Filed 9/3/26 P. v. Parks CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B339940
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. PA086935)
MICHAEL PARKS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Hilleri G. Merritt, Judge. Affirmed.
Susan Morrow Maxwell, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Stephen D. Svetich, Deputy Attorney
General, for Plaintiff and Respondent.
We consider whether we must reverse defendant and
appellant Michael Parks’s (defendant’s) criminal judgment,
entered at a Penal Code section 1172.75 resentencing hearing,
because defendant—who executed a written waiver of the right to
be present at further proceedings—was not present at
resentencing.1
I. BACKGROUND
A. Defendant’s Conviction, Sentencing, and Direct
Appeal
In 2017, a jury found defendant guilty of six counts of
assault with a deadly weapon (a car) in violation of section 245,
subdivision (a)(1). The jury also found true allegations that
defendant sustained two prior convictions for serious or violent
felonies within the meaning of the Three Strikes Law (§§ 667,
subds. (b)-(i) & 1170.12, subds. (a)-(d)), a prior serious felony
conviction within the meaning of section 667, subdivision (a)(1),
and served seven qualifying prior prison terms within the
meaning of section 667.5, subdivision (b). The trial court
sentenced defendant to 162 years to life in prison, comprised of
six terms of 25 years to life pursuant to the Three Strikes Law,
one five-year enhancement pursuant to section 667, subdivision
(a)(1), and seven one-year terms pursuant to section 667.5,
subdivision (b).
Defendant appealed and a prior panel of this court affirmed
the trial court’s judgment. (People v. Parks (Mar. 13, 2019,
B285967) [nonpub. opn.].) This court held, among other things,
1
Undesignated statutory references that follow are to the
Penal Code.
2
that substantial evidence supported the trial court’s ruling that
defendant voluntarily absented himself from many trial
proceedings. (Ibid.)
B. Resentencing Proceedings
In January 2023, defendant’s case was designated for
resentencing review under section 1172.75 (a statute invalidating
most prior prison term enhancements and requiring resentencing
for affected defendants) and counsel was appointed for defendant.
In April 2023, defense counsel filed a “Waiver of Defendant’s
Personal Appearance Pursuant to Penal Code Section 977(b)”
that was signed by counsel that same month and by defendant on
March 16, 2023 (the same date on which the trial court called and
continued the case at a hearing).2 Minute orders reflect the
matter was again called and continued in July and August 2023
(defendant was not present in court at either time).
2
The waiver states: “The defendant, Michael Parks, having
been advised of his 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 to cross-examine all witnesses, hereby waives the right to be
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 his
interest is represented at all times by the presence of his attorney
the same as if the defendant were personally present in court,
and further agrees that notice to defendant’s attorney that
defendant’s presence in court on a particular day at a particular
time is required is notice to the defendant of the requirement of
defendant’s appearance at that time and place.”
3
In October 2023, the trial court held the section 1172.75
resentencing hearing. The court stated on the record that
defendant was in custody “elsewhere” and his attorney was “here
on his behalf with 977(b) authority.” The court ordered
defendant’s seven one-year section 667.5, subdivision (b)
enhancements stricken by operation of section 1172.75. The
court, however, declined to make any other changes to
defendant’s prior sentence and resentenced him to 155 years to
life in prison (composed of a determinate 5-year term and an
indeterminate 150 years to life term). The court explained,
having been the judge presiding at trial, that it was convinced
defendant had demonstrated a “propensity for violence and utter
disdain for the legal process,” as well as a “callous disregard for
[the] victims in this case” when he “went after a man who was
driving with his five-year-old son.” The court remarked: “There
is not one reason for this court to exercise its discretion to get rid
of the five-year prior. It’s just not warranted.”
Before concluding the hearing, the court asked counsel for
defendant and the People if either wanted to be heard. Both
declined.
II. DISCUSSION
Defendant argues we should reverse and remand for
another resentencing hearing because he was wrongfully denied
his right to be present at the October 2023 resentencing. As we
shall explain, the argument fails because defendant
appropriately waived his right to be present.
A defendant has a constitutional and statutory right to be
present at a resentencing hearing, including one held pursuant to
section 1172.75. (People v. Concepcion (2008) 45 Cal.4th 77, 81-
4
82; People v. Nieves (2021) 11 Cal.5th 404, 508.) “As a matter of
both federal and state constitutional law, . . . 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,
italics added.) Waivers are also permitted by statute. Section
1172.75 itself provides a defendant may elect to appear remotely
at a resentencing hearing or “may waive a resentencing hearing”
entirely. (§ 1172.75, subd. (e).) The more general rules for a
defendant’s presence at criminal proceedings in section 977
require all felony defendants to be “physically present . . . at the
time of the imposition of sentence” but “physically or remotely
present at all other proceedings unless they waive their right to
be physically or remotely present, with leave of court and with
approval by defendant's counsel.” (§ 977, subd. (b)(1); see also
§ 977, subd. (c)(1)(E).) Section 977 waivers must be in writing
and the statute provides template language to be used in such
waivers. (§ 977, subd. (b)(4).3)
3
Subdivision (b)(4) specifies that waivers should be in
substantially the following form: “‘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
5
In this case, defendant signed and filed with the trial court
a waiver of presence form that waived his right to be present “at
the hearing of any motion or other proceeding in this cause.”4
Defendant argues his written waiver is invalid because “there is
no evidence [defendant] underst[ood] that he was waiving his
right to be present at the October 18, 2023, resentencing
hearing,” which in his view means he “did not ‘knowingly and
intelligently’ waive[ ] his right to be present . . . .”
Defendant’s argument is unconvincing. At the time
defendant executed the written waiver, there were no trial court
proceedings remaining to be held other than his section 1172.75
resentencing and his waiver extended to “the hearing of any
motion” or other proceeding. That is enough to establish a
knowing and intelligent waiver of the right to be present for the
section 1172.75 resentencing.
Pointing to the provisions of section 977, defendant also
argues his waiver was invalid because his attorney made no
argument at resentencing and yet defendant agreed in the
written waiver that his interest would be represented by the
presence of his attorney the same as if defendant himself were in
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.’”
4
Comparing defendant’s written waiver to the statute, the
words “knowingly, intelligently, and voluntarily” between
“hereby” and “waives” in section 977 are omitted, as are
references in section 977 to remote presence.
6
court; in defendant’s view, that means his interests were not
represented the same as if he had been present and this
establishes he did not validly waive his appearance. The
argument is unconvincing, for if defendant’s position were
correct, that would mean the validity of a waiver would turn not
on what defendant knew and understood at the time of the
waiver (the proper inquiry) but on what might occur only later—
perhaps months later, as here. Moreover, defense counsel only
declined to argue after hearing the trial court’s comments on the
record indicating a rather firm inclination to deny further
reductions to defendant’s sentence, and defense counsel was not
required to make a futile argument to the contrary merely to
preserve the validity of defendant’s earlier-approved waiver of his
right to be present.5
5
In light of our holding, it is unnecessary to decide whether,
as the Attorney General argues, the asserted errors were
forfeited or invited.
7
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM (D.), J.
8