People v. Rubalcava CA4/3

Filed 11/2/23 P. v. Rubalcava CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G062149

v. (Super. Ct. No. 10NF1758)

RAUL RUBALCAVA, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Donald F. Gaffney, Judge. Reversed and remanded with directions. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent. * * *

After defendant Raul Rubalcava had spent a decade in prison on carjacking and related charges, the Secretary of the Department of Corrections and Rehabilitations (the Secretary) requested the trial court resentence Rubalcava under Penal Code section 1172.1.1 The trial court did not act on the Secretary’s request, so Rubalcava filed a petition for resentencing under section 1172.1 (the petition). Rubalcava was not present at the hearing on the petition, but the court proceeded in his absence and denied it. On appeal, Rubalcava argues he had a constitutional right to be present at the hearing and there is no evidence he provided a valid waiver of this right. We agree and find Rubalcava’s absence from the hearing was prejudicial. Thus, we reverse the order denying the petition and direct the court to conduct a new hearing on remand.

I FACTS AND PROCEDURAL HISTORY In June 2010, a complaint was filed charging Rubalcava with counts of (1) carjacking (§ 215, subd. (a)), (2) robbery (§§ 211, 212.5, subd. (c)), (3) possession of a firearm by a felon (former § 12021, subd. (a)(1)),2 and (4) street terrorism (§ 186.22, subd. (a)). He was also charged with a firearm enhancement (§ 12022.53, subd. (b)), in connection with the carjacking and robbery counts, and a gang enhancement (§ 186.22, subd. (b)), as to each count except street terrorism. Rubalcava agreed to plead guilty to all four counts and admit to the firearm enhancement on the robbery count in exchange for the dismissal of the remaining enhancements. In December 2010, the court sentenced him to a total of 17 years and four months, which was composed of five years for carjacking, 10 years for the related firearm