People v. Ahumada CA2/2

California Court of Appeal Oct 24, 2024 No. B330527Unpublished

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Holding. The trial court erred by conducting a resentencing hearing in the defendant's absence without a valid, personal waiver of his right to be present. Consequently, the resentencing order is vacated and the case is remanded for a new hearing.

Issues

Whether a defendant has a constitutional and statutory right to be present at a resentencing hearing under Penal Code section 1172.75.
Whether defense counsel's unilateral waiver of a defendant's presence at a resentencing hearing is valid without evidence of the defendant's knowing and intelligent consent.
Whether the trial court's error in conducting a resentencing hearing in the defendant's absence was harmless beyond a reasonable doubt.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“A defendant has a constitutional and statutory right to be present at a full resentencing hearing, including one generated by section 1172.75.”

“The record in this case reveals no evidence that defendant understood his right to be present, that he was waiving that right, or that he understood the consequences of doing so.”

“The order is reversed, and the matter remanded for the trial court to conduct a full resentencing hearing in accordance with section 1172.75 with defendant and his counsel present”

Filed 10/24/24 P. v. Ahumada CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B330527

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. PA070015)

MARCOS AHUMADA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, David Walgren, Judge. Reversed and remanded with directions.

Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy

Attorney General, and Kathy S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent.

****** Marcos Ahumada (defendant) appeals the trial court’s order resentencing him without his presence or a valid waiver of his presence. The People concede this was error, and we agree. We accordingly vacate the trial court’s resentencing order and remand for a new resentencing hearing. FACTS AND PROCEDURAL BACKGROUND I. Facts1 A. The underlying crimes On Valentine’s Day 2011, defendant walked into the courtyard of the apartment complex where he used to live, pointed a gun in the face of one resident, and told her, “I’m going to blast you and your family,” or “I’m going to come back and blast you and your kids.” A few minutes later, defendant approached a woman getting into her GMC Yukon in the parking lot of a Baptist school. He pointed a gun in her face, and said, “Bitch, get out of the fucking car. I’m going to fucking kill you.” After he got into the Yukon but could not find the keys, he again threatened to “fucking kill” the woman. When the woman told him precisely where she had left the keys in the Yukon, he drove to a gas station and got out to use a pay phone. When he pulled out of the gas station, a marked police car started to follow him. Once the pursuing officers turned on the

People v. Ahumada CA2/2

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B330527

MARCOS AHUMADA,

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