Unreported / Non-Citable
Background
In 2013, William Alexander Shidner entered an occupied residence and committed robbery, inflicting great bodily injury. Charged with multiple offenses including first degree robbery, he pled guilty in February 2016 to count 5 (first degree robbery), admitted a great bodily injury enhancement and three prior prison term allegations, and received a stipulated 15-year sentence: the upper term of nine years for robbery, a consecutive three-year great bodily injury enhancement, and three consecutive one-year prison prior enhancements.
In October 2023, the trial court struck the three prison priors under Penal Code section 1172.75, reducing the sentence to 12 years, and set the matter for a full resentencing hearing. Defense counsel moved for the lower or middle term, arguing amended section 1170(b) barred the upper term absent stipulated or jury-found aggravating factors; the People countered that his criminal history and prison record supported the upper term.
The full resentencing hearing was held on May 5, 2025, in defendant's absence, with counsel stating defendant had previously waived his right to be present. The trial court denied the motion for a lower term, concluded defendant's pled-and-proven prison priors showed his crimes were numerous or of increasing severity, and left the nine-year upper term in place, keeping the sentence at 12 years. Defendant timely appealed.
The Court’s Holding
The Court of Appeal affirmed the upper-term resentencing. It held that section 1172.75, subdivision (d)(4)—under which, unless the court originally imposed the upper term, it may not impose a sentence exceeding the middle term—clearly and unambiguously excepts cases where the upper term was originally imposed from the heightened factfinding requirements of amended section 1170(b). Following People v. Lua and the majority view in Dozier, Mathis, and Brannon-Thompson, the court declined to follow People v. Gonzalez, concluding the trial court could retain the upper term without stipulation or proof beyond a reasonable doubt of aggravating factors, and that the Sixth Amendment was not implicated because the original sentence complied with it. The court noted the California Supreme Court has granted review on the issue.
The court agreed with defendant that conducting the resentencing hearing in his absence was error, because the record contained no valid waiver under section 977—no writing, no personal waiver, and no evidence counsel was authorized to waive his presence. But the error was harmless beyond a reasonable doubt: defense counsel had already presented the mitigating postconviction factors and plea for leniency defendant claimed he could have offered, defendant identified no additional evidence or testimony, and given his criminal history and prison disciplinary record, his presence would not have changed the result.
Finally, the court agreed with both parties that the trial court failed to recalculate defendant's custody credits at resentencing to reflect time served between his original 2016 sentencing and the resentencing hearing, as section 2900.1 requires. It remanded for the limited purpose of calculating actual time served and awarding those credits in an amended abstract of judgment to be forwarded to the Department of Corrections and Rehabilitation.
Key Takeaways
- Section 1172.75, subdivision (d)(4) permits a resentencing court to reimpose an originally imposed upper term without satisfying the heightened aggravating-factor factfinding requirements of amended section 1170(b), under the majority view followed by this court.
- The court rejected the Sixth District's contrary holding in People v. Gonzalez and noted the California Supreme Court has granted review and will have the final word.
- Resentencing a defendant in his absence without a valid section 977 waiver is error, but it is reviewed for harmless error beyond a reasonable doubt and was harmless here because counsel presented all mitigating evidence and defendant identified nothing additional he would have offered.
- A defendant claiming prejudice from absence at a hearing bears the burden of showing the absence affected the outcome; speculation about possible testimony is insufficient.
- When a resentencing modifies a felony sentence, the trial court must recalculate custody credits for time served under the original commitment and reflect the updated total in an amended abstract of judgment under section 2900.1.
Why It Matters
The decision reinforces the majority view among California appellate courts that section 1172.75(d)(4) operates as an exception to the amended section 1170(b) factfinding requirements when the defendant was originally sentenced to the upper term, deepening the split with the Sixth District's Gonzalez decision while the issue awaits resolution by the California Supreme Court.
It also shows that proceeding in a defendant's absence without a valid waiver does not automatically require reversal—the defendant must demonstrate prejudice, and the error is harmless where counsel fully presented the available mitigating evidence and the defendant cannot identify what his presence would have added.