People v. Peyton CA2/6

DISCUSSION

Peyton contends the trial court’s resentencing order must be vacated because he neither appeared at nor waived his presence at the resentencing hearing. We disagree. A defendant has the right to be present at all “ ‘ “critical stages of the criminal prosecution,” ’ ” including resentencing. (People v. Velasco (2023) 97 Cal.App.5th 663, 673 (Velasco).) The defendant may waive the right to be present at resentencing by entering a knowing, voluntary, and intelligent waiver. (People v. Santos (2024) 100 Cal.App.5th 666, 677-678, review granted May 29, 2024, S284341.) Alternatively, counsel may enter such a waiver on a defendant’s behalf so long as there is “some evidence that the defendant understood the right [they were] waiving and the consequences of doing so.” (People v. Davis (2005) 36 Cal.4th 510, 532.) We independently determine whether counsel entered a valid waiver. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.) If we conclude they did not, reversal is required unless we “conclude beyond a reasonable doubt that it did not affect the outcome of the proceeding.” (Velasco, supra, 97 Cal.App.5th at p. 674.) Here, counsel did not enter a valid waiver of Peyton’s…