People v. Mendes CA3

Filed 3/15/24 P. v. Mendes CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C097978

Plaintiff and Respondent, (Super. Ct. Nos. 20CF05871, 18CF03572 & 20CF00924) v.

ADAM ROSS MENDES,

Defendant and Appellant.

In three separate cases, defendant Adam Ross Mendes pled guilty to robbery, felony failure to appear, and felony resisting an executive officer and received an aggregate seven-year sentence. We previously vacated the sentence and remanded the matter to the trial court in light of amendments to Penal Code section 1170. (People v. Mendes (June 23, 2022, C093550) [nonpub. opn.].)1 On appeal, defendant contends he

1 We grant the People’s request for judicial notice of our prior opinion in People v. Mendes, supra, C093550.

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was deprived of due process because he did not make a knowing and intelligent waiver of his right to be present at the resentencing hearing, and because the trial court erred in failing to order another supplemental probation report. The People concede both errors but argue that they were harmless. We cannot conclude beyond a reasonable doubt that defendant’s presence at resentencing would not have influenced the trial court’s exercise of its discretion. Because we conclude that defendant’s absence at his sentencing hearing constitutes reversible error, we need not address any other issue raised on appeal. We will vacate defendant’s sentence and remand for resentencing. FACTUAL AND PROCEDURAL BACKGROUND Defendant pled guilty to robbery (Pen. Code, § 211),2 felony failure to appear (§ 1320.5), and felony resisting an executive officer (§ 69, subd. (a)) in three separate cases. The trial court sentenced defendant to seven years. Defendant appealed and we remanded for resentencing in light of amendments to section 1170. Defendant was not present at the resentencing hearing and defense counsel waived defendant’s appearance. Counsel said he had “been in touch indirectly with [defendant] through his mother,” and defendant had confirmed he did not wish to appear at the hearing. The trial court did not order a new supplemental probation report. In “reaffirming its previous finding that the aggravating factors outweigh any mitigating factors,” the trial court considered the original probation report, the supplemental probation report, and our decision in defendant’s previous appeal. Specifically, the trial court found that defendant serving a prior prison term was an aggravating factor. In mitigation, the trial court found defendant suffered from a “mental or physical condition that could reduce culpability for the crime.” Counsel presented a medical report evidencing an “intercranial injury,” an attention deficit hyperactivity