Filed 8/18/26 P. v. Percy CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B348480
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. XSCTA010601)
v.
DARIN PERCY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Carol J. Najera, Judge. Affirmed.
Jennifer Peabody and Olivia Meme, under
appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
__________________________
Darin Percy appeals the trial court’s postjudgment order
following a full resentencing hearing pursuant to Penal Code1
section 1172.75. Appointed counsel has filed a brief under the
authority of People v. Delgadillo (2022) 14 Cal.5th 216
(Delgadillo), requesting that this court permit Percy to file a
supplemental brief as required by Delgadillo, and also requesting
that we conduct an independent review of the record. Percy has
filed a supplemental brief. Having reviewed Percy’s arguments,
we affirm the trial court’s order.
In 1992, the jury found Percy guilty of conspiracy to commit
robbery (§§ 182 & 211, count 1), five counts of second degree
robbery (§ 211, counts 2, 4, 6. 9, & 10), four counts of assault with
a firearm (§ 245, subd. (a)(2), counts 3, 5, 7, & 12), one count of
murder (§ 187, subd. (a), count 8), and one count of willful,
deliberate, premeditated attempted murder (§§ 664 & 187, count
11). As to counts 2 through 12, the jury found true the allegation
that a principle was armed with a firearm. (Former § 12022,
subd. (a)(1).) The trial court found true the allegation that Percy
had served two prior prison terms and had not remained free of
custody for the five years following his incarceration. (§ 667.5,
subd. (b).)
The trial court sentenced Percy to 25 years to life, plus a
determinate term of 15 years four months, comprised as follows:
25 years to life in count 8, plus the upper term of nine years in
count 11 and one year for the firearm enhancement associated
with count 11, plus one year four months in count 2 (one-third of
the middle term), one year each on counts 4 and 6 (one-third of
the middle term), plus one year each for the prior prison term
1 All further statutory references are to the Penal Code.
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enhancements imposed pursuant to section 667.5, subdivision (b).
The trial court stayed the sentences in counts 1, 3, 5, 7, 9, 10, and
12 pursuant to section 654, and stayed the enhancements in
counts 2, 4, and 6.
Sometime prior to May 19, 2023, the California
Department of Corrections and Rehabilitations (CDCR)
forwarded to the superior court a petition for resentencing
pursuant to Senate Bill No. 483 (2021–2022 Reg. Sess.), Senate
Bill No. 136 (2019–2020 Reg. Sess.), and section 1172.75.2 The
trial court recalled the sentence, appointed counsel, and
conducted a full resentencing hearing.
At the resentencing hearing, defense counsel and the
prosecutor agreed to a disposition decreasing Percy’s determinate
sentence by 10 years four months, which the trial court accepted.
The court resentenced Percy to 25 years to life in count 8, plus a
consecutive lower term of five years in count 11. The court
stayed the enhancement in count 11. The court imposed and
stayed the sentences in counts 1, 2, 3, 4, 5, 6, 7, 9, 10, and 12
pursuant to section 654, and stayed the enhancements in counts
2, 4, and 6. The court struck the two one-year prior prison term
enhancements imposed pursuant to section 667.5, subdivision (b).
Percy timely appealed. We appointed counsel. Appointed
counsel filed a brief pursuant to Delgadillo, supra, 14 Cal.5th
216, setting forth the proceedings, raising no issues, and
requesting that we follow the procedures outlined in Delgadillo
and permit Percy to file a supplemental brief raising any issues
2 The petition from the CDCR is not contained in the
record. The court’s minute order dated May 19, 2023, states that
the court is in receipt of the petition.
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he wishes the Court to consider. On June 22, 2026, we advised
Percy that he had 30 days to submit any contentions or issues he
wished for us to consider. Percy filed a six-page handwritten
brief arguing that: (1) his appeal should not be subject to the
procedures set forth in Delgadillo; (2) he was deprived of a full
resentencing; and (3) he did not waive his right to be physically
present at the resentencing hearing.
DISCUSSION
1. Legal Principles
Previously, section 667.5, subdivision (b) required the
imposition of a one-year enhancement for each true finding of a
separate prior prison or county jail term the defendant had
served, unless the defendant remained free of custody for at least
five years. (§ 667.5, former subd. (b); People v. Escobedo (2023)
95 Cal.App.5th 440, 445 (Escobedo).) However, with the
enactment of Senate Bill No. 136, the Legislature amended
subdivision (b) of section 667.5 to impose a one-year enhancement
only for each prior term served for a conviction of a sexually
violent offense. (Stats. 2019, ch. 590, § 1; People v. Burgess
(2022) 86 Cal.App.5th 375, 380 (Burgess).) By adding section
1171.13 (effective Jan. 1, 2022), the Legislature made the change
3 Section 1171.1 was later amended through Senate Bill
No. 483, and renumbered as section 1172.75. (Stats. 2022, ch. 58,
§ 12.)
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retroactive, declaring that “[a]ny sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of
[s]ection 667.5, except for any enhancement imposed for a prior
conviction for a sexually violent offense . . . is legally invalid.”
(Former § 1171.1, subd. (a), added by Stats. 2021, ch. 728, § 3,
now § 1172.75, subd. (a); Burgess, at p. 380; Escobedo, at p. 445.)
Section 1172.75 further established “a mechanism to
provide affected defendants a remedy for those legally invalid
enhancements.” (Burgess, supra, 86 Cal.App.5th at p. 380.) This
procedure requires the CDCR to identify any eligible inmates,
and upon verifying that the judgment includes a now-invalid
prior prison term enhancement, the superior court is obligated to
resentence those individuals in accordance with a defined
schedule. (§ 1172.75, subds. (b) & (c); Burgess, at pp. 380–381.)
“Resentencing pursuant to [] section [1172.75] shall result in a
lesser sentence than the one originally imposed as a result of the
elimination of the repealed enhancement, unless the court finds
by clear and convincing evidence that imposing a lesser sentence
would endanger public safety.” (§ 1172.75, subd. (d)(1).)
2. Analysis
We reject Percy’s contention that the procedures set forth
in Delgadillo do not apply to his appeal. Because the instant
appeal is not from his conviction, Percy is not entitled to our
independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436, or its federal constitutional counterpart,
Anders v. California (1967) 386 U.S. 738. (Delgadillo, supra, 14
Cal.5th at p. 226 [“the procedures set out in Anders and Wende do
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not apply to an appeal from the denial of postconviction relief”];
People v. Kelly (2006) 40 Cal.4th 106, 119 [independent judicial
review mandated by Anders applies only to first appeal as of
right]; see also Pennsylvania v. Finley (1987) 481 U.S. 551, 559.)
This court is instead required to address the contentions Percy
raises in his supplemental brief. (Delgadillo, supra, 14 Cal.5th at
p. 232 [“the Court of Appeal is required to evaluate the specific
arguments presented in [the supplemental] brief and to issue a
written opinion”].)
Percy’s contention that he did not receive a full
resentencing is belied by the record. The trial court held a
hearing and reduced his sentence by 10 years and four months,
staying all but two of the terms imposed in 12 counts of which he
was convicted in addition to striking the two now-invalid prior
prison term enhancements.
Finally, to the extent that Percy’s constitutional or
statutory right to be physically present at his resentencing
hearing was violated, any error was harmless under both the
federal and state standards of prejudice.4 “Violations of the state
4 Section 1172.75, subdivision (e) permits the court to
conduct a hearing remotely through use of remote technology if
the defendant agrees. The record on appeal reflects that Percy
appeared via Webex in a prior hearing on July 10, 2024. On
August 9, 2024, Percy attempted to appear for the resentencing
hearing via Webex, but was unable to do so due to technical
difficulties. The court continued the hearing to October 18, 2024,
and ordered counsel to submit a new Webex order for the court to
sign, however nothing in the record confirms whether counsel
complied with the court’s order. On October 18, 2024, Percy
appeared at the resentencing hearing via Webex. The court
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right to be present are reviewed under the [People v.] Watson
[(1956) 46 Cal.2d 818, 836 (Watson)] reasonable probability
standard: the matter is reversible only if it is reasonably probable
the result would have been more favorable to the defendant
absent the error.” (People v. Whitmore (2022) 80 Cal.App.5th
116, 127.) “A criminal defendant has a due process right to be
present in the courtroom only to the extent his absence would
thwart the fairness of the hearing.” (Id. at p. 125.) We review
constitutional violations of the right to personally appear under
the harmless beyond a reasonable doubt standard articulated in
Chapman v. California (1967) 386 U.S. 18, 23 (Chapman). (Id. at
p. 127.)
In this case, Percy received a sentence that was the product
of his counsel’s negotiations with the prosecutor and was
approved by the court. Counsel made a tactical decision to reach
a resolution with the prosecution likely in the belief that doing so
was the best way to achieve the most favorable sentence for
Percy, and indeed it resulted in a reduction of Percy’s sentence by
ten years four months, despite the fact that Percy was convicted
of 12 felony counts, including murder and attempted murder.
Percy was present via Webex. He confirmed that he could see
and hear the proceedings, so it is clear that he had knowledge of
the sentence that counsel negotiated on his behalf. Percy did not
object to the sentence or ask to speak with counsel about the
sentence before it was pronounced. We therefore conclude
beyond a reasonable doubt that the fairness of the proceeding
asked Percy if he could see the proceedings, and Percy indicated
that he could. At no point did Percy indicate that he wished to
appear in person.
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was not impacted by the fact that Percy appeared remotely
rather than in person, and that it is not reasonably probable that
Percy would have obtained a better result had he appeared in
person. (See Chapman, supra, 386 U.S. at p. 23, and Watson,
supra, 46 Cal.2d at p. 836.)
We affirm the trial court’s order.
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED.
MOOR, J.
WE CONCUR:
HOFFSTADT, P. J.
BAKER, J.
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