Filed 5/14/24 P. v. Saldana CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE OF THE STATE

OF CALIFORNIA,

Plaintiff and Respondent,

v.

ANTHONY JESUS SALDANA,

Defendant and Appellant.

B324524

(Los Angeles County

Super. Ct. No. VA135326)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Joseph R. Porras, Judge. Reversed with 

directions.

James M. Crawford, under appointment by the Court of 

Appeal, for Plaintiff and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Wyatt E. Bloomfield and Lindsay Boyd, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________
2

In our opinion in People v. Saldana (Sept. 3, 2019, B292736 

[nonpub. opn.]), we remanded the case with directions to the trial 

court to exercise its discretion under Senate Bill No. 1393 as to 

two 5-year enhancements for prior convictions under Penal Code 

section 667, subdivision (a)(1). We also held that appellant

Anthony Jesus Saldana had the right to be present for the 

resentencing hearing and to raise other issues deferred to the 

trial court in our opinion. We specifically directed the trial court 

in this manner: “The matter is remanded with directions to the 

trial court to exercise its discretion under Senate Bill No. 1393. 

(People v. Buckhalter (2001) 26 Cal.4th 20, 34–35.) At the 

remand hearing, the defendant has the right to the assistance of 

counsel, and unless he chooses to forgo it, the right to be present.” 

(People v. Saldana, supra, B292736.)

The resentencing hearing was set for September 21, 2020. 

Unfortunately, even though appellant requested to be present at 

the hearing and was agreeable to delaying the hearing until after 

the COVID crisis had subsided, the trial court proceeded in his 

absence. The court explained why it was proceeding without 

appellant:

“The court has kind of made the court’s view of this case 

clear from the time I sentenced him after hearing in the jury trial 

four years ago to also the striking of the gun allegation when we 

did that hearing and we had to have him back from state prison. 

Now we have this Covid crisis which is stopping all the transport

to and from county jail that has been going on. So we don’t know 

when that’s going to end. We all know the case pretty much 

inside and out. I don't know what him being here would add to 

the argument made that's going to be made by Mr. Brown 

[defense counsel] right now.
3

“This was a case that had gang allegations. Mr. Saldana 

had been, or has been, a member of a local Whittier gang going 

back many years, and having him in county jail was always an 

issue to this court when the court knew that he was going to be 

sentenced to state prison and the transport back and forth from 

state prison to county jail in specifically Los Angeles county. But 

I’m assuming a lot of the counties around California, although 

some of the appellate courts and Justices on the California 

Supreme Court might not be as closely situated with the 

situation, the amount of gang activity and things that happen 

between county jail and state prison, it’s a concern. And I know 

weighing all the factors right now about his desire to be here and 

what that would provide in this hearing, the court is going to 

make a ruling right now that the court is going to proceed 

because especially we don't know when this Covid thing is going 

to end and bringing people back and forth and around for 

multiple reasons is not the best thing.

“So the court is going to proceeded [sic] with this hearing 

without the defendant and I’ll hear from Mr. Brown any oral 

argument that you have, Mr. Brown, that supports Mr. Saldana’s 

request to have the [Penal Code section 667, subdivision (a)(1)]

priors stricken.”

Defense counsel did not object and proceeded to make a 

perfunctory argument: 

“Mr. BROWN: Other than the court is aware of the record, 

I don't need to repeat the record to the court. I’m simply going to 

submit on the record indicating that if the court would exercise 

its discretion to strike the five year priors, Mr. Saldana will likely 

to never get out of prison.

“THE COURT: Thank you, Mr. Brown.”
4

After the prosecutor objected to striking the prior 

convictions, the trial court stated in some detail how serious 

appellant’s crimes had been.1 The court concluded that this was 

not “an appropriate case to strike the five-year enhancements”

and denied the request to strike the enhancements.

We review de novo a criminal defendant’s assertion that he 

was denied his constitutional right to be present for resentencing 

or a sentence modification hearing. (People v. Waidla (2000) 

22 Cal.4th 690, 741; People v. Sanchez (2016) 245 Cal.App,4th

1409, 1417.)

We understand the trial court’s concerns. Nonetheless, it 

was improper to ignore our directions upon remand and proceed 

without appellant present at the hearing. We are also 

unimpressed with defense counsel’s performance. The court 

should not have proceeded with resentencing in appellant’s 

absence. We therefore vacate the court’s decision to deny the 

request to strike the prior convictions. Because we are vacating 

the court’s decision, we need not address appellant’s second 

contention that his counsel provided ineffective assistance of 

counsel at the resentencing hearing.

1 In People v. Saldana (Feb. 21, 2018, B280748 [nonpub. 

opn.]) we affirmed appellant’s conviction for assault with a 

firearm, shooting at an inhabited dwelling, two counts of 

possession of a firearm by a felon, and a violation of a criminal 

street gang injunction. The jury found that all but the violation 

of the criminal street injunction were committed for the benefit of 

a criminal street gang and we affirmed this with one exception. 

(See fn. 2, post.) We also confirmed that appellant was subject to 

the Three Strikes law. Appellant’s aggregate sentence was 

50 years determinate plus 75 years to life.
5

Appellant contends, and respondent concedes, that the case 

must be remanded to apply the reforms to gang enhancements 

set forth in Assembly Bill No. 333.

We find appellant’s absence not harmless beyond a 

reasonable doubt under Chapman v. California (1967) 386 U.S. 

18, the applicable standard for prejudice as both parties concede.

Had appellant been present, he may have presented postconviction factors such as his disciplinary record and record of 

rehabilitation while incarcerated, evidence reflecting whether 

age, time served and diminished physical condition, if any, have 

reduce his risk for future violence and evidence that otherwise 

reflected changed circumstances. (People v. Velasco (2023) 

97 Cal.App.5th 663, 674.) He also may have corrected his trial 

counsel’s failure to raise issues we specifically deferred to the 

trial court for resolution in our previous opinion.

We remand the case with directions to comply with our 

opinion in People v. Saldana, supra, B292736. In addition, the 

trial court should proceed with applying the reforms set forth in 

Assembly Bill No. 333 to the gang enhancements in this case.2 

Appellant must be present at the hearing unless he waives that 

right.

The July 12, 2023, request for judicial notice of our court’s 

prior two opinions in this matter is denied as superfluous. (Evid. 

Code, § 459, subds. (a), (d).)

2 The surviving gang enhancements are to counts 1, 3 and 4 

of the information. Our original opinion affirming the conviction 

vacated the gang enhancement to count 5.
6

DISPOSITION

The judgment is reversed and the case is remanded with 

directions to follow our instructions in this opinion and in People 

v. Saldana, supra, B292736.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

VIRAMONTES, J.