People v. Sanders CA3

Filed 09/20/24 P. v. Sanders CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C098642

Plaintiff and Respondent, (Super. Ct. No. CM015193)

v.

LARRY EDWARD SANDERS,

Defendant and Appellant.

In 2001, defendant Larry Edward Sanders was sentenced to 34 years to life in prison for attempted murder and assault. His sentence included an upper term for the assault, two firearm enhancements, and a prior prison term enhancement. The court also imposed two $10,000 restitution fines. In 2022, defendant filed a petition to strike the enhancements based on changes in law and asked for reduction of the restitution fines. In the resentencing brief, defense counsel wrote, “[d]efendant waives his right to be personally present.” At the resentencing hearing, the trial court stated, “[Defendant], as I understand it, has waived

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his personal appearance for resentencing; is that correct, [defense counsel]?” Defense counsel responded, “Yes. That’s correct, Your Honor,” and then the court proceeded with the hearing in defendant’s absence. The court struck the prior prison term enhancement and reduced the restitution fines to $200 but otherwise imposed the previous sentence. On appeal, defendant contends the waiver presented by his attorney was invalid and the resentencing court prejudicially erred in holding the hearing in defendant’s absence. Defendant also contends the resentencing court erred by reimposing the upper term for the assault and by including $10,000 restitution fines in the abstract of judgment inconsistent with the judge’s oral pronouncement. We agree with defendant regarding his absence from the hearing and remand for resentencing. Because we remand, defendant’s other contentions are moot. Undesignated statutory references are to the Penal Code unless otherwise indicated. FACTUAL AND PROCEDURAL BACKGROUND In 2001, a jury found defendant guilty of assault with a firearm and attempted murder after he hit his ex-wife (ex-wife) in the head with a firearm and shot her boyfriend. Defendant was sentenced to 34 years to life in state prison composed of a 4- year upper term for the assault (§ 245, subd. (a)(1)), 4- and 25-year enhancements for the firearm use (§§ 12022.5, subd. (a), 12022.53, subd. (d)), and a 1-year prior prison term enhancement on the assault count (§ 667.5, subd. (b)). The court also imposed a $10,000 restitution fine (§ 1202.4, subd. (b)) and a suspended $10,000 parole revocation fine (§ 1202.45). In March 2022, defendant in pro per filed a petition for resentencing citing former section 1170.95 (now section 1172.6) (the first petition). (See People v. Reyes (2023) 14 Cal.5th 981, 984.) On May 5, 2022, the court appointed counsel for defendant as to the first petition. On May 23, 2022, defendant still in pro per filed a second petition for resentencing (the second petition), again citing section 1172.6. The court treated the second petition as