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Name: People v. Santos (2024) 100 Cal.App.5th 666
Case #: C096979
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/14/2024

A defendant whose sentence is recalled pursuant to Penal Code section 1172.75 to strike a prison prior enhancement is not entitled to application of the Three Strikes Reform Act (Proposition 36) at resentencing. Originally sentenced in 2007, defendant received a term of 25 years to life for drug offenses under the original Three Strikes law, prior prison term enhancements (Pen. Code, § 667.5(b)), and prior drug conviction enhancements (Health & Saf. Code, § 11370.2(b)). At a 2022 section 1172.75 resentencing hearing to dismiss now invalid terms, the trial court struck the prison prior and drug conviction enhancements but left intact the Three Strikes life sentence. On appeal, defendant argued he was entitled to a full resentencing, including application of the Three Strikes Reform Act. Held: Affirmed. The Reform Act lessened the prescribed sentence for a third strike defendant whose current offense is not a serious or violent felony, with certain exceptions. In People v. Conley (2016) 63 Cal.4th 646, the California Supreme Court held that, as to the revised penalty provisions in the Reform Act, the ameliorative Estrada rule was overridden by the petition for resentencing provisions of section 1170.126. Thus, under Conley, even during a full resentencing, the Reform Act cannot be applied retroactively to entitle a defendant to automatic resentencing outside of section 1170.126. The court disagreed with defendant’s argument that the trial court was required to apply the current version of the Three Strikes law to lessen his sentence under section 1172.75(d)(2). Section 1172.75 says nothing about third strike offenses and there is no indication that the Legislature thought it was enabling resentencing of third strike sentences or changing the way the Reform Act operates retroactively. In any event, the Legislature may only amend the Three Strikes law via statute if it passes with a two-thirds vote, which did not occur with respect to section 1172.75. [Editor’s Note: This issue is pending before the California Supreme Court in People v. Superior Court (Guevara) (2023) 97 Cal.App.5th 978, review granted 3/12/2024 (S283305/B329457): Do the revised penalty provisions of the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.12) apply when a defendant is resentenced pursuant to Senate Bill No. 483 (Pen. Code, § 1172.75)?]

The resentencing of defendant in his absence was harmless error. Defendant’s resentencing hearing was continued several times. At a continued hearing date when defendant was absent, counsel waived his presence. Defendant argued he had a constitutional right to be present at his resentencing hearing. However, a defendant may waive their constitutional right to be present, so long as the waiver is voluntary, knowing, and intelligent. Defense counsel may waive the client’s presence if there is evidence that the defendant consented to the waiver. In this case, no mitigating evidence or motion to dismiss one or more of the defendant’s Three Strikes convictions was presented at the resentencing hearing, so defendant’s absence did not affect the outcome of the proceeding. Thus, any error in accepting defense counsel’s waiver of defendant’s presence at resentencing was harmless beyond a reasonable doubt.