Filed 6/16/23 P. v. Kendrick CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Cal ifornia 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(a). This 

opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

TONY KENDRICK, Jr.,

Defendant and Appellant.

B317126

Los Angeles County

Super. Ct. No. MA073204

APPEAL from a judgment of the Superior Court of Los

Angeles County, Daviann L. Mitchell, Judge. Reversed and 

remanded with directions.

Justin Behravesh, 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, Assistant 

Attorney General, Steven D. Matthews and Michael J. Wise, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

Tony Kendrick, Jr. (Kendrick) was convicted of first degree 

burglary, assault by means of force likely to produce great bodily 

injury, and dissuading a witness. The trial court sentenced 

Kendrick to 24 years in prison, selecting the upper terms for the 

burglary and assault convictions. In Kendrick’s first appeal, we 

struck three one-year enhancements imposed under Penal Code1

section 667.5, subdivision (b) (prison priors), vacated Kendrick’s 

sentence, and remanded the matter for resentencing. We also 

noted that on remand, Kendrick could challenge the court’s 

imposition of fines and fees. We otherwise affirmed the judgment 

and denied Kendrick’s petition for writ of habeas corpus. 

On remand, the court resentenced Kendrick—without him 

or any defense counsel present—to 21 years in prison, choosing 

the same terms as Kendrick’s original sentence but without the 

three prison priors. After Kendrick was resentenced, the 

California Legislature enacted Senate Bill No. 567 (S.B. 567), 

which amended section 1170, former subdivision (b) by making 

the middle term the presumptive sentence for a term of 

punishment. (Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. 

(b)(1) & (2).)

Kendrick appeals, arguing the court prejudicially erred 

when it held the new sentencing hearing without him or his 

counsel present. We agree and remand the matter for a new 

sentencing hearing at which Kendrick is entitled to be present, 

unless he chooses to waive that right. On remand, the court shall 

reconsider Kendrick’s sentence in light of S.B. 567. 

1 All undesignated statutory references are to the Penal Code.
3

BACKGROUND2

The People charged Kendrick with first degree residential 

burglary (§ 459; count 1) and assault by means likely to produce 

great bodily injury (§ 245, subd. (a)(4); count 2). The People 

further alleged that Kendrick suffered two prior serious felony

convictions (§§ 667, subds. (a)(1), (b)–(i), 1170.12, subds. (a)–(d))

and served five prior prison terms. The prosecution later 

amended the information to add count 3, dissuading a witness (§ 

136.1, subd. (b)).

Following a jury trial, Kendrick was found guilty as 

charged. In a bifurcated proceeding, the court found true one 

strike allegation, one prior serious felony allegation, and three 

prison prior allegations. 

On February 26, 2019, the court held the sentencing 

hearing, at which Kendrick appeared in pro. per. The court 

sentenced Kendrick to 24 years in prison as follows: (1) the high 

term of 6 years for count 1, doubled to 12 years under the Three 

Strikes Law, plus 5 years for the prior strike and 3 years for the 

prison priors; (2) the high term of 4 years for count 2, doubled to 

8 years under the Three Strikes Law, to run concurrently with

count 1; and (3) the middle term of 2 years for count 3, doubled to 

4 years under the Three Strikes Law, to run consecutively to 

count 1. As for fines and fees, the court imposed a $7,200 

restitution fine, a $30 criminal conviction fee, and a $40 court 

security fee, and it imposed but stayed a $7,200 parole revocation 

restitution fine.

2 A summary of the facts underlying Kendrick’s convictions can be 

found in our prior nonpublished opinion, People v. Kendrick (Feb. 17, 

2021, B296061).
4

In Kendrick’s first appeal, we struck the three prison 

priors, vacated Kendrick’s sentence, and remanded the matter for 

resentencing. We declined to reach Kendrick’s claim that he was 

entitled to an ability to pay hearing, noting that Kendrick “may 

raise any challenge to the fees or fines at the resentencing 

hearing.” In all other respects, we affirmed the judgment.

The court held a new sentencing hearing on June 16, 2021.

A prosecutor appeared but neither Kendrick nor defense counsel

was present. According to the court, Kendrick was ordered out of 

custody, but “[h]e was not transported.” The court decided to 

proceed without any representative for the defense because 

“[t]here is no discretion, [the court’s] simply following a 

remittitur.” The court sentenced Kendrick to 21 years in prison, 

imposing the same terms as Kendrick’s original sentence without

the three prison priors. The court also imposed “all other 

conditions” from the original judgment.3

Kendrick appeals. 

DISCUSSION

A criminal defendant has a federal and state constitutional 

right to appear at “all critical stages of a criminal prosecution,”

including at sentencing and resentencing proceedings. (People v. 

Doolin (2009) 45 Cal.4th 390, 417, 453; People v. Rodriguez (1998) 

3 The court awarded Kendrick 1,222 actual custody credits, while 

Kendrick’s abstract of judgment reflects he is entitled to only 1,221 

custody credits. The abstract of judgment must be corrected to reflect 

that Kendrick is entitled to 1,222 actual custody credits. (People v. 

Mitchell (2001) 26 Cal.4th 181, 185 [“ ‘a court has the inherent power 

to correct clerical errors in its records so as to make these records 

reflect the true facts’ ”].)
5

17 Cal.4th 253, 260.) A defendant also has a statutory right to 

appear at such hearings. (People v. Nieves (2021) 11 Cal.5th 404, 

508.) A defendant may waive the right to personally appear if his 

waiver is “ ‘voluntary, knowing and intelligent.’ ” (Ibid.) To

constitute a valid waiver, there must be at least “some evidence 

that the defendant understood the right he was waiving and the 

consequences of doing so.” (People v. Davis (2005) 36 Cal.4th 510, 

531.)

The People contend the court did not violate Kendrick’s 

right to appear at the June 16, 2021 resentencing hearing 

because the record indicates Kendrick was present at that 

hearing or, at the very least, he waived his right to appear at the 

hearing. This argument is not well-taken. 

The People point to two-minute orders included in the 

record, both of which are dated June 16, 2021. The first minute 

order, which has an 8:30 a.m. timestamp, states that “[d]efendant 

is not present in court, and not represented by counsel.” That 

order also states that “defendant waived his personal appearance 

for this hearing.” The order then sets out Kendrick’s new

sentence imposed at the June 16, 2021 resentencing hearing. 

The second minute order, which has a 9:00 a.m. timestamp, 

states that “[d]efendant is present in court, and not represented 

by counsel[.] [¶] Defendant appears in pro per.” The second 

minute order also states that it is modifying, nunc pro tunc, the 

minute order from February 26, 2019—i.e., the date of Kendrick’s 

original sentencing hearing. The 9:00 a.m. minute order includes 

the same description of Kendrick’s new sentence that appears in 

the 8:30 a.m. minute order.

As for the 9:00 a.m. minute order, the People argue we can 

infer it establishes Kendrick appeared at the June 16, 2021
6

resentencing hearing. We disagree. In the reporter’s transcript 

from that hearing, the court noted that it had ordered Kendrick 

out of custody for resentencing, but he was not transported to the 

courthouse. The court explained that it was proceeding with 

resentencing without Kendrick present because it believed it had 

no sentencing discretion. Nothing in the reporter’s transcript 

from that hearing otherwise suggests Kendrick appeared at the 

resentencing hearing.

Since the reporter’s transcript, and not the clerk’s 

transcript, reflects the court’s pronouncement of judgment, we 

must resolve the discrepancy between the 9:00 a.m. minute order 

and the reporter’s transcript from the June 16, 2021 resentencing 

hearing in favor of the reporter’s transcript.4 (People v. Mesa

(1975) 14 Cal.3d 466, 471; see also In re P.A. (2012) 211 

Cal.App.4th 23, 30, fn. 4 [“ ‘[c]onflicts between the reporter’s and 

clerk’s transcripts are generally presumed to be clerical in nature 

and resolved in favor of the reporter’s transcript unless the 

particular circumstances dictate otherwise’ ”].) Thus, we cannot 

infer from the 9:00 a.m. minute order that Kendrick appeared at 

the resentencing hearing.

Nor can we infer from the 8:30 a.m. minute order that 

Kendrick waived his personal appearance at the June 16, 2021 

resentencing hearing. Nothing in the reporter’s transcript 

4 Indeed, the notation in the 9:00 a.m. minute order that Kendrick 

appeared in pro. per. appears to be a holdover from the February 26, 

2019 minute order, which the 9:00 a.m. minute order modified “nunc 

pro tunc.” The February 26, 2019 minute order includes the exact same 

notation that the People rely on here—i.e., “[d]efendant is present in 

court, and not represented by counsel[.] [¶] Defendant appears in pro 

per.”
7

indicates Kendrick waived his presence at that hearing. As we 

just explained, the court noted only that Kendrick had been 

ordered out of custody, but he was not transported to the 

courthouse. No defense counsel appeared to communicate any 

waiver on Kendrick’s behalf, and the court did not address any 

waiver executed by Kendrick. Nor does a waiver appear 

anywhere else in the record. (See People v. Davis, supra, 36 

Cal.4th at p. 531 [there must be evidence that the defendant 

understood the right he was waiving and the consequences of 

doing so].) For the same reasons discussed above, we must 

presume the reporter’s transcript, which contains no indication 

that Kendrick waived his right to personally appear at 

resentencing, controls over the conflicting 8:30 a.m. minute order. 

(In re P.A., supra, 211 Cal.App.4th at p. 30, fn. 4.)

Because Kendrick was not present at the June 16, 2021 

resentencing hearing, and nothing in the record establishes he

waived his right to appear at that hearing, the court violated 

Kendrick’s right to be present at resentencing. (People v. Cutting

(2019) 42 Cal.App.5th 344, 348 (Cutting).) We therefore must 

determine whether Kendrick’s absence from resentencing was 

harmless beyond a reasonable doubt. (Ibid., citing Chapman v. 

California (1967) 386 U.S. 18, 23.) Under that standard, the 

People must establish beyond a reasonable doubt that Kendrick’s 

absence did not affect the outcome of resentencing. (People v. 

Rutterschmidt (2012) 55 Cal.4th 650, 661.)

Kendrick’s absence from the resentencing hearing was not 

harmless beyond a reasonable doubt. As our Supreme Court has 

explained, where, as here, “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 
8

sentencing discretion in light of the changed circumstances.’ ” 

(People v. Buycks (2018) 5 Cal.5th 857, 893.) In exercising its 

discretion on remand, a court may consider “ ‘ “any pertinent 

circumstances which have arisen since the prior sentence was 

imposed.” ’ ” (Cutting, supra, 42 Cal.App.5th at p. 350, quoting 

Buycks, at p. 893.) For instance, a court may consider mitigating 

factors that arose after the defendant’s original sentencing, such 

as the defendant’s expressions of remorse or pleas for leniency. 

(Cutting, at p. 350; see also Dix v. Superior Court (1991) 53 

Cal.3d 442, 460 [“it is well settled that when a case is remanded 

for resentencing after an appeal, the defendant is entitled to ‘all 

the normal rights and procedures available at his original 

sentencing’ [citations], including consideration of any pertinent 

circumstances which have arisen since the prior sentence was 

imposed”].)

In our prior opinion, we noted that Kendrick could raise on 

remand any challenges to the court’s imposition of fines and fees.5

But by conducting the resentencing hearing without Kendrick, let 

alone a representative for him, present, the court deprived 

Kendrick of the opportunity to present evidence or argument 

about his ability to pay the restitution fine or other fees imposed 

by the court. (See People v. Zackery (2007) 147 Cal.App.4th 380, 

388–389 [“When a restitution fine is imposed in the absence of 

5 Curiously, the People assert Kendrick forfeited any challenge to the 

court’s imposition of fines and fees because he did not raise that issue 

at the original sentencing hearing. We reject this argument because we 

expressly authorized Kendrick to raise the issue on remand. (See 

People v. Leon (2016) 243 Cal.App.4th 1003, 1023 [courts may exercise 

discretion to reach sentencing issues that were not raised in the trial 

court].)
9

the defendant, the defendant has no opportunity to address the 

propriety of imposing the fine or its amount”]; see also People v.

Nieves, supra, 11 Cal.5th at p. 508 [restitution is “ ‘a significant 

aspect of a criminal sentence’ ” at which a criminal defendant has 

a right to appear].) Additionally, without being present, Kendrick 

was unable to advocate for the court, in exercising its discretion 

to reconsider his entire sentence, to impose more lenient terms of 

imprisonment. (Cutting, supra, 42 Cal.App.5th at p. 350.) 

For the foregoing reasons, we cannot conclude that the 

court’s decision to resentence Kendrick in his absence was 

harmless beyond a reasonable doubt. (Cutting, supra, 42 

Cal.App.5th at p. 350 [defendant’s absence from resentencing was 

not harmless beyond a reasonable doubt because defendant “may 

have offered mitigating factors that arose after his original 

sentencing; he may have expressed remorse; [or] he may have 

made a plea for leniency”].) Thus, the matter must be remanded 

for a new sentencing hearing at which Kendrick is entitled to 

appear, unless he waives that right.6 At resentencing, the court 

shall reconsider Kendrick’s sentence in light of S.B. 567. (See 

People v. Lopez (2022) 78 Cal.App.5th 459, 465 [S.B. 567’s 

“ameliorative amendments to section 1170, subdivision (b) apply 

retroactively to all cases not yet final as of January 1, 2022”].)

Kendrick may raise, and the court shall consider, challenges to 

the fees or fines at the resentencing hearing.

6 Because we are vacating Kendrick’s sentence and remanding the 

matter for a new sentencing hearing, we need not address the other 

arguments Kendrick raises on appeal.
10

DISPOSITION

The sentence is vacated, and the matter is remanded for 

further proceedings consistent with the views expressed in this 

opinion. The trial court is directed to correct the abstract of 

judgment to reflect the award of 1,222 days of actual custody 

credits and forward a certified copy of the corrected abstract to 

the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.

WE CONCUR:

EGERTON, J.

HEIDEL, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.