Filed 10/23/20 P. v. Valdez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B303230
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA081895)
v.
ANTHONY VALDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Thomas Rubinson, Judge. Reversed and
remanded with directions.
Brian C. McComas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., Deputy Attorney
General, and David A. Wildman, Deputy Attorney General, for
Plaintiff and Respondent.
******
A jury convicted defendant of voluntary manslaughter (as a
lesser included offense to the charged crime of murder), and the
trial court subsequently imposed a prison sentence of 27 years.
Five of those 27 years were because defendant’s 2004 conviction
for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))
constituted a prior serious felony (Id., § 667, subd. (a)(1)). On
appeal, we affirmed defendant’s conviction but “remanded” “the
matter” to the trial court “to consider whether to exercise its
discretion” under the newly enacted Senate Bill 1393, which for
the first time granted trial courts the discretion to strike prior
serious felony enhancements. (Sen. Bill No. 1393 (2017-2018
Reg. Sess.) § 2.) On remand, the trial court held a hearing where
it determined that it would “not” “exercise its discretion to strike
the prior ‘serious’ felony allegation[].” The court conducted this
hearing outside the presence of defendant and his attorney.
In this appeal, defendant argues that the trial court’s
decision to hold the remand hearing we ordered without him or
his counsel present was error. The People agree. So do we.
Where, as here, a trial court is for the first time granted
discretion to strike a portion of a sentence, a criminal defendant
has, as a minimum, a statutory right to be present with the
assistance of counsel to argue in favor of the exercise of that
newly conferred discretion. (People v. Rocha (2019) 32
Cal.App.5th 352, 357-360; People v. Rodriguez (1998) 17 Cal.4th
253, 258-260, superseded by statute on other grounds as stated in
People v. Luna (2003) 113 Cal.App.4th 395, 397.) The trial court
therefore erred. In light of this conclusion, we have no occasion
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to reach defendant’s further arguments that his absence and the
absence of his counsel also violates his constitutional rights.
DISPOSITION
The order reinstating defendant’s original sentence on
remand from our prior appeal is reversed, and the matter
remanded for the trial court to consider whether to exercise its
discretion under Senate Bill 1393 with defendant and his counsel
present.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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