Filed 1/14/25 P. v. Lara CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083164
v. (Super.Ct.No. INF1501389)
DAVID DELEON LARA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge.
(Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Reversed and remanded with directions.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Paige B. Hazard and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1 INTRODUCTION
Defendant and appellant David DeLeon Lara appeals from a resentencing order
after the matter was remanded in his prior appeal. He contends the trial court erred by:
(1) resentencing him in his absence, without a valid waiver; and (2) failing to correctly
award him presentence custody credits. We agree and reverse.
PROCEDURAL BACKGROUND
A jury convicted defendant of first degree premeditated murder (Pen. Code1,
§ §187, 189, subd. (a)) and returned true findings that he personally discharged a firearm
in the commission of the murder (§ 12022.53, subds. (d), (e)), and intentionally killed the
victim under the special circumstance of lying in wait (§ 190.2, subd. (a)(15)). (People
v. Lara (June 28, 2022, E074161) [nonpub. opn.] (Lara).)2 On November 1, 2019, the
court sentenced defendant to a total of 50 years to life in state prison, consisting of 25
years to life on the murder conviction and a consecutive 25 years to life on the firearm
enhancement. Because he was only 16 years old when he committed the murder,
defendant was not sentenced to life without the possibility of parole (LWOP) for the
murder based on the special circumstance finding, which otherwise would have mandated
an LWOP sentence. (Ibid.)
1 All further statutory references will be to the Penal Code unless otherwise indicated. 2 By order dated April 24, 2024, this court granted defendant’s request that we take judicial notice of the case file from his prior appeal. (Evid. Code, §§ 452, 459.) 2 Defendant appealed, and this court rejected his claim that the matter had to be
remanded for resentencing so the trial court could consider whether to impose a lesser
firearm enhancement on the murder charge. (People v. Lara, supra, E074161.)
The California Supreme Court granted review and transferred the matter back to
this court with directions to vacate our decision and reconsider the matter in light of
People v. Tirado (2022) 12 Cal.5th 688 (Tirado). (People v. Lara, supra, E074161.) In
Tirado, the Supreme Court concluded that trial courts have discretion to strike section
12022.53 firearm enhancements in the interest of justice (§ 12022.53, subd. (h)) and to
impose no punishment or punishment on a lesser section 12022.53 enhancement if the
elements of the lesser enhancement were alleged and found true. (Tirado, supra,
12 Cal.5th 688 at pp. 696-700 & fn. 13.)
Pursuant to the Supreme Court’s order, we vacated our decision and remanded the
matter for resentencing for the trial court to consider, for the first time, whether to
exercise its discretion to impose a lesser term on a lesser firearm enhancement under
section 12022.53, subdivisions (b) (10 years) or (c) (20 years), instead of the 25-year-to-
life term it imposed on the firearm enhancement under section 12022.53, subdivisions (d)
and (e). We remanded for a full resentencing and modified the judgment to award
defendant a total of 503 days of presentence custody credits (196 more than he was
awarded on November 1, 2019.) (People v. Lara, supra, E074161.)
On December 14, 2023, the court held a resentencing hearing. Defendant was not
present but was represented by counsel. The court asked counsel if they were going to
3 have the hearing “outside [defendant’s] presence.” Defense counsel responded in the
affirmative, and the court asked if defendant had agreed to that. Defense counsel
responded, “Yes, Your Honor. I did speak with him last Thursday on the phone. And he
indicated to me that it was fine for me to go forward with the hearing. He did not wish to
be transported.” The court proceeded with the hearing.
After hearing argument from counsel, the court declined to strike or reduce the
firearm enhancement and stated that the original sentence of 50 years to life “stands.” In
declining to reduce or strike the enhancement, the court said it considered the Miller3
factors, which included defendant’s age at the time of the offense, his adverse social
history, his family and friend support system, his immaturity and failure to appreciate
risks and consequences, his reduced culpability due to his age, and his remorse for the
crime. The court noted that the crime was sophisticated and planned and involved rival
gangs, and that defendant had been “a gangster, since he’s been a baby, just about.” The
court stated that the offense was cruel, and that it did not think the sentence was cruel and
unusual punishment.
DISCUSSION
I. The Trial Court Erred in Conducting The Resentencing Hearing in Defendant’s
Absence, Without a Valid Waiver
Defendant argues it was error to conduct the resentencing hearing in his absence,
without a valid waiver. The People concede that defense counsel’s waiver of defendant’s
3 Miller v. Alabama (2012) 567 U.S. 460.
4 presence was insufficient. We agree and conclude the matter must be remanded for
another hearing to allow defendant to be present or to execute a valid waiver.
A. The Court Erred in Proceeding in Defendant’s Absence
A criminal defendant’s right to be personally present at trial is guaranteed by the
Sixth and Fourteenth Amendments to the United States Constitution, as well as article I,
section 15 of the California Constitution, and sections 977 and 1043. (People v.
Concepcion (2008) 45 Cal.4th 77, 81.) The right extends to all critical stages of a
criminal prosecution, including sentencing and resentencing. (People v. Cutting (2019)
42 Cal.App.5th 344, 348 (Cutting) [resentencing is a critical stage because the trial court
may reconsider the entire sentence].) Counsel may waive defendant’s presence if there is
evidence that defendant understood the right he was waiving and the consequences of
doing so. (People v. Davis (2005) 36 Cal.4th 510, 532 (Davis).)
Where, as here, the waiver is communicated through defense counsel (rather than
personally by the defendant), “there must be some evidence” in the record “that the
defendant understood the right [to be present that] he was waiving and the consequences
of doing so.” (Davis, supra, 36 Cal.4th at p. 532.) The record in this case reveals no
evidence that defendant understood his right to be present, that he was waiving that right,
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Filed 1/14/25 P. v. Lara CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083164
v. (Super.Ct.No. INF1501389)
DAVID DELEON LARA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge.
(Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Reversed and remanded with directions.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Paige B. Hazard and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1 INTRODUCTION
Defendant and appellant David DeLeon Lara appeals from a resentencing order
after the matter was remanded in his prior appeal. He contends the trial court erred by:
(1) resentencing him in his absence, without a valid waiver; and (2) failing to correctly
award him presentence custody credits. We agree and reverse.
PROCEDURAL BACKGROUND
A jury convicted defendant of first degree premeditated murder (Pen. Code1,
§ §187, 189, subd. (a)) and returned true findings that he personally discharged a firearm
in the commission of the murder (§ 12022.53, subds. (d), (e)), and intentionally killed the
victim under the special circumstance of lying in wait (§ 190.2, subd. (a)(15)). (People
v. Lara (June 28, 2022, E074161) [nonpub. opn.] (Lara).)2 On November 1, 2019, the
court sentenced defendant to a total of 50 years to life in state prison, consisting of 25
years to life on the murder conviction and a consecutive 25 years to life on the firearm
enhancement. Because he was only 16 years old when he committed the murder,
defendant was not sentenced to life without the possibility of parole (LWOP) for the
murder based on the special circumstance finding, which otherwise would have mandated
an LWOP sentence. (Ibid.)
1 All further statutory references will be to the Penal Code unless otherwise indicated. 2 By order dated April 24, 2024, this court granted defendant’s request that we take judicial notice of the case file from his prior appeal. (Evid. Code, §§ 452, 459.) 2 Defendant appealed, and this court rejected his claim that the matter had to be
remanded for resentencing so the trial court could consider whether to impose a lesser
firearm enhancement on the murder charge. (People v. Lara, supra, E074161.)
The California Supreme Court granted review and transferred the matter back to
this court with directions to vacate our decision and reconsider the matter in light of
People v. Tirado (2022) 12 Cal.5th 688 (Tirado). (People v. Lara, supra, E074161.) In
Tirado, the Supreme Court concluded that trial courts have discretion to strike section
12022.53 firearm enhancements in the interest of justice (§ 12022.53, subd. (h)) and to
impose no punishment or punishment on a lesser section 12022.53 enhancement if the
elements of the lesser enhancement were alleged and found true. (Tirado, supra,
12 Cal.5th 688 at pp. 696-700 & fn. 13.)
Pursuant to the Supreme Court’s order, we vacated our decision and remanded the
matter for resentencing for the trial court to consider, for the first time, whether to
exercise its discretion to impose a lesser term on a lesser firearm enhancement under
section 12022.53, subdivisions (b) (10 years) or (c) (20 years), instead of the 25-year-to-
life term it imposed on the firearm enhancement under section 12022.53, subdivisions (d)
and (e). We remanded for a full resentencing and modified the judgment to award
defendant a total of 503 days of presentence custody credits (196 more than he was
awarded on November 1, 2019.) (People v. Lara, supra, E074161.)
On December 14, 2023, the court held a resentencing hearing. Defendant was not
present but was represented by counsel. The court asked counsel if they were going to
3 have the hearing “outside [defendant’s] presence.” Defense counsel responded in the
affirmative, and the court asked if defendant had agreed to that. Defense counsel
responded, “Yes, Your Honor. I did speak with him last Thursday on the phone. And he
indicated to me that it was fine for me to go forward with the hearing. He did not wish to
be transported.” The court proceeded with the hearing.
After hearing argument from counsel, the court declined to strike or reduce the
firearm enhancement and stated that the original sentence of 50 years to life “stands.” In
declining to reduce or strike the enhancement, the court said it considered the Miller3
factors, which included defendant’s age at the time of the offense, his adverse social
history, his family and friend support system, his immaturity and failure to appreciate
risks and consequences, his reduced culpability due to his age, and his remorse for the
crime. The court noted that the crime was sophisticated and planned and involved rival
gangs, and that defendant had been “a gangster, since he’s been a baby, just about.” The
court stated that the offense was cruel, and that it did not think the sentence was cruel and
unusual punishment.
DISCUSSION
I. The Trial Court Erred in Conducting The Resentencing Hearing in Defendant’s
Absence, Without a Valid Waiver
Defendant argues it was error to conduct the resentencing hearing in his absence,
without a valid waiver. The People concede that defense counsel’s waiver of defendant’s
3 Miller v. Alabama (2012) 567 U.S. 460.
4 presence was insufficient. We agree and conclude the matter must be remanded for
another hearing to allow defendant to be present or to execute a valid waiver.
A. The Court Erred in Proceeding in Defendant’s Absence
A criminal defendant’s right to be personally present at trial is guaranteed by the
Sixth and Fourteenth Amendments to the United States Constitution, as well as article I,
section 15 of the California Constitution, and sections 977 and 1043. (People v.
Concepcion (2008) 45 Cal.4th 77, 81.) The right extends to all critical stages of a
criminal prosecution, including sentencing and resentencing. (People v. Cutting (2019)
42 Cal.App.5th 344, 348 (Cutting) [resentencing is a critical stage because the trial court
may reconsider the entire sentence].) Counsel may waive defendant’s presence if there is
evidence that defendant understood the right he was waiving and the consequences of
doing so. (People v. Davis (2005) 36 Cal.4th 510, 532 (Davis).)
Where, as here, the waiver is communicated through defense counsel (rather than
personally by the defendant), “there must be some evidence” in the record “that the
defendant understood the right [to be present that] he was waiving and the consequences
of doing so.” (Davis, supra, 36 Cal.4th at p. 532.) The record in this case reveals no
evidence that defendant understood his right to be present, that he was waiving that right,
or that he understood the consequences of doing so. It only shows defense counsel’s
representation that he spoke with defendant on the phone, and defendant indicated that “it
was fine for [counsel] to go forward with the hearing.” As the People concede, defendant
did not knowingly and intelligently waive his right to presence at the hearing. (Ibid.) We
5 conclude that the court erred in conducting the resentencing hearing in the defendant's
absence without a valid waiver from defendant of his right to be present.
B. Defendant’s Absence From the Hearing Was Not Harmless Error
Because the trial court’s error resulted in a violation of defendant’s federal
constitutional right to be present at a critical stage of the proceedings, we review the error
under Chapman v. California (1967) 386 U.S. 18, 23 to determine if it was harmless
beyond a reasonable doubt. (Cutting, supra, 42 Cal.App.5th at p. 348.) “Under that
standard, the error ‘may be deemed harmless only if we can conclude beyond a
reasonable doubt that the deprivation did not affect the outcome of the proceeding.’”
(Ibid.)
Given the nature and scope of resentencing under Tirado, had defendant been
present at the hearing, he could have offered evidence or input on a number of factors
regarding his background, character, post-sentencing conduct, and prospects in an effort
to persuade the court to exercise its discretion to strike or impose a lesser enhancement
under section 12022.53. (See People v. Rocha (2019) 32 Cal.App.5th 352, 359-360.)
Thus, as the People concede, a remand is appropriate.
Defendant points out that the parties disagree as to the appropriate remedy. The
People ask this court to “conditionally remand” the matter for the court to conduct a
resentencing hearing, at which defendant chooses to be present or execute a valid waiver.
Without citing any authority, they then contend that if he chooses to execute a valid
waiver, the court “should reinstate its previous resentencing order.” We disagree.
6 Because the court erred, defendant is entitled to have the matter remanded for the court to
conduct a new, full resentencing hearing at which he must be present, unless his presence
is validly waived. (See Cutting, supra, 42 Cal.App.5th at pp. 350-351; see also People v.
Velasco (2023) 97 Cal.App.5th 663, 674-675; People v. Guerrero (2022) 76 Cal.App.5th
329, 338.)
II. The Court Erred in Failing to Recalculate Defendant’s Custody Credits
Defendant also contends the trial court erred in failing to recalculate his custody
credits as of the time of resentencing. The People concede and note that the court will be
able to recalculate defendant’s custody credits upon remand. We agree.
It is the duty of the trial court to calculate custody credits while imposing
sentence. (§ 2900.5, subd. (d).) When a defendant is resentenced after a judgment is
modified during the term of imprisonment, he must receive credit for the time already
served. (§ 2900.1; People v. Buckhalter (2001) 26 Cal.4th 20, 23.) As defendant points
out, the abstract of judgment filed after the resentencing hearing lists the same number of
custody credits that were awarded at the original sentencing hearing. Since we are
remanding the matter for a new resentencing hearing, we direct the trial court to calculate
defendant’s credits for the time he has served in custody when resentencing him.
DISPOSITION
The order is reversed, and the matter is remanded to the trial court to conduct a
resentencing hearing with defendant present, absent a valid waiver. On remand, the trial
court is directed to recalculate defendant’s custody credits and amend the abstract of
7 judgment to reflect the correct amount of custody credits. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
CODRINGTON Acting P. J.
MENETREZ J.