Filed 10/28/26 P. v. Shidner CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E086166
v. (Super.Ct.No. SWF1500961)
WILLIAM ALEXANDER SHIDNER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.
Affirmed in part; remanded with directions in part.
William G. Holzer, 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 Felicity
Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
1
I.
INTRODUCTION
Following a resentencing hearing pursuant to Penal Code1 section 1172.75, the
trial court resentenced defendant and appellant William Alexander Shidner to the upper
term for his robbery conviction. On appeal, defendant argues the court erred in
reimposing the upper term in absence of stipulation or proof of aggravating factors in
violation of the requirements of section 1170, subdivision (b), and his Sixth Amendment
right. He also asserts the court applied an incorrect legal standard in reimposing the
upper term and that the case should be remanded because he was not present for the
resentencing hearing. Lastly, defendant contends, and the People agree, that the trial
court failed to recalculate defendant’s custody credits at resentencing and specify the
updated total in the amended abstract of judgment to reflect the period between his
original sentencing in 2016 and the resentencing hearing in 2023. We agree and will
remand the matter to the trial court for the limited purpose of calculating defendant’s
custody credits. In all other respects, we affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, defendant entered an occupied residence and committed robbery and
inflicted great bodily injury.
1 All future statutory references are to the Penal Code unless otherwise stated.
2
On December 31, 2015, an information was filed charging defendant with first
degree burglary (§§ 459, 460, subd. (a); count 1), attempted robbery (§§ 211, 664,
subd. (a); count 2), attempted murder (§§ 187, subd. (a), 664, subd. (a); count 3),
possession of a firearm (§ 29800, subd. (a)(1); count 4), and first degree robbery (§§ 211,
212.5, subd. (a); count 5). The information also alleged that as to count 1 a person other
than an accomplice was present in the residence (§ 667.5, subd. (c)(21)) and that
defendant personally used a firearm (§ 12022.5, subd. (a)); as to counts 2 and 3 that
defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (d)); and
as to count 5, defendant inflicted great bodily injury (§ 12022.7, subd. (a)).2 The
information further alleged that defendant had five prior prison term (§ 667.5, subd. (b))
convictions for attempted extortion in 2000, second degree burglary in 2002, possession
of drugs in prison or jail in 2004, attempted spousal abuse in 2009, and receiving stolen
property in 2014.
On February 16, 2016, pursuant to a negotiated plea agreement, defendant pled
guilty to count 5, admitted the great bodily injury allegation, and three prior prison term
allegations in exchange for a stipulated 15-year state prison sentence. At immediate
sentencing, the trial court imposed the agreed-upon sentence as follows: the upper term
of nine years on count 5, a consecutive three year-term for great bodily injury
enhancement, and three consecutive one-year terms for the prison priors. The remaining
charges and allegations were dismissed.
2 Count 5 and the attendant great bodily injury allegation were added by
interlineation.
3
On October 13, 2023, the trial court struck the three prison priors pursuant to
section 1172.75, which reduced defendant’s sentence to 12 years, and continued the
matter for a full resentencing hearing.
On November 5, 2024, defense counsel filed a resentencing brief, asking the trial
court to strike the upper term sentence in light of the changes to sentencing laws reflected
in section 1170, subdivision (b)(2). Defense counsel argued that defendant should be
resentenced to the lower or presumptive middle term because imposition of the upper
term is only permitted when aggravating circumstances are found true by a jury or
defendant has stipulated to the facts underlying those circumstances and neither scenario
was true here.
On December 16, 2024, the People filed their sentencing brief, arguing
defendant’s prior convictions supported the upper term sentence. The People explained
that imposition of the upper term was warranted based upon circumstances in
aggravation, defendant’s criminal history, public safety concerns, and the interests of
justice. The People noted defendant’s criminal history spanned over 30 years and that his
crimes had increased in seriousness and frequency. The People stated defendant’s
multiple prior convictions, which had escalated from misdemeanors to felonies, and his
probation and parole violations, were circumstances in aggravation shown by the record
of conviction that did not have to be proven to a jury. The People also noted that
defendant had accumulated multiple rules violations while in prison, as recently as 2023,
the majority of which involved violence and fighting. The People also urged the court
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not to exercise its discretion to strike the great bodily injury enhancement upon
resentencing under the circumstances of the offense, considering that defendant had shot
the victim in the leg during a home invasion robbery in the middle of the night.
The full resentencing hearing pursuant to section 1172.75 was held on May 5,
2025 in defendant’s absence. At that time, the trial court stated, “counsel, I believe your
client previously waived his right to be present. I believe that you could appear on his
behalf; is that correct?” Defense counsel replied, “That is correct.” After the court
explained it had read and considered the parties resentencing briefs, both defense counsel
and the prosecutor submitted to the court’s ruling on their briefing. The court denied
defendant’s motion to impose the lower or middle term and ordered the sentence to
“remain as ordered on October 9, 2023.” The court concluded defendant’s prison prior
convictions, which were pled and proved at the time of original sentencing, established
defendant’s “crimes are numerous or of increasing severity.”
The court explained as follows: “With regards to this matter, the Court notes that
pursuant to 1172.75, this Court has discretion to consider any changes in sentencing laws
that were enacted subsequent to the date that judgment was imposed on the defendant.
The Court also has the discretion to consider post-conviction factors that suggest that the
current sentence is no longer in the interest of the justice. [¶] In this matter, at the time
of the original sentencing, there were no aggravating factors that were specifically
imposed or pled and proven to that would impose or would support the Court’s
imposition of the upper term. However, I do note that in this case, the one year priors
5
were pled and proven at that time. [¶] And even though the changes in the law mean that
the terms under 667.5(b) have been stricken, the aggravating factor that the defendant’s
crimes are numerous or of increasing severity based on the fact that he has previously
been sentenced to prison three times, that aggravating factor was pled and proven at the
time of the imposition of the sentence. [¶] In this case, based on the severity of the
nature of the charge itself, the fact that this is a home invasion or . . . robbery 211 of a
home at night and the nature of the commission of the offense here in that the defendant
was armed in the commission of that offense and coupled with the fact that there’s three
prior sentences to state prison, . . . [¶] [t]he Court does not change the sentence. The
Court finds that the aggravated sentence is appropriate based on the fact of the
defendant’s prior criminal history being numerous and of increasing seriousness in this
matter, and the Court will leave the upper term of nine years imposed as to the offense.
The Court does not exercise its discretion to modify the sentence in any other way, and
the sentence will remain then [at 12 years].”
Defendant timely appealed.
III.
DISCUSSION
A. Resentence of Upper Term
Defendant argues the trial court erred in reimposing the upper term on his robbery
conviction in violation of the requirements of section 1170, subdivision (b), and his Sixth
Amendment right to a jury trial because he neither stipulated to circumstances in
6
aggravation to justify that term, nor did a jury or court find such circumstances true
beyond a reasonable doubt. (See § 1170, subd. (b)(1), (2).) He also asserts the court
applied an incorrect legal standard when it concluded defendant had admitted three prior
felonies, which established factors of numerous convictions or convictions of increasing
severity. The People argue defendant agreed to a specified sentence as part of his plea
agreement and thus should be estopped from raising his claim. The People also rely on
section 1172.75, subdivision (d)(4), as creating a specific exception to the rule that a
defendant has a Sixth Amendment right to have a jury decide whether aggravating factors
support an upper term sentence. As we explain, where defendant was originally
sentenced to the upper term, pursuant to section1172.75, subdivision (d)(4), additional
factfinding is not required to reimpose the upper term sentence.
We review a trial court’s sentencing decisions in a section 1172.75 resentencing
proceeding for abuse of discretion. (People v. Lua (2026) 121 Cal.App.5th 472, 476
(Lua); People v. Mathis (2025) 111 Cal.App.5th 359, 366, review granted Aug. 13, 2025,
S291628 (Mathis); People v. Garcia (2024) 101 Cal.App.5th 848, 855-856.) However,
where the appeal from a resentencing order “raises questions of law, our review is de
novo.” (Mathis, at p. 366; see People v. Braden (2023) 14 Cal.5th 791, 804 [“ ‘The
interpretation of a statute presents a question of law that this court reviews de novo.’ ”].)
“Our goal in reviewing statutory language is to determine the legislative intent of the
statute. [Citation.] ‘Because the statutory language is generally the most reliable
indicator of that intent, we look first at the words themselves, giving them their usual and
7
ordinary meaning.’ [Citation.] When the statutory language is unambiguous, its plain
meaning controls.” (People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 466
(Brannon-Thompson).)
Effective January 1, 2022, new section 1172.75 declares that certain one-year
sentence enhancements that were imposed prior to January 1, 2020, pursuant to former
section 667.5, subdivision (b) are legally invalid, and provides a mechanism for
resentencing individuals serving judgments that include one or more of those
enhancements. (§ 1172.75, subds. (a)-(c).)
Pursuant to section 1172.75, subdivision (b), the Secretary of the Department of
Corrections and Rehabilitation and the administrators for each county jail “shall identify
those persons in their custody currently serving a term for a judgment that includes an
enhancement described in subdivision (a),” and provide certain information about those
individuals to the sentencing court. Upon receiving this information, the sentencing court
“shall review the judgment and verify that the current judgment includes a sentencing
enhancement described in subdivision (a). If the court determines that the current
judgment includes an enhancement described in subdivision (a), the court shall recall the
sentence and resentence the defendant.” (§ 1172.75, subd. (c).)
Section 1172.75, subdivision (d), specifies that the resentencing “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.” (Id., subd. (d)(1).) In
8
addition, the resentencing court shall consider “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.” (Id., subd. (d)(2).) Courts may consider
“postconviction factors” such as the defendant’s record of discipline and/or rehabilitation
while incarcerated, evidence that age, time served, and/or diminished physical condition
have reduced the defendant’s risk for future violence, and evidence that circumstances
have changed such that continued incarceration is no longer in the interest of justice. (Id.,
subd. (d)(3).)
Current section 1172.75, subdivision (d)(4) addresses situations in which the prior
sentencing court imposed the upper term and provides: “Unless the court originally
imposed the upper term, the court may not impose a sentence exceeding the middle
term . . . .” (Italics added.)
Also effective January 1, 2022, the Legislature amended section 1170,
subdivision (b) to make the middle term the presumptive determinate sentence. (People
v. Lynch (2024) 16 Cal.5th 730, 742 (Lynch).) Under the amended statute, courts may not
impose an upper term sentence unless aggravating circumstances justify that term and
any facts underlying the circumstance, “have been stipulated to by the defendant or have
been found true beyond a reasonable doubt at trial by the jury or by the judge in a court
trial.” (§ 1170, subd. (b)(2); Lynch, at p. 742.) However, courts “may consider the
defendant’s prior convictions . . . based on a certified record of conviction without
submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).) Subdivision (b)(5)
9
states, “The court may not impose an upper term by using the fact of any enhancement
upon which sentence is imposed under any provision of law.” (§ 1170, subd. (b)(5).)
Even assuming the trial court erred in its reliance on defendant’s criminal record to
reimpose the upper term, any such error was harmless beyond a reasonable doubt
(Chapman v. California (1967) 386 U.S. 18, 24) because, as we explain, the plain
language of section 1172.75, subdivision (d)(4) independently authorized the trial court to
reimpose the upper term without the heightened factfinding requirements of section 1170,
subdivision (b).
We note defendant’s original upper term sentence was the result of a negotiated
disposition, not the exercise of judicial factfinding or discretion. Courts of Appeal
disagree about whether a defendant whose upper term was imposed pursuant to a plea
agreement is entitled to retroactive application of the heightened factfinding requirements
of amended section 1170, subdivision (b). (Compare People v. Mitchell (2022) 83
Cal.App.5th 1051, review granted Dec. 14, 2022, S277314 [defendant whose sentence is
the result of a plea agreement is not entitled to retroactive relief under amended section
1170] & People v. Todd (2023) 88 Cal.App.5th 373, review granted Apr. 26, 2023,
S279154 [where an upper term sentence was the result of a plea agreement defendant is
still entitled to retroactive relief under section 1170, subd. (b)].) The issue is currently
pending before our Supreme Court. While we find the holding in Mitchell more
persuasive on the point, we need not resolve this question because, as noted, we find the
10
plain language of section 1172.75, subdivision (d)(4), provides an independent basis to
affirm reimposition of defendant’s upper term sentence.
As the parties note, there is a split in authority on the issue of whether
section 1172.75, subdivision (d)(4), provides an exception to the factfinding requirements
under section 1170, subdivision (b)(2).
In Brannon-Thompson, supra, 104 Cal.App.5th 455, the Third Appellate District
held “section 1172.75, subdivision (d)(4) carves out an exception to the general rule that
all ameliorative changes to the law must be applied at a section 1172.75 resentencing and
does not require aggravating factors to be found true beyond a reasonable doubt if the
upper term was previously imposed.” (Brannon-Thompson, at p. 458.) Relying on the
plain language of section 1172.75, subdivision (d)(4), the court explained: “[T]he
Legislature intended the new burden of proof amendments to section 1170,
subdivision (b) apply only if the trial court is imposing the upper term for the first time at
a section 1172.75 resentencing.” (Id. at pp. 466-467, italics added.)
In People v. Gonzalez (2024) 107 Cal.App.5th 312 (Gonzalez), which defendant
urges us to follow, the Sixth Appellate District held section 1172.75, subdivision (d)(4),
“simply restricts the scope of defendants eligible to receive the upper term.” (Gonzalez,
at p. 330, italics omitted.) The court explained: “Under such an interpretation, a
defendant would be eligible for the upper term but could not receive it in the absence of
aggravating factors stipulated to by the defendant or proven beyond a reasonable doubt to
the trier of fact. In other words, the same requirements for imposing an upper term under
11
section 1170, subdivision (b)(2) would apply, thus eliminating any potential conflict
between the statutes.” (Ibid.) The court “acknowledge[d] that the plain language of
section 1172.75, subdivision (d)(4), on its face, could be interpreted as not requiring
proof of aggravating factors before reimposing an upper term sentence,” yet concluded
otherwise. (Id. at pp. 328-329.)
The Gonzalez court went on to reject the reading of the court in Brannon-
Thompson based primarily on perceived constitutional issues. The court explained the
Brannon-Thompson interpretation “would potentially result in the statute impermissibly
exempting defendants who previously received upper term sentences from the rule that
eligibility for any upper term sentence depends on ‘facts that have been established
consistently with Sixth Amendment principles.’ ” (Gonzalez, supra, 107 Cal.App.5th at
p. 329.)
The Gonzalez court noted that in Lynch, supra, 16 Cal.5th 730, the California
Supreme Court held that “ ‘a Sixth Amendment violation occurs when the trial court
relies on unproven aggravating facts to impose an upper term sentence, even if some
other aggravating facts relied on have been properly established.’ ” (Gonzalez, supra,
107 Cal.App.5th at pp. 326-327, citing Lynch, at p. 768.) Accordingly, the court
concluded that “reading an exemption into section 1172.75, subdivision (d)(4), in the
manner suggested by [Brannon-Thompson], and thereby allowing a court to resentence a
defendant to an upper term sentence without proof beyond a reasonable doubt of
aggravating factors, would run afoul of the Sixth Amendment implications identified in
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Lynch.” (Gonzalez, at p. 330.) To avoid that issue, the court adopted the defendant’s
proposed interpretation of the opening clause of section 1172.75, subdivision (d)(4) as
“simply restrict[ing] the scope of defendants eligible to receive the upper term.”
(Gonzalez, supra, at p. 330, italics omitted.)
Several appellate courts, including this court, have disagreed with Gonzalez,
supra, 107 Cal.App.5th 312 and interpreted section 1172.75, subdivision (d)(4) as an
exception allowing courts to reimpose the original upper term sentences without a
stipulation or jury finding of aggravated circumstances. (Lua, supra, 121 Cal.App.5th
472; People v. Moss (2026) 120 Cal.App.5th 375; People v. Dozier (2025) 116
Cal.App.5th 700, 709, review granted Feb. 11, 2026, S294597 (Dozier); People v. Mathis,
supra, 111 Cal.App.5th 359.)
Recently, in Lua, supra, 121 Cal.App.5th 472, this court agreed “with the majority
of the cases that construe section 1172.75[, subdivision] (d)(4) as an exemption or
exception permitting resentencing courts to reimpose the original upper term sentences
without a stipulation or a jury finding of aggravated circumstances.” (Id. at p. 478, citing
Dozier, supra, 116 Cal.App.5th at p. 713; Mathis, supra, 111 Cal.App.5th at pp. 373-374;
Brannon-Thompson, supra, 104 Cal.App.5th at p. 458.) As such, we concluded “the
factfinding requirements in section 1172.75[, subdivision] (d)(4) ‘apply only if the trial
court is imposing the upper term for the first time at a section 1172.75 resentencing.’ ”
(Lua, supra, at p. 478, quoting Brannon-Thompson, supra, at pp. 466-467.)
13
Interpreting the statute, we noted that the first clause of section 1172.75,
subdivision (d)(4)—“Unless the court originally imposed the upper term”—“provides a
clear and unambiguous exception to the second clause requirement that aggravated facts
be stipulated or proven for imposition of upper term sentences at resentencing.” (Lua,
supra, 121 Cal.App.5th at p. 478, citing Mathis, supra, 111 Cal.App.5th at p. 374;
Brannon-Thompson, supra, 104 Cal.App.5th at pp. 466-467.) We thus joined the cases in
line with Dozier, Mathis, and Brannon-Thompson and concluded that section 1172.75,
subdivision (d)(4) “clearly and unambiguously expresses ‘the Legislature’s intent that the
new, heightened factfinding requirements for aggravating factors do not apply where the
defendant was originally, lawfully sentenced to an upper term.’ ” (Lua, at p. 478, quoting
Mathis, at p. 374.) We also agreed with the Mathis court that the Sixth Amendment is not
implicated here. (Lua, at p. 478.)
Our Supreme Court will have the final word as it has granted review on the issue
of whether section 1172.75, subdivision (d)(4), permits a court to reimpose an upper term
sentence without satisfying the factfinding requirements of section 1170, subdivision (b).
(People v. Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14,
2025, S289903; Dozier, supra, 116 Cal.App.5th 700, review granted Feb. 11, 2026,
S294597.) Until then, we agree with the majority view and decline to follow Gonzalez,
supra, 107 Cal.App.5th 312.
Because defendant’s original sentence, which included the upper term on count 5
for the robbery conviction, occurred under a sentencing scheme that fully complied with
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the Sixth Amendment, the court did not err by retaining the upper term sentence on
count 5. (Mathis, supra, 111 Cal.App.5th at pp. 373-374 [“Where, as here, the trial court
elects to retain an upper term sentence that complied with the Sixth Amendment when
originally imposed, the court need not engage in any additional factfinding under
section 1172.75, subdivision (d)(4)”].) Under the interpretation of section 1172.75,
subdivision (d)(4), the trial court was permitted to reimpose the upper term (or decline to
reduce it) without relying on factual findings that were either stipulated to or proven
beyond a reasonable doubt. For these reasons, we find the trial court did not err in
reimposing the upper term on count 5 for robbery.
B. Resentencing Hearing in Defendant’s Absence
Defendant contends the case must be remanded for resentencing because he
neither appeared at nor waived his presence at the resentencing hearing. We disagree.
A defendant’s right to be personally present at trial and, by extension, at all critical
stages of the criminal prosecution including resentencing, is guaranteed in the federal
Constitution by the confrontation clause of the Sixth Amendment and the due process
clause of the Fourteenth Amendment, as well as by section 15 of article I of the
California Constitution and section 977. (People v. Velasco (2023) 97 Cal.App.5th 663,
673 (Velasco).) This is necessary to protect their opportunity for effective cross-
examination or to permit them to participate at a critical stage and enhance the fairness of
the proceeding. (§§ 977, 1043; People v. Flinner (2020) 10 Cal.5th 686, 710 (Flinner).)
But none of those provisions require defendants to be personally present at a hearing
15
where their presence bears no reasonable, substantial relation to defending the charges
against them or otherwise contribute to the fairness of the proceedings. (People v.
Blacksher (2011) 52 Cal.4th 769, 799 (Blacksher).)
“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.) “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); People v. Fedalizo (2016) 246 Cal.App.4th 98, 110 [“ ‘[T]he court can rely
upon the representations of defense counsel that the accused was knowingly absent from
the proceedings.’ ”].) Counsel may enter such a waiver on a defendant’s behalf so long as
there is “some evidence that the defendant understood the right [they were] waiving and
the consequences of doing so.” (People v. Davis (2005) 36 Cal.4th 510, 532 (Davis).)
We independently determine whether counsel entered a valid waiver. (People v.
Gutierrez (2003) 29 Cal.4th 1196, 1202.) If we conclude they did not, reversal is
required unless we “conclude beyond a reasonable doubt that it did not affect the
outcome of the proceeding.” (Velasco, supra, 97 Cal.App.5th at p. 674; see Davis, supra,
36 Cal.4th at pp. 532-533 [constitutional error “pertaining to a defendant’s presence is
evaluated under the harmless-beyond-a-reasonable-doubt standard set forth in Chapman
v. California (1967) 386 U.S. 18, 23”].) In other words, to prevail over a claim that their
16
constitutional or statutory rights to be present at a hearing have been violated, defendants
must establish that their absence prejudiced their case. (Flinner, supra, 10 Cal.5th at
p. 710; Blacksher, supra, 52 Cal.4th at p. 799.)
Here, counsel did not enter a valid waiver of defendant’s presence at the May 5,
2025 resentencing hearing. Though counsel stated defendant had “previously waived his
right to be present,” nothing in the record indicates that counsel was authorized to do so
pursuant to section 977 or that defendant had waived his appearance. (Velasco, supra, 97
Cal.App.5th at p. 674 [although minute order indicates the defendant waived his presence
at his resentencing hearing there is no evidence on the record that a valid waiver was
entered by the defendant or his counsel]; Davis, supra, 36 Cal.4th at p. 532 [defense
counsel’s waiver of the defendant’s presence must be supported with evidence that the
defendant was informed of and understood his right to be present and the consequences
of his waiver].) And we cannot presume that defendant knowingly, voluntarily, and
intelligently waived his presence at his resentencing hearing simply because counsel
previously appeared pursuant to section 977. As in Velasco, although defendant
previously waived his presence, “there is no corresponding writing in the record” stating
that he did so for this hearing, his attorney did not state as much at the hearing, and the
court did not make any finding permitting counsel to appear pursuant to section 977.
(Velasco, at p. 674.) We thus conclude, as do the People, that it was error to resentence
defendant in his absence. (See, e.g., Velasco, at p. 674; People v. Cutting (2019) 42
Cal.App.5th 344, 348 (Cutting).)
17
But in our view the error did not affect the outcome of the proceeding. Defendant
generally argues his absence was prejudicial because he could have presented testimony,
evidence, or otherwise assisted his attorney about his efforts to rehabilitate while in
prison. In Velasco and Cutting, the appellate courts found that the error was not harmless
beyond a reasonable doubt 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.)
However, those cases are distinguishable from this case. Here, defendant’s
counsel argued that defendant was entitled to have the court consider postconviction
factors such as his record of discipline while incarcerated, efforts at rehabilitation, and
evidence as to whether his age, time served, and diminished physical condition, if any,
has reduced his risk for future violence, or whether circumstances since the original
sentencing demonstrate continued incarceration is not in the interests of justice. Defense
counsel noted that there were no aggravating factors found at the time defendant was
originally sentenced and he has since demonstrated that he is not a risk for future
violence or a danger to public safety. Defense counsel explained that defendant, at nearly
50 years old, spent his time in prison attending meetings to address his addiction issues,
renounced any association with gangs, and was working on his GED. Counsel here had
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“offered mitigating factors that arose after [defendant’s] original sentencing” and “made a
plea for leniency.” (Cutting, supra, 42 Cal.App.5th at p. 350.)
The People countered that defendant had a long criminal history and that many of
his prior crimes involved violence for which he had served prison sentences. In addition,
the People stated that defendant had multiple rules violations while incarcerated, most
recently involving violence and non-compliance. Upon consideration of the parties’
arguments and the sentencing factors, the trial court declined to modify the 12-year
sentence that was imposed at the earlier recall hearing.
Defendant speculates that had he been present at the resentencing hearing “he
could have assisted counsel or offered testimony and evidence about his efforts to
rehabilitate while in prison.” But counsel made such requests in the trial court.
Moreover, defendant did not identify any additional evidence or what testimony he could
have testified to had he been present at the hearing. It was defendant’s burden to
establish his absence at the evidentiary hearing was prejudicial. (Blacksher, supra,
52 Cal.4th at p. 799; accord, People v. Quan (2023) 96 Cal.App.5th 524, 536.)
Defendant has not done so.
Given defense counsel’s arguments, defendant’s criminal history, and his conduct
while incarcerated, defendant’s presence would not have changed the result. The record
demonstrates that defendant’s absence at the full resentencing hearing was harmless
beyond a reasonable doubt. (People v. Nieves (2021) 11 Cal.5th 404, 509 [court’s failure
to take proper waiver for restitution hearing harmless beyond a reasonable doubt where
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there was “nothing in the record to indicate” the defendant could have “added any
significant information about her inability to pay beyond that presented by defense
counsel”].)
C. Calculation of Custody Credits
Defendant contends, and the People agree, that the trial court failed to recalculate
his custody credits at resentencing and specify the updated total in the amended abstract
of judgment to reflect the period between his original sentencing on February 16, 2016,
and the resentencing hearing on October 9, 2023.
We agree with the parties that the trial court was required to recalculate
defendant’s custody credits at the time of resentencing. “Where a defendant has served
any portion of his sentence under a commitment based upon a judgment which judgment
is subsequently . . . modified during the term of imprisonment, such time shall be credited
upon any subsequent sentence he may receive upon a new commitment for the same
criminal act or acts.” (§ 2900.1; People v. Saibu (2011) 191 Cal.App.4th 1005, 1012;
cf. People v. Buckhalter (2001) 26 Cal.4th 20, 23 [trial court must calculate time served
and credit against subsequent sentence when remand results in modification of a felony
sentence].)
Because the trial court failed to comply with this requirement, we remand for the
limited purpose of allowing the court to calculate defendant’s actual time served on his
sentence through the resentencing hearing and to award such credits in an amended
abstract of judgment. (See Buckhalter, supra, 26 Cal.4th at p. 41.)
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IV.
DISPOSITION
The matter is remanded to the trial court for the limited purpose of allowing the
court to calculate the custody credits to which defendant is eligible on his resentencing.
The trial court shall prepare an amended abstract of judgment reflecting the updated
award of custody credits and shall then forward the amended abstract of judgment to the
California Department of Corrections and Rehabilitation. In all other respects, the
postconviction orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
FIELDS
J.
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