People v. Percy CA2/5

Opinion

Filed 8/18/26 P. v. Percy CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B348480

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. XSCTA010601) v.

DARIN PERCY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Carol J. Najera, Judge. Affirmed. Jennifer Peabody and Olivia Meme, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. __________________________ Darin Percy appeals the trial court’s postjudgment order following a full resentencing hearing pursuant to Penal Code1 section 1172.75. Appointed counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), requesting that this court permit Percy to file a supplemental brief as required by Delgadillo, and also requesting that we conduct an independent review of the record. Percy has filed a supplemental brief. Having reviewed Percy’s arguments, we affirm the trial court’s order. In 1992, the jury found Percy guilty of conspiracy to commit robbery (§§ 182 & 211, count 1), five counts of second degree robbery (§ 211, counts 2, 4, 6. 9, & 10), four counts of assault with a firearm (§ 245, subd. (a)(2), counts 3, 5, 7, & 12), one count of murder (§ 187, subd. (a), count 8), and one count of willful, deliberate, premeditated attempted murder (§§ 664 & 187, count 11). As to counts 2 through 12, the jury found true the allegation that a principle was armed with a firearm. (Former § 12022, subd. (a)(1).) The trial court found true the allegation that Percy had served two prior prison terms and had not remained free of custody for the five years following his incarceration. (§ 667.5, subd. (b).) The trial court sentenced Percy to 25 years to life, plus a determinate term of 15 years four months, comprised as follows: 25 years to life in count 8, plus the upper term of nine years in count 11 and one year for the firearm enhancement associated with count 11, plus one year four months in count 2 (one-third of the middle term), one year each on counts 4 and 6 (one-third of the middle term), plus one year each for the prior prison term 1 All further statutory references are to the Penal Code.

2 enhancements imposed pursuant to section 667.5, subdivision (b). The trial court stayed the sentences in counts 1, 3, 5, 7, 9, 10, and 12 pursuant to section 654, and stayed the enhancements in counts 2, 4, and 6. Sometime prior to May 19, 2023, the California Department of Corrections and Rehabilitations (CDCR) forwarded to the superior court a petition for resentencing pursuant to Senate Bill No. 483 (2021–2022 Reg. Sess.), Senate Bill No. 136 (2019–2020 Reg. Sess.), and section 1172.75.2 The trial court recalled the sentence, appointed counsel, and conducted a full resentencing hearing. At the resentencing hearing, defense counsel and the prosecutor agreed to a disposition decreasing Percy’s determinate sentence by 10 years four months, which the trial court accepted. The court resentenced Percy to 25 years to life in count 8, plus a consecutive lower term of five years in count 11. The court stayed the enhancement in count 11. The court imposed and stayed the sentences in counts 1, 2, 3, 4, 5, 6, 7, 9, 10, and 12 pursuant to section 654, and stayed the enhancements in counts 2, 4, and 6. The court struck the two one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b). Percy timely appealed. We appointed counsel. Appointed counsel filed a brief pursuant to Delgadillo, supra, 14 Cal.5th 216, setting forth the proceedings, raising no issues, and requesting that we follow the procedures outlined in Delgadillo and permit Percy to file a supplemental brief raising any issues 2 The petition from the CDCR is not contained in the record. The court’s minute order dated May 19, 2023, states that the court is in receipt of the petition.

3 he wishes the Court to consider. On June 22, 2026, we advised Percy that he had 30 days to submit any contentions or issues he wished for us to consider. Percy filed a six-page handwritten brief arguing that: (1) his appeal should not be subject to the procedures set forth in Delgadillo; (2) he was deprived of a full resentencing; and (3) he did not waive his right to be physically present at the resentencing hearing.

DISCUSSION

1. Legal Principles Previously, section 667.5, subdivision (b) required the imposition of a one-year enhancement for each true finding of a separate prior prison or county jail term the defendant had served, unless the defendant remained free of custody for at least five years. (§ 667.5, former subd. (b); People v. Escobedo (2023) 95 Cal.App.5th 440, 445 (Escobedo).) However, with the enactment of Senate Bill No. 136, the Legislature amended subdivision (b) of section 667.5 to impose a one-year enhancement only for each prior term served for a conviction of a sexually violent offense. (Stats. 2019, ch. 590, § 1; People v. Burgess (2022) 86 Cal.App.5th 375, 380 (Burgess).) By adding section 1171.13 (effective Jan. 1, 2022), the Legislature made the change 3 Section 1171.1 was later amended through Senate Bill No. 483, and renumbered as section 1172.75. (Stats. 2022, ch. 58, § 12.)

4 retroactive, declaring that “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.” (Former § 1171.1, subd. (a), added by Stats. 2021, ch. 728, § 3, now § 1172.75, subd. (a); Burgess, at p. 380; Escobedo, at p. 445.) Section 1172.75 further established “a mechanism to provide affected defendants a remedy for those legally invalid enhancements.” (Burgess, supra, 86 Cal.App.5th at p. 380.) This procedure requires the CDCR to identify any eligible inmates, and upon verifying that the judgment includes a now-invalid prior prison term enhancement, the superior court is obligated to resentence those individuals in accordance with a defined schedule. (§ 1172.75, subds. (b) & (c); Burgess, at pp. 380–381.) “Resentencing pursuant to [] section [1172.75] shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” (§ 1172.75, subd. (d)(1).)

2. Analysis We reject Percy’s contention that the procedures set forth in Delgadillo do not apply to his appeal. Because the instant appeal is not from his conviction, Percy is not entitled to our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, or its federal constitutional counterpart, Anders v. California (1967) 386 U.S. 738. (Delgadillo, supra, 14 Cal.5th at p. 226 [“the procedures set out in Anders and Wende do 5 not apply to an appeal from the denial of postconviction relief”]; People v. Kelly (2006) 40 Cal.4th 106, 119 [independent judicial review mandated by Anders applies only to first appeal as of right]; see also Pennsylvania v. Finley (1987) 481 U.S. 551, 559.) This court is instead required to address the contentions Percy raises in his supplemental brief. (Delgadillo, supra, 14 Cal.5th at p. 232 [“the Court of Appeal is required to evaluate the specific arguments presented in [the supplemental] brief and to issue a written opinion”].) Percy’s contention that he did not receive a full resentencing is belied by the record. The trial court held a hearing and reduced his sentence by 10 years and four months, staying all but two of the terms imposed in 12 counts of which he was convicted in addition to striking the two now-invalid prior prison term enhancements. Finally, to the extent that Percy’s constitutional or statutory right to be physically present at his resentencing hearing was violated, any error was harmless under both the federal and state standards of prejudice.4 “Violations of the state 4 Section 1172.75, subdivision (e) permits the court to conduct a hearing remotely through use of remote technology if the defendant agrees. The record on appeal reflects that Percy appeared via Webex in a prior hearing on July 10, 2024. On August 9, 2024, Percy attempted to appear for the resentencing hearing via Webex, but was unable to do so due to technical difficulties. The court continued the hearing to October 18, 2024, and ordered counsel to submit a new Webex order for the court to sign, however nothing in the record confirms whether counsel complied with the court’s order. On October 18, 2024, Percy appeared at the resentencing hearing via Webex. The court 6 right to be present are reviewed under the [People v.] Watson [(1956) 46 Cal.2d 818, 836 (Watson)] reasonable probability standard: the matter is reversible only if it is reasonably probable the result would have been more favorable to the defendant absent the error.” (People v. Whitmore (2022) 80 Cal.App.5th 116, 127.) “A criminal defendant has a due process right to be present in the courtroom only to the extent his absence would thwart the fairness of the hearing.” (Id. at p. 125.) We review constitutional violations of the right to personally appear under the harmless beyond a reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18, 23 (Chapman). (Id. at p. 127.) In this case, Percy received a sentence that was the product of his counsel’s negotiations with the prosecutor and was approved by the court. Counsel made a tactical decision to reach a resolution with the prosecution likely in the belief that doing so was the best way to achieve the most favorable sentence for Percy, and indeed it resulted in a reduction of Percy’s sentence by ten years four months, despite the fact that Percy was convicted of 12 felony counts, including murder and attempted murder. Percy was present via Webex. He confirmed that he could see and hear the proceedings, so it is clear that he had knowledge of the sentence that counsel negotiated on his behalf. Percy did not object to the sentence or ask to speak with counsel about the sentence before it was pronounced. We therefore conclude beyond a reasonable doubt that the fairness of the proceeding asked Percy if he could see the proceedings, and Percy indicated that he could. At no point did Percy indicate that he wished to appear in person.

7 was not impacted by the fact that Percy appeared remotely rather than in person, and that it is not reasonably probable that Percy would have obtained a better result had he appeared in person. (See Chapman, supra, 386 U.S. at p. 23, and Watson, supra, 46 Cal.2d at p. 836.) We affirm the trial court’s order.

DISPOSITION

The trial court’s order is affirmed. NOT TO BE PUBLISHED.

MOOR, J. WE CONCUR:

HOFFSTADT, P. J.

BAKER, J.