People v. Chavez CA3

Filed 1/31/25 P. v. Chavez 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C099797

Plaintiff and Respondent, (Super. Ct. No. CR2013-2857)

v.

SERGIO CHAVEZ,

Defendant and Appellant.

Defendant Sergio Chavez, who was serving a 34-year sentence, filed a motion for resentencing under Penal Code section 1172.75 (undesignated statutory references are to the Penal Code). Defendant was not present at the resentencing hearing. Although defense counsel purported to waive defendant’s presence at the hearing, the record does not contain a written waiver or demonstrate that defendant’s waiver was knowing and intelligent. Defendant appeals the judgment imposed following recall and resentencing,

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contending the trial court prejudicially erred in conducting the resentencing in his absence and without a valid waiver. The People agree the trial court erred, but argue the error was harmless beyond a reasonable doubt. We will reverse the judgment and remand to the trial court for a new resentencing hearing.

FACTS AND HISTORY OF THE PROCEEDINGS The facts supporting and the procedural background of defendant’s underlying convictions are taken from the trial court’s statement of facts at the resentencing hearing and our opinion in defendant’s prior appeal. (People v. Chavez (Mar. 24, 2016, C078834) [nonpub. opn.].) Neither party objected to the trial court’s statement of facts. On our own motion, we take judicial notice of our unpublished opinion in defendant’s prior appeal. (Evid. Code, § 452, subd. (d)(1).) Defendant was a maintenance worker at an apartment complex. Defendant, his girlfriend, and another friend, X.F., were socializing together at a bar. When they returned to the apartment complex, X.F.’s ex-girlfriend, M.G. saw them. M.G. was in a rage, screaming profanities at X.F. from her apartment. M.G. also threatened to kill herself. X.F. walked away without engaging with her. Defendant and his girlfriend went to M.G.’s apartment. (Chavez, supra, (Mar. 24, 2016, C078834) [nonpub. opn.].) Defendant stepped into the apartment, with a gun in his waistband. M.G. was terrified, grabbed a box cutter, and told him to get out. Defendant pulled out the gun and held it to M.G.’s head. M.G. dropped the box cutter and knocked the gun away. Defendant pointed the gun at her stomach and then her chest. He again put the gun near M.G.’s head and fired it. The bullet went into the wall and defendant left the apartment. A jury found defendant guilty of assault with a semiautomatic firearm (§ 245, subd. (b)) and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury also found true a personal use firearm enhancement. (§ 12022.5, subd. (a).) (Chavez, supra, (Mar. 24, 2016, C078834) [nonpub. opn.].) In bifurcated proceedings, the trial court