People v. Lopez CA2/6

Filed 7/16/24 P. v. Lopez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B327881 (Super. Ct. No. CR47771C) Plaintiff and Respondent, (Ventura County) v. BENNY MENDEZ LOPEZ, Defendant and Appellant.

Benny Mendez Lopez appeals from a postjudgment motion for resentencing. He is serving a sentence of 25 years to life for first degree murder. He accomplished this crime using a baseball bat. (See People v. Schell (2022) 84 Cal.App.5th 437, 440.) He was represented by appointed counsel at an abbreviated evidentiary hearing. He was not physically present in court and did not appear either by telephone or “zoom” video. The transcript of the brief resentencing hearing is appended hereto as Exhibit A and incorporated herein. A criminal defendant has a constitutional right to be present at a resentencing proceeding. (People v. Cutting (2019) 42 Cal.App.5th 344, 347-348.) Thus, the

trial court erred by going forward with the hearing in his absence without an explicit waiver of the right to be present. (People v. Santos (2024) 100 Cal.App.5th 666, 677-678, review granted Mar. 14, 2024, S284341.) Error in proceeding without physical “presence” or a waiver is not reversible if the error was/is harmless beyond a reasonable doubt. (Id. at p. 678.) The trial court’s error is harmless beyond a reasonable doubt. Appellant falsely checked the box that he could not be presently convicted under the murder statutes now extant. Nothing in the new and ameliorative murder statutes has anything to do with appellant’s conviction for first degree murder. This murder conviction has nothing to do with the “natural and probable consequences” theory of murder now jettisoned by the Legislature. It also has nothing to do with the Legislature modifying the felony murder rules. Appellant beat the victim to death with a baseball bat with the assistance of his gang cohorts. This was, as a matter of law, a premeditated murder. He was, and is, ineligible for resentencing as a matter of law. Nothing he could say, by way of law, or facts, could change this result. Competent and experienced counsel, obviously recognized this and submitted the matter for the trial court’s ruling. It is not ineffective assistance of counsel for an attorney not to make a frivolous presentation to the court. Relying upon People v. Basler (2022) 80 Cal.App.5th 46, 59- 60, appellant contends, “Given that counsel presented no evidence and made no arguments at the evidentiary hearing, respondent will be unable to prove beyond a reasonable doubt that appellant’s absence was harmless.” (Bold and capitalization omitted.) The case relied upon is factually distinguishable because in Basler, there was a true issue as to the degree of appellant’s culpability for the murder. That is not the situation