types of
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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. (See 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’”].)
The Attorney General contends that, because the trial court
indicated it was not inclined to run the sentence in count 1 concurrently with
the sentences in the other counts, there was nothing Gonzalez could have
done to affect the outcome if he had been present and therefore, any error
was harmless. However, this mere assertion does not satisfy the Attorney
General’s substantial burden to demonstrate that Gonzalez’s absence was
harmless beyond any reasonable doubt. We agree with the courts in Velasco
and Cutting that Gonzalez could have raised arguments or presented new
circumstances that might have affected the court’s resentencing decision if he
had exercised his constitutional right to be present. Accordingly, we cannot
conclude that the error was harmless beyond a reasonable doubt. We
therefore reverse and remand the matter for resentencing.
DISPOSITION
We reverse Gonzalez’s sentence and remand to the trial court for
resentencing. The court is ordered to conduct a new resentencing hearing at
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which Gonzalez is personally present unless he waives his right to be present
in accordance with the provisions of section 977, subdivision (b).
SCHWARM, J.*
WE CONCUR:
MOTOIKE, P. J.
GOODING, J.
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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