California Court of Appeal Aug 13, 2025 No. E083447Unpublished
Filed 8/13/25 P. v. Yates CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083447
v. (Super.Ct.No. INF1800540)
DOUGLAS JOHN YATES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Steven J. Counelis,
Judge. Affirmed.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and
Respondent.
In this court’s prior nonpublished opinion, People v. Yates (Jan. 25, 2022,
E075152) (Yates), we affirmed appellant and defendant Douglas John Yates’s conviction
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of 20 counts of animal cruelty (Pen. Code,1 § 597, subd. (b)) but remanded for a new
sentencing hearing based on ineffective assistance of counsel. On remand, the trial court
imposed the same 14-year eight-month split sentence originally imposed. Defendant
Furthermore, we do not agree that an updated report that contained current
information regarding defendant’s “positive steps” taken under supervision, or counseling
programs he was enrolled in, would have changed the trial court’s decision.4 As the
court stated, “I will indicate this too also, for the sake of defense counsel at the original
trial, had that defense attorney . . . asked me for concurrent sentences, I would have
denied that request based upon all the factors under [rule] 4.425. [¶] Now, I believe that
the sentence that I originally issued remains the appropriate sentence.· There are no
3 Although Dr. Jones opined “the emotional effects of the early loss of his father” makes it “difficult[ for him to] let[] go of his dogs when he is unable to care for them adequately,” the doctor stated that when defendant “is not under stress [(unemployed, health issues, and homeless)] his decision making is likely to be more realistic.” He further added that defendant’s “functioning with the demands of daily life has been deteriorating over about the last 10 years” due to a serious head injury in 2002, three heart attacks in 2014 and 2015, and sleep apnea, all of which indicate a “Major Neurocognitive Disorder.”
4 At the time of the resentencing hearing, defendant was homeless.
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factors for me to change my view on that.· There’s no change of circumstances from the
defendant.· He should not be entitled to a discount or any benefit simply because the
Court of Appeal found ineffective assistance of counsel by his trial attorney.”
Given the trial court’s clear statement that it had no intention of placing defendant
on probation or sentencing him to a lower term, we conclude it is not reasonably probable
his sentence would have been any different had a supplemental probation report been
prepared. (People v. Watson, supra, 46 Cal.2d at p. 836.)
B. Resentencing in Defendant’s Absence.
Defendant contends the trial court violated his constitutional and statutory rights
by sentencing him in his absence when he did not waive his right to be present. We
disagree.
1. Further background information
On July 21, 2023, the trial court requested a sentencing memorandum from the
defense, and defendant agreed to be sentenced on September 8, or within a reasonable
time thereafter, and for the court to sentence him in his absence as long as his counsel
was present.5 Later, the prosecutor sought clarification as to whether the court would
5 The following exchange occurred: “THE COURT: Do you want to order your client back, or does he want to come on his own accord? “[DEFENSE COUNSEL]:· We don’t need an order.· If he’s not here, it will be because something happened.· He’s in the hospital, and he said he waives his appearance.· I’ll be able to represent that to the Court. “THE COURT:· Why don’t you—if you don’t have a 977 on file, why don’t you put one on file now— “[DEFENSE COUNSEL]: Deal. [footnote continued on next page]
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sentence defendant even if he is not present. The court replied, “I need you to waive his
presence for the sentencing.· So he has a right to be present for sentencing, but if he’s not
here and he tells his lawyer he doesn’t want to be here, his lawyer can appear for him
even at sentencing, and, as a result, he would be waiving his right to be present for
sentencing. [¶] . . . [¶] . . . [B]ut it also means that I’ll order his presence through his
lawyer back to be remanded, if that turns out to be the ultimate sentence. [¶] I’m not
prejudging that right now, but that’s the mechanism we’ll be using.”
At the end of the hearing, the trial court confirmed defendant was released on his
own recognizance. After defense counsel informed the court that they would provide the
waiver form, the court told defendant, “But it also means, though, because you signed the
[section] 977 form, that if your lawyer tells you to return, it’s as if I told you to return.”
Defendant replied, “Okay.”
“THE COURT:· —so that that is clear. [¶] So, [defendant], you’re welcome to come back. “THE DEFENDANT:· Okay. “THE COURT:· By signing the form under Penal Code 977, your attorney can appear for you if there’s a reason like a medical emergency or some other reason you can’t be here. “THE DEFENDANT:· Okay. “THE COURT:· But if you’re not here and I sentence you, I will order you to return, though, at some point in the future to serve a sentence. “THE DEFENDANT:· Okay. “THE COURT:· So it will probably be more efficient for you to be here. “THE DEFENDANT:· Right.· I plan on it. “THE COURT:· But your attorney can appear for you if absolutely necessary.”
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On the same day, defendant, his counsel and the trial court signed a Riverside
County form entitled, “Waiver of Defendant’s Personal Presence (977(c) Penal Code).”6
On January 19, 2024, following the last request for a continuance to accommodate
defense counsel, the court set the sentencing hearing for March 1 and ordered defendant
“to be personally present.” Defense counsel replied, “I’ll have [defendant] here.· No
question. [¶] I had told the Court, when I first got the case, I had not reached out to
him.· I couldn’t find him.· I have a good number.· Every time I call now, he’s right on
the line. And he’ll come when I tell him, so he’ll be here.”
On March 1, 2024, defense counsel stated his appearance and said, “And
[defendant] has given me approval to appear 977. He’s waived his presence.”
2. Applicable legal principles
“A criminal defendant’s right to be personally present at trial is guaranteed under
the federal Constitution by the confrontation clause of the Sixth Amendment and the due
process clause of the Fourteenth Amendment. It is also required by section 15 of article I
6 “The undersigned defendant, having been advised of his right to be present at all stages of the proceedings, including but not limited to presentation of and arguments on questions of law, and to be confronted by and cross-examine all witnesses, hereby waives the right to be present at the hearing of any motion or other proceeding in this cause, including when the case is set for trial, when a continuance is ordered, and following is heard, when a motion for reduction of bail or for a personal recognizance release is heard, when a motion to reduce sentence is heard, and when questions of law are presented to or considered by the court. The undersigned defendant hereby requests the court to proceed during every absence of his which the court may permit pursuant to this waiver, and hereby agrees that his interest will be deemed represented at all times by the presence of his attorney the same as if the defendant himself were personally present in court, and further agrees that notice of his attorney that his presence in court on a particular day at a particular time is required will be deemed notice to him of the requirement of his appearance at said time and place.”
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of the California Constitution and by sections 977 and 1043.” (People v. Concepcion
(2008) 45 Cal.4th 77, 81.) “This right extends to all ‘“critical stages of the criminal
prosecution”’ and includes sentencing and resentencing. . . . [¶] [However, it] may be
waived.” (People v. Velasco (2023) 97 Cal.App.5th 663, 673; see People v. Nieves
(2021) 11 Cal.5th 404, 508 [A defendant may waive his right to be present at the
resentencing hearing, but only if such waiver is voluntary, knowing, and intelligent];
People v. Davis (2005) 36 Cal.4th 510, 532 [Defense counsel may waive a defendant’s
presence, but only if there is evidence that defendant consented to the waiver].)
Section 977, subdivision (b)(2), provides that a defendant may waive the right to
be present at a resentencing hearing by written waiver filed with the court, or as follows:
“(A) A defendant’s personal waiver of the right to be physically . . . present shall be on
the record and state that the defendant has been advised of the right to be physically . . .
present for the hearing at issue and agrees that notice to the attorney that the defendant’s
physical . . . presence in court at a future date and time is required is notice to the
defendant of that requirement. [¶] (B) A waiver of the defendant’s physical . . . presence
may be entered by counsel, after counsel has stated on the record that the defendant has
been advised of the right to be physically . . . present for the hearing at issue, has waived
that right, and agrees that notice to the attorney that the defendant’s physical . . . presence
in court at a future date and time is required is notice to the defendant of that
requirement.” (§ 977, subd. (b)(2).)
Whether a defendant has a right to be present at a hearing is a question of law we
review de novo. (People v. Santos (2007) 147 Cal.App.4th 965, 972.) We review the
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trial court’s factual findings for substantial evidence. (People v. Reneaux (2020)
50 Cal.App.5th 852, 863.)
3. Analysis
Here, defendant forfeited or waived his right to be present at the resentencing
hearing. Initially, he stated his plan to attend his resentencing hearing; however, he
simultaneously completed a section 977 waiver and acknowledged that resentencing
could proceed in his absence “if there’s a reason like a medical emergency or some other
reason [he] can’t be [t]here.” The court explicitly informed defendant of his right to be
present and ensured he had no questions about this right or his right to waive his
presence. At the resentencing hearing, defense counsel represented that defendant gave
him “approval to appear 977” and “waived his presence.” Based on the evidence before
this court, defendant knowingly and intelligently waived his presence at the resentencing
hearing. (People v. Nieves, supra, 11 Cal.5th at p. 508; People v. Davis, supra, 36
Cal.4th at p. 532.)
C. Imposition of a Fully Consecutive Sentence on All Counts.
Finally, defendant contends the trial court abused its discretion in imposing a fully
consecutive sentence on all counts because it exceeds punishment for certain serious and
violent felonies, and concurrent sentences are common in animal abuse cases. We find
no abuse of discretion.
1. Applicable legal principles
Absent an express statutory provision to the contrary, the decision to impose
consecutive or concurrent terms is left to the sentencing court’s discretion under section
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669. (People v. Valdez (2011) 193 Cal.App.4th 1515, 1524 [under § 669, a trial court has
discretion to determine whether several sentences are to run concurrently or
consecutively]; People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479-1480 [where a
statute “does not contain an express provision depriving the trial court of the discretion
afforded to it in section 669,” the trial court has “discretion to choose between concurrent
and consecutive sentences”].) The sentencing court’s discretion is broad, and “its
decision will be affirmed on appeal, so long as it is not arbitrary or irrational and is
supported by any reasonable inferences from the record.” (People v. King (2010) 183
Cal.App.4th 1281, 1323; see People v. Clancey (2013) 56 Cal.4th 562, 578-579 [trial
court does not abuse its discretion unless its decision was so irrational, arbitrary or
capricious that no reasonable person could agree with it].)
2. Analysis
Defendant was tried and convicted of 20 counts of felony animal cruelty in
violation of section 597, subdivision (b), which imposes criminal penalties on “whoever,
having the charge or custody of an animal . . . subjects an animal to needless suffering, or
inflicts unnecessary cruelty upon the animal, or in any manner abuses an animal, or fails
to provide the animal with proper food, drink, or shelter, or protection from the
weather, . . .” These offenses involved eight cats discovered in June 2017 and 12 dogs
discovered in February 2018. Previously, defendant was accused of abandoning animals,
and he suffered a 2006 conviction for animal cruelty. While on bail for his present
offenses, he was arrested for abusing another 50 animals. Both probation and the
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prosecution recommended fully consecutive terms because each count was a separate act
and there were multiple aggravating circumstances.
The trial court imposed the recommended sentence. The court found consecutive
sentencing appropriate because “the crimes and objectives were predominantly
independent of each other, and each animal was a separate victim, a separate act of
violence, though they were all in the same location.” We cannot say the court abused its
discretion in concluding a full consecutive sentence was warranted. As Justice Menetrez
previously observed, the “court sentenced [defendant] to only 5 years and 8 months of
incarceration for 20 felonies with multiple aggravating circumstances. [Defendant] will
serve the rest of his sentence on mandatory supervision, during which he can get the
treatment . . . [he] needs. Nothing in the record supports a more lenient sentence.”
(Yates, supra, E075152 (conc. & dis. opn. of Menetrez, J.).)