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Name: People v. Velasco (2023) 97 Cal.App.5th 663
Case #: D081230
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 11/29/2023

The trial court had jurisdiction to resentence defendant under Senate Bill No. 483 even when he had another appeal pending. In 2013, Velasco was sentenced to several felonies and a prior prison term enhancement. On August 2, 2022, he filed a habeas petition in the superior court requesting relief under SB 483. The trial court denied the petition on the grounds that section 1172.75(b) sets forth a specific timeline for granting relief to eligible inmates. He filed an appeal from this denial (case no. D080603). However, the trial court then scheduled a resentencing hearing pursuant to SB 483. At the hearing, where Velasco was not present, the trial court struck his prison prior but made no other modifications. He appealed. On appeal, the Attorney General argued the trial court lacked jurisdiction to conduct this resentencing hearing at all because Velasco’s case was already on appeal before this court in case No. D080603. Held: Reversed and remanded for a full resentencing. A defendant’s filing of a valid notice of appeal typically divests the trial court of jurisdiction over any matter affecting the judgment. However, jurisdiction survives where provided by statute. Using principles of statutory interpretation, the court determined that just like section 1172.1, which provides the trial court discretion to assert jurisdiction and recall a sentence within 120 days, section 1172.75 also presents an exception to the general rule and vests the trial court with jurisdiction to conduct a resentencing hearing while an appeal is pending. Section 1172.75 mandates recall of the relevant sentence enhancements and sets deadlines for doing so. A person identified for relief may well have already had an appeal pending when they were identified by CDCR. To read section 1172.75(c) as not providing for trial court jurisdiction would render its time limitations surplusage and a significant percentage of the individuals to whom this statute is expressly directed would be unable to timely benefit from this ameliorative statute. [Editor’s Note: Regarding the trial court’s basis for requesting a resentencing hearing, the Court of Appeal stated in a footnote: “[a]lthough the trial court’s September 1, 2022 minute order does not specify the court’s reason for setting a resentencing hearing after denying the habeas corpus petition, we presume that because Velasco appears eligible for relief under section 1172.75 and because the July 1, 2022 deadline [for CDCR] to designate individuals eligible for resentencing under the provision (§ 1172.75, subd. (b)(2)) had passed, the CDCR notified the trial court at some point before September 1, 2022 that Velasco was eligible under section 1172.75.”]

The trial court erred in holding a resentencing hearing in defendant’s absence without a valid waiver of his presence. A defendant’s right to be present at trial, which is guaranteed by the U.S. and California constitutions, extends to all critical stages of the criminal prosecution and includes sentencing and resentencing. Pursuant to section 977(b)(1)-(2), in all cases in which a felony is charged, the defendant is required to be personally present at the time of the imposition of sentence unless he executed a written waiver of his right to be present or the waiver was properly entered orally on the record. Although the minute order in this case indicates Velasco waived his presence at the September 15, 2022, resentencing hearing, there was no corresponding writing in the record and his counsel stated only that he was “not present before the Court.” There was also no evidence that he or his attorney previously entered a valid waiver on the record. (§ 977(b)(2)(A) & (B).) The error was prejudicial under Chapman v. California (1967) 386 U.S. 18. If Velasco had been present, he might have “offered mitigation factors that arose after his original sentencing; he may have expressed remorse; [or] he may have made a plea for leniency.” As such, the court could not conclude that the error was harmless beyond a reasonable doubt.