Filed 2/26/24 P. v. Defelice CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

 Plaintiff and Respondent,

v.

THOMAS DEFELICE,

 Defendant and Appellant.

2d Crim. No.B325106

(Super. Ct. No. 1492983)

(Santa Barbara County)

Thomas Defelice appeals a judgment following a 

resentencing hearing. In 2022, we affirmed his conviction for 

battery causing serious bodily injury (Pen. Code,1 § 243, subd. (d))

(count 1); assault with force likely to produce great bodily injury 

(§ 245, subd. (a)(4)) (count 2); corporal injury to a former 

cohabitant (§ 273.5, subd. (a)) (count 3), with jury findings that 

he inflicted serious bodily injury as to count 1, that he personally 

inflicted great bodily injury as to count 2 (§ 12022.7, subd. (a)),

1 All statutory references are to the Penal Code.
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and that he inflicted great bodily injury under domestic violence 

circumstances as to count 3. (Id., subd. (e); People v. Defelice

(Mar. 8, 2022, B307326) [nonpub. opn.].) The trial court 

sentenced him to a third strike, 25 years to life in prison, plus a 

consecutive 15 years. The 15-year sentence included the upper 

term of five years for the section 12022.7, subdivision (e),

enhancement.

Senate Bill No. 567 (2021-2022 Reg. Sess.) changed the 

standard for imposing upper terms. In our disposition we said, 

“The sentence is vacated and the case is remanded to the trial 

court for resentencing consistent with Senate Bill No. 567. 

Should the court impose the upper term, it should state [its]

reasons for doing so. In all other respects, the judgment is 

affirmed.” (People v. Defelice, supra, B307326.)

At the resentencing hearing, the trial court imposed the 

upper term again for the section 12022.7, subdivision (e),

enhancement. We conclude, among other things, that 1) the 

court properly limited the scope of resentencing and Defelice was 

not entitled to a full resentencing; and 2) the court could 

reasonably find that Defelice waived his right to appear at the 

sentencing hearing. We affirm.

FACTS

On remand from our prior decision, the trial court held a 

short presentencing hearing in August 2022 and asked, “I am 

gathering that [Defelice] will be waiving his appearance and we’ll 

continue [the section] 977 [hearing]. Or do we need to have him 

brought down?” 

Defelice’s counsel said: “No, Your Honor. He can stay in 

state prison. It’s a relatively simple issue. He has a rather 

lengthy sentence.” 
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The court said, “I understand. I read the opinion. I just 

want to make sure that we all understand he’s waiving his 

appearance.” 

The prosecutor: “Thank you.” 

Defense counsel: “Understood, Your Honor.” 

The trial court held another pre-resentencing hearing on 

October 4, 2022. Again Defelice was not present. The court 

asked defense counsel about his absence. Counsel responded, 

“He’s not going to be transported.” The court scheduled a

resentencing hearing for October 25, 2022.

At the October 25th resentencing hearing, Defelice was not 

present. Defense counsel advised the trial court that Defelice “is 

in state prison.” 

The trial court ruled that the scope of resentencing would 

be limited to the enhancement. The court said, “So the court will 

find that factors in aggravation have been proven in Mr.

Defelice’s matter and would impose the upper term of five years 

for the infliction of great bodily injury enhancement. That would 

be the order of the court.” 

DISCUSSION

The Scope of the Resentencing Hearing

The trial court limited the scope of resentencing to the 

section 12022.7, subdivision (e), enhancement. It did not err.

Defelice claims a full resentencing on all counts was 

required. He notes that our Supreme Court has held that “when 

part of a sentence is stricken on review, on remand for 

resentencing ‘a full resentencing as to all counts is appropriate, 

so the trial court can exercise its sentencing discretion in light of 

the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th

857, 893.) He claims the trial court erred by not conducting a full 
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resentencing and only limiting the resentencing to the 

enhancement.

But the Buycks rule is not applicable here because Defelice 

was sentenced under the three strikes law. Buycks involved 

resentencing under Proposition 47. It did not involve 

resentencing for inmates with three strikes sentences. 

Consequently, Defelice was not entitled to a full resentencing. 

(People v. Superior Court (Guevara) (2023) 97 Cal.App.5th 978, 

984-986, 988.) 

Moreover, as the People note, the trial court was correct 

because our reversal only vacated the enhancement. The 

disposition only gave instructions to the court on remand 

regarding the enhancement. It did not require the court to 

conduct a full resentencing hearing. The court complied with our 

remand order. A full resentencing would be inconsistent with our 

remand order.

Defelice’s Right to be Present at the Resentencing Hearing

Defelice notes that he was not present at the resentencing 

hearing. He claims the trial court erred by conducting the 

resentencing hearing in his absence,

A criminal defendant has a federal and state constitutional 

right to be present at all critical stages of the criminal 

proceeding. (People v. Cutting (2019) 42 Cal.App.5th 344, 347.) 

Sentencing is a critical stage. (Id. at p. 348; People v. Robertson

(1989) 48 Cal.3d 18, 60.) “[R]esentencing is another critical 

stage.” (Cutting, at p. 348.) “Defendant’s constitutional and 

statutory right to be present at the sentence modification hearing 

and imposition of sentence is not in dispute. (Cal. Const., art. 1, 

§ 15 . . . .)” (Robertson, at p. 60.) 
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But a defendant may waive the right to be present. (People 

v. Nieves (2021) 11 Cal.5th 404, 508.)

The trial court was aware of Defelice’s right to be present 

at the resentencing hearing and the need for a waiver of his right 

to be present before proceeding with the resentencing. It 

conducted a sufficient inquiry on this issue before proceeding 

with the resentencing hearing.

At the August 2022 hearing, the trial court said, “I am 

gathering that [Defelice] will be waiving his appearance and we’ll 

continue [the section] 977 [hearing]. Or do we need to have him 

brought down?” 

Defelice’s counsel said, “No, Your Honor. He can stay in 

state prison. It’s a relatively simple issue. He has a rather 

lengthy sentence.”

The court said, “I understand. I read the opinion. I just 

want to make sure that we all understand he’s waiving his 

appearance.”

Counsel responded: “Understood, Your Honor.” 

At the October 4th hearing, the trial court asked about 

Defelice not appearing for the hearing. Counsel responded, “He’s 

not going to be transported.” 

From counsel’s responses to the trial court’s questions, the 

court could reasonably find that Defelice had waived his right to 

be present at the resentencing hearing. Defelice has made no 

showing on appeal that he wanted to appear at the resentencing 

hearing or what information he would have presented had he 

been present. Given the court’s findings, there is no showing of 

any reasonable probability of a different result had Defelice been 

present.
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DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

BALTODANO, J.
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Thomas R. Adams, Jr., Judge

Superior Court County of Santa Barbara

______________________________

Rudolph J. Alejo, under appointment by the Court of 

Appeal, for Defendant and Respondent.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Stephanie A. Miyoshi, 

Deputy Attorneys General, for Plaintiff and Respondent.