Filed 10/3/24 P. v. Chacon CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

GASPAR CHACON,

Defendant and Appellant.

 B331700

 (Los Angeles County

 Super. Ct. No. NA081947)

APPEAL from an order of the Superior Court of Los 

Angeles County, Judith L. Meyer, Judge. Reversed and 

remanded.

Miriam K. Billington, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Wyatt E. Bloomfield, Supervising 
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Deputy Attorney General, and Christopher G. Sanchez, Deputy 

Attorney General, for Plaintiff and Respondent.

* * * * * *

The trial court convened a resentencing hearing for Gaspar 

Chacon (defendant) in his absence based solely on defense 

counsel’s representation that he had “authority” to appear on 

defendant’s behalf. This was constitutional error, and this error 

was not harmless beyond a reasonable doubt. We accordingly 

reverse and remand for a new resentencing hearing at which 

defendant is present or makes a valid waiver of his presence.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Underlying crime1

In May 2009, defendant went by the nickname “Menace.” 

After hearing from a neighbor that the man renting a room from 

the neighbor was late in paying his rent, defendant took it upon 

himself to intimidate the man. Defendant and a friend entered 

the man’s room while he was sleeping, told him he “had to pay 

[his] rent, Homie,” and proceeded to rain punches on him, 

ignoring the man’s cries for help. Defendant’s friend then told 

the man, “You better not report this or we will come for your 

daughter.” The man’s injuries to his face and scalp necessitated 

five sutures and 14 staples. 

B. Prosecution, conviction, sentencing and appeal

In the operative information, the People charged defendant 

1 We draw these facts from our prior opinion in People v. 

Chacon (Dec. 20, 2010, B222042) [non-pub opn.].
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with (1) mayhem (Pen. Code, § 203),2 (2) dissuading a witness 

from reporting a crime (§ 136.1, subd. (b)(1)), and (3) assault by 

means likely to product great bodily injury (§ 245, subd. (a)(1)).3

The People alleged that defendant personally inflicted great 

bodily injury (§ 12022.7, subd. (a)) in committing the assault. 

The People also alleged that defendant’s 1998 conviction for

robbery (§ 211) constituted a “strike” within the meaning of our 

Three Strikes Law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) 

as well as a prior serious felony (§ 667, subd. (a)). The People 

further alleged that defendant had suffered two prior prison 

terms (§ 667.5, subd. (b)). 

A jury convicted defendant of all three charges and found 

true the great bodily injury allegation. In a bifurcated 

proceeding, the court found that defendant had suffered the prior 

“strike” conviction. 

The trial court sentenced defendant to state prison for 24

years and 4 months. Specifically, the court sentenced defendant 

to 23 years on the mayhem conviction, comprised of a base 

sentence of 16 years (the upper term of eight years, doubled due 

to the prior strike), plus five years for the prior serious felony,

plus two years for two prior prison terms. The court imposed a 

consecutive 16-month sentence on the dissuading a witness 

conviction, comprised of one third of the mid-term sentence of two 

years, doubled due to the prior strike. The court stayed the 

sentence for the assault conviction as well as the great bodily 

2 All further statutory references are to the Penal Code 

unless otherwise indicated.

3 The People also charged defendant with (1) attempted 

robbery (§§ 211, 664), and (2) residential burglary (§ 459), but the 

jury acquitted defendant of those charges. 
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injury enhancement. 

We affirmed defendant’s convictions. 

II. Procedural Background

Because defendant was eligible to have his two one-year 

enhancements for serving a prior prison term stricken under 

section 1172.75, the trial court in November 2022 appointed 

counsel for defendant and set the matter for a status conference. 

Defendant filed a memorandum seeking a full resentencing to 

include (1) striking the two one-year prior prison term 

enhancements, (2) striking the five-year enhancement for 

suffering a prior serious felony, and (3) imposing a low- or midterm sentence on the mayhem count under Senate Bill 567. 

The court held a hearing on May 16, 2023. Defendant was 

not present. At the outset of the hearing, the court asked defense 

counsel, “My understanding is [that] you have [Penal Code 

section] 977(b) authority?”; counsel responded, “I do.” The court 

then indicated it had read the “entire file” and reviewed 

defendant’s prison record. The court indicated its tentative 

intent to strike the two, one-year prior prison term enhancements 

as required by section 1172.75, but to deny defendant’s further 

requests to reduce the sentence. When the People asked the 

court to dismiss the five-year serious felony enhancement “in the 

interest of justice,” the court denied the request, explaining that 

because the defendant “had a violent past,” because “the 

underlying crime was of a very violent nature,” and because 

defendant “hasn’t gone a single year of custody time without an 

incident,” that “it’s actually in the interest of justice to make sure 

[defendant] stays in [custody] for as long as possible.” The court 

then imposed a sentence that excised the two one-year prior 

prison term enhancements, yielding a total sentence of 22 years 
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and four months. 

Defendant filed this timely appeal. 

DISCUSSION

Defendant argues that the trial court committed reversible 

error in conducting the May 2023 resentencing hearing in his 

absence and without a proper waiver. We agree.

A defendant has a constitutional and statutory right to be 

present at a resentencing hearing, including one generated by 

section 1172.75. (People v. Concepcion (2008) 45 Cal.4th 77, 81-

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

Santos (2024) 100 Cal.App.5th 666, 677 (Santos); People v. 

Velasco (2023) 97 Cal.App.5th 663, 673 (Velasco); People v. 

Cutting (2019) 42 Cal.App.5th 344, 347-348 (Cutting).) A 

defendant may waive his right to be present, but such a waiver is 

valid only if it is “voluntary, knowing and intelligent.” (People v. 

Davis (2005) 36 Cal.4th 510, 531.) 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.” (Id. 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. All we 

have is defense counsel’s representation that counsel “had 977(b) 

authority.” This is not enough, as People v. Quan (2023) 96 

Cal.App.5th 524, 535 (Quan) explicitly held. The People resist 

this conclusion, arguing that we must “presume” that counsel’s 

representation rests upon a proper waiver “[a]bsent affirmative 

evidence” to the contrary. We reject this argument because it has 

Davis backwards: The rule is not “a waiver is valid unless some 
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evidence shows it is unknowing and unintelligent”; the rule is 

that “a waiver is invalid unless some evidence shows it is 

knowing and intelligent.”

We must therefore ask whether this error was harmless. 

Although the People urge that the error here is purely statutory, 

such that the defendant bears the burden of showing a different 

result was reasonably probable had defendant been present at 

the hearing under People v. Watson (1956) 46 Cal.2d 818 (cf. 

People v. Poore (2022) 13 Cal.5th 266, 292 [applying Watson in 

evaluating defendant’s non-compliance with purely statutory 

section 977 requirement during voir dire]), the weight of 

precedent indicates that a defendant’s total absence from a 

resentencing hearing absent a proper waiver “implicate[s]” the 

federal constitutional right to be present and hence must be 

presumed prejudicial unless the People can show it was harmless 

beyond a reasonable doubt under Chapman v. California (1968)

386 U.S. 18 (Velasco, supra, 97 Cal.App.5th at p. 674; Santos,

supra, 100 Cal.App.5th at pp. 677-678; Quan, supra, 96 

Cal.App.5th at p. 536; People v. Basler (2022) 80 Cal.App.5th 46, 

59; Cutting, supra, 42 Cal.App.5th at pp. 348-349). Although the 

trial court’s observation that it is “actually in the interest of 

justice to make sure [defendant] stays in [custody] for as long as 

possible” is a strong indication that defendant will face an uphill 

climb to convince the court to reduce his sentence further, we 

cannot be sure beyond a reasonable doubt that defendant might 

not be able to present some additional facts that might cause the 

court to reconsider, particularly given the unique situation here 

where the People are asking for a further reduction in the 

sentence. (Cutting, at p. 350 [defendant’s improper absence was 

not harmless beyond a reasonable doubt because defendant could 
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“‘advocate for [his] position’”]; Basler, at pp. 59-60 [same]; cf. 

Santos, at p. 678 [defendant’s improper absence harmless beyond 

a reasonable doubt because defendant ineligible for relief sought]; 

Nieves, supra, 11 Cal.5th at pp. 508-509 [defendant’s improper 

absence at restitution hearing harmless beyond a reasonable 

doubt because defendant “would have added” no “significant 

information about her inability to pay beyond that presented by 

defense counsel”].) We do not mean to suggest what sentence the 

trial court should impose on remand.

Although the abstract of judgment is also erroneous for not 

setting forth any custody credits, that error can be remedied upon 

remand and after the resentencing hearing.

DISPOSITION

The judgment is reversed, and the matter remanded for a 

new resentencing hearing where the defendant is present or 

validly waives his presence.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST