People v. Mendes CA3

DISCUSSION

On appeal, defendant contends the trial court erred because (1) he did not make a knowing and intelligent waiver of his right to be present at the resentencing hearing and (2) the trial court did not order a supplemental probation report. The People concede both errors but argue the errors were harmless. We cannot agree, concluding that defendant’s absence at the resentencing was not harmless beyond a reasonable doubt, and that we must remand for resentencing. A criminal defendant has a “constitutional and statutory right to be present at [a] sentence modification hearing.” (People v. Robertson (1989) 48 Cal.3d 18, 60; People v. Cutting (2019) 42 Cal.App.5th 344, 348 (Cutting); see also Cal. Const., art. I, § 15; §§ 977, subd. (b)(1), 1193, subd. (a).) We agree with the parties that defendant did not make a knowing and intelligent waiver of his right to be present at his resentencing hearing. We therefore consider whether the error prejudiced defendant. (People v. Penunuri (2018) 5 Cal.5th 126, 163; People v. Davis (2005) 36 Cal.4th 510, 532.) Under the federal Constitution, the error at issue here is evaluated under the harmless beyond a reasonable doubt standard set…