People v. Anderson CA2/1

Filed 1/11/23 P. v. Anderson CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B315325

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA015951)
v.

RAY LAMAR ANDERSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, John J. Lonergan, Jr., Judge. Reversed and
remanded with instructions.
Barbara A. Smith, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
 In 1993, defendant Ray Lamar Anderson was convicted of
one count of first degree murder, in violation of Penal Code1
section 187, subdivision (a), and one count of kidnapping, in
violation of section 207, subdivision (a). He was sentenced to an
aggregate prison term of 25 years to life, plus 17 years 8 months.
We affirmed the judgment of conviction in an unpublished
opinion.
In May 2020, Anderson filed a petition for resentencing
under section 1170.95.2 In the petition, Anderson claimed he was
entitled to resentencing under certain newly added amendments
to the Penal Code that limit the circumstances under which a
defendant may be convicted of first degree murder via the
felony-murder rule. The trial court appointed counsel for
Anderson, issued an order to show cause, and held a hearing at
which it heard arguments from counsel and denied the petition.
Although Anderson’s appointed counsel attended the hearing at
which the court denied the petition, Anderson was not present at
that hearing.

1 Undesignated statutory citations are to the Penal Code.
2 We note that on June 30, 2022, section 1170.95 was
renumbered, without substantive change, as section 1172.6. (See
Stats. 2022, ch. 58, §§ 10, 47 [Assembly Bill No. 200, which
renumbered § 1170.95 as § 1172.6, and provided that the statute
took effect immediately on June 30, 2022]; People v. Delgadillo
(Dec. 12, 2022, S266305) --- Cal.5th ---, ---, fn. 3 [2022 WL
17748063, at p. *2, fn. 3] [noting that Assembly Bill No. 200
renumbered former § 1170.95 to § 1172.6 without any
substantive change].) For the sake of clarity and consistency,
this opinion refers to former section 1170.95 when discussing the
statute governing Anderson’s resentencing petition.

2
 On appeal, we hold the trial court violated Anderson’s right
to attend the resentencing hearing, which is guaranteed by the
Sixth and Fourteenth Amendments to the federal Constitution
and article 1, section 15 of the state Constitution. Furthermore,
we cannot conclude that this error was harmless under the
standard of prejudice applicable to violations of the federal
Constitution. Consequently, we reverse the court’s order denying
the petition, and instruct the court to conduct a new resentencing
hearing at which Anderson may (a) appear and present new or
additional evidence in support of his petition, or (b) provide a
knowing, intelligent, and voluntary waiver of his right to attend
the hearing.

PROCEDURAL BACKGROUND3
We summarize only those facts that are pertinent to our
disposition of this appeal.
On August 5, 1992, the People filed an information
charging Anderson with one count of murder, in violation of

3 Our procedural background is derived in part from
admissions made in the parties’ appellate briefing. (See Williams
v. Superior Court (1964) 226 Cal.App.2d 666, 668, 674 [criminal
case in which the Court of Appeal stated: “ ‘An express
concession or assertion in a brief is frequently treated as an
admission of a legal or factual point, controlling in the disposition
of the case.’ ”]; Artal v. Allen (2003) 111 Cal.App.4th 273, 275,
fn. 2 [“ ‘[B]riefs and argument . . . are reliable indications of a
party’s position on the facts as well as the law, and a reviewing
court may make use of statements therein as admissions against
the party.’ ”].) Additionally, we previously took judicial notice of
the record from Anderson’s direct appeal in case No. B078721;
portions of our procedural background are taken from that prior
record as well. (Evid. Code, §§ 452, subd. (d), 459.)

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section 187, subdivision (a), and one count of kidnapping, in
violation of section 207, subdivision (a). In connection with the
murder charge, the People averred Anderson perpetrated the
murder in the course of committing a kidnapping within the
meaning of section 190.2, subdivision (a)(17), and that the
murder involved the infliction of torture within the meaning of
section 190.2, subdivision (a)(18). For both offenses, the People
alleged that a principal was armed with a firearm for the
purposes of section 12022, subdivision (a)(1).
On April 27, 1993, a jury found Anderson guilty of
kidnapping and first degree murder. In connection with both
offenses, the jury found true that a principal was armed with a
firearm for the purposes of section 12022, subdivision (a)(1).
Conversely, the jury found not true the allegations that:
(1) Anderson perpetrated the murder in the course of committing
a kidnapping within the meaning of section 190.2,
subdivision (a)(17); and (2) the murder involved the infliction of
torture within the meaning of section 190.2, subdivision (a)(18).
On June 24, 1993, the trial court sentenced Anderson to an
aggregate prison term of 25 years to life, plus 17 years 8 months.
On February 28, 1995, we affirmed the judgment in an
unpublished opinion.4
On May 12, 2020, Anderson filed a petition for resentencing
under section 1170.95. In the petition, Anderson asserted he was
convicted of first degree murder under the felony-murder rule but
could not now be so convicted because of changes to section 189
that became effective on January 1, 2019. In particular,

4 We, sua sponte, take judicial notice of our prior appellate
opinion. (Evid. Code, §§ 452, subd. (d), 459.)

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Anderson claimed that he was not “the actual killer”; he “did not,
with the intent to kill, aid, abet, counsel, command, induce,
solicit, request, or assist the actual killer in the commission of
murder in the first degree”; and he “was not a major participant
in the felony or . . . did not act with reckless indifference to
human life during the course of the crime or felony.” The trial
court later appointed counsel to represent Anderson.
On November 20, 2020, the People filed a response to
Anderson’s petition. The factual and procedural history section
of the People’s response incorporated by reference the following
excerpt of the opinion from Anderson’s direct appeal:
Early one morning (about 8:00 a.m.), Gloria
White heard four or five gunshots, looked outside and
saw Cedric Davis (the victim) stumbling out of a
garage at Shirley Vanless’s house. Davis was
handcuffed, covered with blood and pleading,
“Someone help me. Please call the police.” As White
continued to watch, Davis went to Vanless’s front
door and fell in the doorway—followed by Anderson
(sporting a distinctive, diamond-design haircut) and
another man on his heels, both armed with guns.
Anderson and the other man grabbed Davis and
forced him into a blue car parked in Vanless’s
driveway, then drove off. White later identified
Anderson and had “no doubt” that he was one of the
men who took Davis away.[5]

5 In their brief, the People omitted a footnote that appears
at the end of this textual paragraph in the appellate opinion.
This discrepancy has no impact on the instant appeal.

5
 Meanwhile, Shirley Vanless came out of her
house, asking, “What the fuck is going on here?”
Vanless had been in bed with Jacob Howard when
she heard a noise “like somebody . . . raping
somebody in [the] garage” and she went outside
where she saw essentially the same thing as White—
a man with blood on his face calling for help. Vanless
checked the garage but could not see anything
because it was too dark. However, she heard and
then saw Anderson, whom she recognized because
she knew him, and she saw the blue car driving off,
with Anderson in the passenger seat and Davis in the
back. Other witnesses also heard or saw some or all
of these events (gunshots, voices in the garage, a
staggering victim, two men putting the victim in the
car) but they were unable to identify Anderson.
At about 9:30 a.m., Xanthia Garcia (who was at
her house some distance from the Vanless home)
heard three shots, looked outside and saw two men
driving off in a blue car. She went outside, found a
body and called 911. When the police arrived, they
found Davis’s dead body, still handcuffed.
The police went to Vanless’s house, where they
found a trail of blood leading from Vanless’s driveway
to her front door. A bloody jacket (with a small
amount of cocaine in the pocket) was found on the
walkway and a lot of bloody clothing was found in the
garage. Later, the police found a “Mobil Torrance
Refinery” badge at Vanless’s house (Davis worked at
the Mobil Refinery in Torrance). That night, the

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 burned remains of Davis’s car were found a mile or
two away from Vanless’s house.
A few days later, Daniel Jackson (another
witness) identified Anderson and told the police
about what he had seen. Anderson was arrested and
charged with murder . . . .
On February 19, 2021, the trial court found that Anderson
had stated a prima facie case and issued an order to show cause
on the petition.
On May 19, 2021 and on June 16, 2021, Anderson’s
appointed counsel filed briefing concerning his petition for
resentencing. The factual and procedural history section of each
brief states the following: “The petitioner stipulates to the
respondent’s factual history and the procedural history for the
purposes of this motion.”
The trial court held a hearing on the order to show cause on
July 23, 2021. It is undisputed that Anderson did not attend this
hearing. (See Discussion, parts B–C, post.) After the People and
defense counsel presented argument, the court denied the
petition. In issuing its ruling, the court noted the People had
proceeded under a felony-murder theory at trial, “so the focus . . .
is whether or not [Anderson] was a major participant in the
underlying felony and acted with reckless indifference [to] human
life.” The court also stated, “Anderson is a major participant
conducting and acting in a manner either just as equal to the
accomplice and having a gun, dragging the victim into a car,
driving off, [and] going to another location.” The court added that
regardless of “who fired the gun, [Anderson] . . . act[ed] with
reckless indifference to human life throughout this ordeal as long
as it took.”

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 On September 17, 2021, Anderson appealed the order
denying his resentencing petition.

DISCUSSION

A. Law Governing Section 1170.95 Petitions
“ ‘Effective January 1, 2019, the Legislature passed
Senate Bill 1437 “to amend the felony murder rule and the
natural and probable consequences doctrine, as it relates to
murder . . . .” ’ ” (People v. Cooper (2022) 77 Cal.App.5th 393, 409
(Cooper).) “As amended, the law defining malice provides that
except for first degree felony murder, ‘in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.’ [Citations.]” (People v. Basler (2022)
80 Cal.App.5th 46, 54 (Basler), quoting § 188, subd. (a)(3).)
“Senate Bill 1437 amended section 189 to provide that a
defendant who was not the actual killer or did not have an intent
to kill is not liable for felony murder unless the defendant ‘was a
major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.’ [Citations.]” (See Cooper, at p. 411, quoting
§ 189, subd. (e)(3).) “ ‘In addition to substantively amending
sections 188 and 189 . . . , Senate Bill 1437 added section 1170.95,
which provides a procedure for convicted murderers who could
not be convicted under the law as amended to retroactively seek
relief.’ [Citation.]” (Cooper, at p. 409.)
“To pursue relief under section 1170.95, a petitioner ‘file[s]
a petition with the court that sentenced the petitioner to have the
petitioner’s murder . . . conviction vacated and to be resentenced
on any remaining counts.’ [Citation.]” (Cooper, supra,

8
77 Cal.App.5th at p. 411.) “The petition must declare that the
requirements for relief are met,” including that the petitioner
“could no longer be convicted of murder” under the amendments
added by Senate Bill No. 1437. (See Cooper, at pp. 398, 411.)
“Upon filing ‘a facially sufficient petition,’ a petitioner is entitled
to the appointment of counsel, and the parties then brief whether
the petitioner has made a prima facie showing of entitlement to
relief. [Citations.] If the trial court concludes the petitioner has
made the required prima facie showing, it must issue an order to
show cause.” (Id. at p. 411.)
“After an order to show cause issues, the trial court must
‘hold a hearing to determine whether to vacate the murder . . .
conviction and to recall the sentence and resentence the
petitioner on any remaining counts . . . .’ [Citation.]” (Cooper,
supra, 77 Cal.App.5th at p. 411.) “At that [resentencing] hearing,
the prosecution has the burden to prove beyond a reasonable
doubt that the petitioner is guilty of murder . . . under the
amended laws.” (See Basler, supra, 80 Cal.App.5th at p. 55; see
also id. at pp. 59–60, 62 [referring to this proceeding as a
“resentencing hearing”].) “The prosecutor and the petitioner
may . . . offer new or additional evidence to meet their respective
burdens” at this resentencing hearing. (See Stats. 2018, ch. 1015,
§ 4 [initial version of § 1170.95, subd. (d)(3) added by Senate Bill
No. 1437]; Stats. 2021, ch. 551, § 2 [version of § 1170.95, subd.
(d)(3) as amended by Senate Bill No. 775, which retained the
quoted text].)

B. The Parties’ Arguments
In his opening brief, Anderson contends, “The trial court
erred prejudicially by [(1)] conducting [Anderson’s] evidentiary
hearing in his absence, without his waiver of his right to be

9
present, and [(2)] allowing counsel to stipulate to a very brief
factual summary from the opinion on his direct appeal as the
only evidence to be considered[ ] to determine if he was a major
participant acting with reckless indifference to human life in the
underlying felony conviction.”
Regarding the first claim of error, Anderson argues in his
opening brief that he had a “state and federal constitutional
right” to be present at the hearing on the order to show cause,
“given the impact of his absence upon his ability to defend
himself, including communicating with defense counsel, and
offering testimony on his own behalf . . . .” Anderson asserts this
violation of his constitutional rights constitutes reversible error
under the “harmless beyond a reasonable doubt” standard
announced in Chapman v. California (1967) 386 U.S. 18.
In connection with the second appellate claim, Anderson
relies in his opening brief on certain amendments the Legislature
made to section 1170.95 after the trial court denied his petition.
In particular, Anderson maintains that Cooper, supra,
77 Cal.App.5th 393, construed the amendments made by Senate
Bill No. 775 (effective on January 1, 2022)6 as “preclud[ing] the
use of the factual summary [from] the appellate opinion, unless
the defendant acquiesces in its use.” (Citing Cooper, supra,
77 Cal.App.5th at p. 400, fn. 9.) Anderson further argues Senate
Bill No. 775’s “fundamental changes and clarifications to the
scope and procedures for adjudicating” resentencing petitions
“apply retroactively to all cases not yet final on appeal,” including
the instant case.

6 (See Cooper, supra, 77 Cal.App.5th at p. 398, fn. 2 [noting
that Senate Bill No. 775 “went into effect on January 1, 2022”].)

10
 In the respondent’s brief, the Attorney General “agrees that
[Anderson’s] absence from the evidentiary hearing requires
remand for a new evidentiary hearing where [Anderson] is
provided the opportunity to appear or waive his appearance.”
Additionally, the Attorney General argues that we need not
decide whether the trial court’s “error must be assessed for
prejudice under Chapman because the error in this case was not
harmless” under the “test set forth in People v. Watson (1956)
46 Cal.2d 818” for errors of state law. At no point in the
respondent’s brief does the Attorney General address Anderson’s
other claim that the trial court erred in accepting defense
counsel’s stipulation permitting the court to consider the factual
summary from the prior appellate opinion.
In lieu of a reply brief, Anderson submitted a letter
“urg[ing] this court to accept respondent’s concession[s]” that
(1) “the trial court erred reversibly [by] holding [Anderson’s]
Penal Code section 1170.95 OSC hearing in [his] absence and
without his personal waiver of his right to be present,” and
(2) this error “requires reversal of the denial of his petition, and a
remand for a new evidentiary hearing on his petition.” In the
letter, Anderson does not renew his argument that the trial court
erred in accepting his attorney’s stipulation concerning the prior
appellate opinion’s factual summary.

C. We Reverse the Denial of Anderson’s Section 1170.95
Petition and Remand the Matter for a New
Resentencing Hearing
As a preliminary matter, we observe the Attorney General
does not identify explicitly the statutory or constitutional basis
for Anderson’s entitlement to attend the resentencing hearing.
By conceding that a remand is proper because “the error in this

11
case was not harmless under the . . . Watson standard” generally
applicable to “ ‘errors of state law[,]’ ” the Attorney General
intimates the trial court violated some provision of state law by
conducting the hearing in Anderson’s absence. Further, as we
noted in Discussion, part B, ante, Anderson maintains he had a
“state and federal constitutional right” to attend the hearing.
In determining whether Anderson had a legal right to
attend the resentencing hearing, we apply a de novo standard of
review. (See In re Lugo (2008) 164 Cal.App.4th 1522, 1535
[“[W]hen the issue raised on appeal . . . is purely legal, such as
the proper interpretation and application of a statute or
constitutional provision, our review is de novo.”].)
The Court of Appeal’s decision in Basler, supra,
80 Cal.App.5th 46, is instructive on whether Anderson had a
right to attend the evidentiary hearing. There, the court held
that a section 1170.95 petitioner “had state and federal
constitutional rights to be personally present at his . . .
resentencing hearing, or else provide a knowing, intelligent and
voluntary waiver of those rights.” (See Basler, at pp. 56–59.)
At the outset of its analysis, Basler explained that the
Sixth and Fourteenth Amendments to the federal Constitution
and article 1, section 15 of the state Constitution guarantee a
defendant the “ ‘right to be personally present in court “where
necessary to protect the defendant’s opportunity for effective
cross-examination, or to allow him to participate at a critical
stage and enhance the fairness of the proceeding.” ’ [Citations.]”
(See Basler, supra, 80 Cal.App.5th at p. 57.) According to the
Basler court, a section 1170.95 resentencing hearing constitutes a
critical stage to which the defendant’s right to attend “attache[s]”
because that proceeding is “ ‘akin to a plenary sentencing

12
hearing[.]’ ” (See Basler, at pp. 57–58.) Basler explained the trial
court must “ ‘determine [at that hearing] whether to vacate the
murder . . . conviction and to recall the sentence and resentence
the petitioner on any remaining counts in the same manner as if
the petitioner had not previously been sentenced,’ ” “the
prosecution b[ears] the burden to prove ‘beyond a reasonable
doubt’ that [the petitioner] is ineligible for resentencing,” and
“[t]he statute authorizes both parties to ‘offer new or additional
evidence to meet their respective burdens.’ [Citation.]” (See
ibid.)
Additionally, the Basler court observed its holding is
consistent with case law recognizing that a postconviction
resentencing hearing under Proposition 47 constitutes a critical
stage to which the petitioner’s Sixth Amendment right to counsel
attaches. (See Basler, supra, 80 Cal.App.5th at p. 58, citing
People v. Rouse (2016) 245 Cal.App.4th 292, 299–300; see also
People v. Hernandez (2017) 10 Cal.App.5th 192, 196–197
[“Proposition 47 reclassified certain drug- and theft-related
offenses as misdemeanors, except where the defendant has one or
more disqualifying prior convictions . . . . [¶] . . . [¶]
Proposition 47 also added section 1170.18, which permits a
person who is currently ‘serving a sentence’ for a conviction of a
reclassified offense to request to be resentenced to a
misdemeanor.”].) The Basler court further noted its “conclusion
is supported by . . . People v. Lewis (2021) 11 Cal.5th 952,”
because although “[t]he Lewis court observed there was no
constitutional right to appointed counsel in state postconviction
proceedings,” Lewis explained that an indigent prisoner seeking
postconviction relief may be entitled to counsel if he or she
“ ‘ “states a prima facie case leading to issuance of an order to

13
show cause . . . .” ’ ” (See Basler, at p. 58, quoting Lewis, supra,
11 Cal.5th at p. 973.) Basler explained that because the
section 1170.95 petitioner in that case had “stated facts sufficient
to state a prima facie case warranting an evidentiary hearing,”
that hearing “implicat[ed] his Sixth Amendment rights . . . .”
(See Basler, at pp. 58–59.)
We find Basler’s reasoning persuasive. In accordance with
the doctrine of stare decisis, we adhere to Basler’s holding that
the Sixth and Fourteenth Amendments to the United States
Constitution and article 1, section 15 of the California
Constitution (1) guarantee a petitioner the right to attend a
section 1170.95 resentencing hearing, and (2) bar a trial court
from proceeding in the petitioner’s absence unless he or she has
provided a knowing, intelligent, and voluntary waiver of that
right. (See Basler, supra, 80 Cal.App.5th at pp. 57, 59; see also
The MEGA Life & Health Ins. Co. v. Superior Court (2009) 172
Cal.App.4th 1522, 1529 [“We, of course, are not bound by the
decision of a sister Court of Appeal. [Citation.] But ‘[w]e respect
stare decisis, however, which serves the important goals of
stability in the law and predictability of decision. Thus, we
ordinarily follow the decisions of other districts without good
reason to disagree.’ ”].)
Next, the Attorney General admits: “The record shows that
[Anderson] was not afforded the opportunity to appear” at the
resentencing hearing and “nothing in the record show[s] that his
counsel spoke to him prior to the hearing . . . .” The Attorney
General further states: “The two briefs filed by [Anderson’s]
counsel in the superior court do not indicate they were served on
[Anderson]” and “nothing in the record suggest[s Anderson]
expressed any desire to waive his right to be present at the

14
hearing.” Anderson does not challenge any of these assertions,
meaning that he tacitly agrees with them.7 Accordingly, the
uncontested facts demonstrate that Anderson was deprived of his
federal and state constitutional rights to attend the hearing.
Turning to the issue of prejudice, “[a] violation of the
federal constitutional right [to personally attend a resentencing
hearing] must be assessed for prejudice under
Chapman[ citation]; we ask whether [the petitioner’s] absence
was harmless beyond a reasonable doubt.” (See Basler, supra,
80 Cal.App.5th at p. 59.)
The resentencing hearing was an opportunity for the trial
court to consider new or additional evidence on the issue of
Anderson’s “actions and mens rea” during the incidents in
question in order to determine whether the prosecution had
established, beyond a reasonable doubt, that he was “ ‘a major
participant in the underlying felony who acted with reckless
indifference to human life.’ [Citations.]”8 Because the Attorney

7 (See Reygoza v. Superior Court (1991)
230 Cal.App.3d 514, 519 & fn. 4 (Reygoza) [criminal case in which
the Court of Appeal assumed that an assertion made by
respondent was correct because the “defendant did not dispute
respondent’s claim in his reply”]; Rudick v. State Bd. of
Optometry (2019) 41 Cal.App.5th 77, 89–90 (Rudick) [concluding
that the appellants made an implicit concession by “failing to
respond in their reply brief to the [respondent’s] argument on
th[at] point”].)
8 (See Basler, supra, 80 Cal.App.5th at pp. 54, 59; see also
Cooper, supra, 77 Cal.App.5th at pp. 411, 417–418 [discussing the
burden of proof at a § 1170.95 resentencing hearing, and
indicating that whether a petitioner acted with reckless
indifference to human life calls for an analysis of the petitioner’s
conduct and mental state, given that the petitioner’s “knowledge

15
General maintains that Anderson was “ ‘a participant in the
events in question[,]’ ” Anderson “ ‘may well have had something
to say’ ” at the hearing concerning his actions and mental state.9
Furthermore, the trial court may have been receptive to new or
additional evidence concerning the circumstances under which
the victim was killed, given that the court suggested in its oral
ruling it was unsure who “fired the gun . . . .”10
Also, the Attorney General makes the following
representations, which we deem to be true because Anderson
does not contest them:11 Anderson “had not testified at his
trial[,] [citation] [t]he judge who decided [Anderson’s] petition
was not the same judge who presided over [Anderson’s] trial,”
and “[t]he limited record provides no clue whether [Anderson],
had he been given the opportunity to hear the People’s evidence,
would have decided to testify and present other evidence.”
Under these circumstances, we cannot conclude beyond a
reasonable doubt that had Anderson been afforded an
opportunity to attend the resentencing hearing, the trial court
would still have denied his section 1170.95 petition. (Cf. Basler,
supra, 80 Cal.App.5th at pp. 59–60 [concluding that a violation of
a petitioner’s right to attend a § 1170.95 resentencing hearing

of the presence of weapons” and “actual use of a weapon” are
relevant factors].)
9 (See Basler, supra, 80 Cal.App.5th at p. 59.)
10 Specifically, the trial court stated: “Irregardless [sic] of
who fired the gun, [Anderson] is acting with reckless indifference
to human life throughout this ordeal as long as it took.”
11 (See Reygoza, supra, 230 Cal.App.3d at p. 519 & fn. 4;
Rudick, supra, 41 Cal.App.5th at pp. 89–90.)

16
was not harmless under Chapman because, even though the
petitioner did not make an offer of proof as to what evidence he
would have presented at the hearing, the Court of Appeal found
that petitioner “ ‘may well have had something to say’ ” regarding
his conduct and mens rea].)
For all these reasons, we reverse the order denying
Anderson’s section 1170.95 petition, and instruct the trial court
to hold a new resentencing hearing at which Anderson may
(a) appear and offer new or additional evidence, or (b) provide a
knowing, intelligent, and voluntary waiver of his right to attend
the hearing. (See Basler, supra, 80 Cal.App.5th at pp. 60, 62
[utilizing a similar disposition].)
Lastly, we decline to pass upon the validity of defense
counsel’s stipulation permitting the trial court to utilize the
factual summary from the prior appellate opinion. In his opening
brief, Anderson seems to argue that because he was deprived of
his right to attend the resentencing hearing, the stipulation
infringed his right to present testimony that supplemented
and/or differed from the prior opinion’s factual summary.
Because our disposition of this appeal provides Anderson with an
opportunity to present evidence at a new resentencing hearing, it
is not altogether clear to us that the validity of the stipulation
remains a matter of contention upon remand. We thus express
no opinion on the legality of the stipulation. (See People v.
Watson (2021) 64 Cal.App.5th 474, 489 [recognizing “the well-
settled rule that courts should ‘avoid advisory opinions on
abstract propositions of law’ ”].)

17
 DISPOSITION
We reverse the July 23, 2021 order denying defendant
Ray Lamar Anderson’s petition for resentencing, and remand the
matter to the trial court to hold a new resentencing hearing at
which Anderson may (a) appear and present new or additional
evidence in support of his petition, or (b) provide a knowing,
intelligent, and voluntary waiver of his presence.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

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