People v. Parks CA2/5

Opinion

Filed 9/3/26 P. v. Parks CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B339940

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. PA086935)

MICHAEL PARKS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Hilleri G. Merritt, Judge. Affirmed. Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Stephen D. Svetich, Deputy Attorney General, for Plaintiff and Respondent. We consider whether we must reverse defendant and appellant Michael Parks’s (defendant’s) criminal judgment, entered at a Penal Code section 1172.75 resentencing hearing, because defendant—who executed a written waiver of the right to be present at further proceedings—was not present at resentencing.1 I. BACKGROUND A. Defendant’s Conviction, Sentencing, and Direct Appeal In 2017, a jury found defendant guilty of six counts of assault with a deadly weapon (a car) in violation of section 245, subdivision (a)(1). The jury also found true allegations that defendant sustained two prior convictions for serious or violent felonies within the meaning of the Three Strikes Law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and served seven qualifying prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to 162 years to life in prison, comprised of six terms of 25 years to life pursuant to the Three Strikes Law, one five-year enhancement pursuant to section 667, subdivision (a)(1), and seven one-year terms pursuant to section 667.5, subdivision (b). Defendant appealed and a prior panel of this court affirmed the trial court’s judgment. (People v. Parks (Mar. 13, 2019, B285967) [nonpub. opn.].) This court held, among other things, 1 Undesignated statutory references that follow are to the Penal Code.

2 that substantial evidence supported the trial court’s ruling that defendant voluntarily absented himself from many trial proceedings. (Ibid.)

B. Resentencing Proceedings In January 2023, defendant’s case was designated for resentencing review under section 1172.75 (a statute invalidating most prior prison term enhancements and requiring resentencing for affected defendants) and counsel was appointed for defendant. In April 2023, defense counsel filed a “Waiver of Defendant’s Personal Appearance Pursuant to Penal Code Section 977(b)” that was signed by counsel that same month and by defendant on March 16, 2023 (the same date on which the trial court called and continued the case at a hearing).2 Minute orders reflect the matter was again called and continued in July and August 2023 (defendant was not present in court at either time).

2 The waiver states: “The defendant, Michael Parks, having been advised of his right to be present at all stages of the proceedings, including, but not limited to, presentation of and arguments on questions of fact and law, and to be confronted by and to cross-examine all witnesses, hereby waives the right to be present at the hearing of any motion or other proceeding in this cause. [¶] The undersigned defendant hereby requests the Court to proceed during every absence of the defendant that the Court may permit pursuant to this waiver, and hereby agrees that his interest is represented at all times by the presence of his attorney the same as if the defendant were personally present in court, and further agrees that notice to defendant’s attorney that defendant’s presence in court on a particular day at a particular time is required is notice to the defendant of the requirement of defendant’s appearance at that time and place.”

3 In October 2023, the trial court held the section 1172.75 resentencing hearing. The court stated on the record that defendant was in custody “elsewhere” and his attorney was “here on his behalf with 977(b) authority.” The court ordered defendant’s seven one-year section 667.5, subdivision (b) enhancements stricken by operation of section 1172.75. The court, however, declined to make any other changes to defendant’s prior sentence and resentenced him to 155 years to life in prison (composed of a determinate 5-year term and an indeterminate 150 years to life term). The court explained, having been the judge presiding at trial, that it was convinced defendant had demonstrated a “propensity for violence and utter disdain for the legal process,” as well as a “callous disregard for [the] victims in this case” when he “went after a man who was driving with his five-year-old son.” The court remarked: “There is not one reason for this court to exercise its discretion to get rid of the five-year prior. It’s just not warranted.” Before concluding the hearing, the court asked counsel for defendant and the People if either wanted to be heard. Both declined.

II. DISCUSSION Defendant argues we should reverse and remand for another resentencing hearing because he was wrongfully denied his right to be present at the October 2023 resentencing. As we shall explain, the argument fails because defendant appropriately waived his right to be present. A defendant has a constitutional and statutory right to be present at a resentencing hearing, including one held pursuant to section 1172.75. (People v. Concepcion (2008) 45 Cal.4th 77, 81- 4 82; People v. Nieves (2021) 11 Cal.5th 404, 508.) “As a matter of both federal and state constitutional law, . . . a defendant may validly waive his or her right to be present during a critical stage of the trial, provided the waiver is knowing, intelligent, and voluntary.” (People v. Cunningham (2015) 61 Cal.4th 609, 633, italics added.) Waivers are also permitted by statute. Section 1172.75 itself provides a defendant may elect to appear remotely at a resentencing hearing or “may waive a resentencing hearing” entirely. (§ 1172.75, subd. (e).) The more general rules for a defendant’s presence at criminal proceedings in section 977 require all felony defendants to be “physically present . . . at the time of the imposition of sentence” but “physically or remotely present at all other proceedings unless they waive their right to be physically or remotely present, with leave of court and with approval by defendant's counsel.” (§ 977, subd. (b)(1); see also § 977, subd. (c)(1)(E).) Section 977 waivers must be in writing and the statute provides template language to be used in such waivers. (§ 977, subd. (b)(4).3)

3 Subdivision (b)(4) specifies that waivers should be in substantially the following form: “‘The undersigned defendant, having been advised of their right to be present at all stages of the proceedings, including, but not limited to, presentation of and arguments on questions of fact and law, and to be confronted by and cross-examine all witnesses, hereby knowingly, intelligently, and voluntarily waives the right to be physically or remotely present at the hearing of any motion or other proceeding in this cause. The undersigned defendant hereby requests the court to proceed during every absence of the defendant that the court may permit pursuant to this waiver, and hereby agrees that their interest is represented at all times by the presence of their attorney the same as if the defendant were physically or remotely 5 In this case, defendant signed and filed with the trial court a waiver of presence form that waived his right to be present “at the hearing of any motion or other proceeding in this cause.”4 Defendant argues his written waiver is invalid because “there is no evidence [defendant] underst[ood] that he was waiving his right to be present at the October 18, 2023, resentencing hearing,” which in his view means he “did not ‘knowingly and intelligently’ waive[ ] his right to be present . . . .” Defendant’s argument is unconvincing. At the time defendant executed the written waiver, there were no trial court proceedings remaining to be held other than his section 1172.75 resentencing and his waiver extended to “the hearing of any motion” or other proceeding. That is enough to establish a knowing and intelligent waiver of the right to be present for the section 1172.75 resentencing. Pointing to the provisions of section 977, defendant also argues his waiver was invalid because his attorney made no argument at resentencing and yet defendant agreed in the written waiver that his interest would be represented by the presence of his attorney the same as if defendant himself were in present in court, and further agrees that notice to their attorney that their physical or remote presence in court on a particular day at a particular time is required is notice to the defendant of the requirement of their physical or remote appearance at that time and place.’” 4 Comparing defendant’s written waiver to the statute, the words “knowingly, intelligently, and voluntarily” between “hereby” and “waives” in section 977 are omitted, as are references in section 977 to remote presence.

6 court; in defendant’s view, that means his interests were not represented the same as if he had been present and this establishes he did not validly waive his appearance. The argument is unconvincing, for if defendant’s position were correct, that would mean the validity of a waiver would turn not on what defendant knew and understood at the time of the waiver (the proper inquiry) but on what might occur only later— perhaps months later, as here. Moreover, defense counsel only declined to argue after hearing the trial court’s comments on the record indicating a rather firm inclination to deny further reductions to defendant’s sentence, and defense counsel was not required to make a futile argument to the contrary merely to preserve the validity of defendant’s earlier-approved waiver of his right to be present.5 5 In light of our holding, it is unnecessary to decide whether, as the Attorney General argues, the asserted errors were forfeited or invited.

7 DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM (D.), J.