Defendant had a constitutional right to be present in the trial court during resentencing after obtaining federal habeas relief. Sanchez was convicted of numerous offenses and originally sentenced to 63 years to life in prison. The trial court had imposed a consecutive term of one year, eight months on Sanchez’s conviction for possession of a concealed stolen gun in a vehicle (count five; Pen. Code, § 25400, subd. (a)(1)), and stayed (Pen. Code, § 654) the term on his conviction for possession of a loaded gun in a vehicle (count eight; Pen. Code, § 25850, subd. (a)). After the state court affirmed his conviction, Sanchez filed a federal habeas petition. The federal district court found prejudicial error related to Sanchez’s conviction on count five and granted relief. When the case was back in the superior court for resentencing, the court held that Sanchez had no right to be present. It ordered the term on count eight, which had previously been concurrent and stayed, to be served consecutively. Sanchez appealed. Held: Reversed and remanded. A defendant has a constitutional right to be present for resentencing. In this case, instead of simply lifting the section 654 stay on count eight, the trial court changed a concurrent term to a consecutive one. By altering the sentence to create a more onerous one, the trial court in effect resentenced Sanchez. He therefore had a right to be present.

The sentence on for active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)) should be stayed pursuant to Penal Code section 654. After Sanchez’s first appeal was decided the California Supreme Court held in People v. Mesa (2012) 54 Cal.4th 191, that a defendant may not be punished for participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)) where the only evidence supporting the offense was the commission of a charged offense for which the defendant was also convicted and sentenced. That is the case here. The sentence for the section 186.22, subdivision (a) conviction must be stayed.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G050481.PDF