People v. DeLeon CA5

Filed 11/2/26 P. v. DeLeon CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F089652 Plaintiff and Respondent, (Super. Ct. No. BF106430A) v. ISREAL DELEON, OPINION Defendant and Appellant. THE COURT* APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, Judge. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo- * Before Detjen, Acting P. J., DeSantos, J. and Harrell, J.  INTRODUCTION Appellant and defendant Isreal DeLeon (defendant) was convicted of attempted murder of one victim and premeditated attempted murder of a second victim. Firearm and prior prison term enhancements were also found true. He was sentenced to 11 years for attempted murder and the prior prison term enhancements, plus consecutive terms of life with the possibility of parole for premeditated attempted murder. He received 50 years to life for the two firearm enhancements. In 2025, the trial court recalled defendant’s sentence pursuant to Penal Code1 section 1172.75 and dismissed the now-invalid prior prison term enhancements. The court conducted a full resentencing hearing and imposed the midterm of seven years for attempted murder, but declined to dismiss the enhancements or further reduce defendant’s sentence. Instead, the court again sentenced him to life in prison with the possibility of parole for premeditated attempted murder and 50 years to life for the two firearm enhancements. On appeal from the resentencing order, appellate counsel filed a brief that summarized the facts with citations to the record, raised no issues, and asked this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) In response to this court’s notice, defendant filed a supplemental letter brief and raised several issues. We address his issues and affirm. 1 All further statutory citations are to the Penal Code. 2.  FACTS2 “On May 12, 2004, defendant was a passenger in a car with five other occupants— Rachel [M.] (the driver), Gina [G.], Sandra [D.] (defendant’s sister), Anthony [G.], and Elinerto [V.] Defendant sat in the back seat with Anthony Garcia and Elinerto Vela. That night, defendant and the other passengers were driving around looking for defendant’s brother, Ezekial DeLeon. “While they were looking for Ezekial, one of the males sitting in the back seat ordered Rachel to stop the car [when they were on Highway 178 near Mesa Marin, about 10 miles east of Bakersfield. After she pulled the car over to the side of the road, all three of the men in the back seat got out of the car. Defendant allegedly told Elinerto and Anthony to ‘post up,’ which meant for them to look out for other people who might be in the area. Thereafter, defendant pointed a gun at Anthony and asked him where Ezekial was located. Anthony told defendant he did not know, and defendant then shot him in the face. The gunshot blew a hole through the top of Anthony’s mouth and created a one and three-quarter-inch scar on his face. “Rachel heard a single gunshot and noticed that defendant was the only one of the three males to get back into the car. She then looked in her side-view mirror and saw one of the men lying on the ground. Rachel drove away and dropped the passengers off. “After he was shot, Anthony was able to walk to a nearby apartment complex, where he summoned help. Richard Dossey, a police officer with the City of Bakersfield, responded to Anthony’s call for help. He told Dossey that he had been shot by a 2 After notice to the parties and without objection, we take judicial notice of the records before this court, including our nonpublished opinion, from defendant’s appeal in (People v. DeLeon (Apr. 17, 2006, F046747) [nonpub. opn.] (DeLeon I) from which the following facts are taken. 3. Hispanic man who had the nickname of ‘Dopey.’ Anthony described two tattoos that Dopey had on his body, and defendant stipulated that he had these tattoos. At the hospital, Dossey showed Anthony a photograph of defendant, and Anthony identified defendant as the person who shot him.” (DeLeon I, supra, F046747.) At 3:00 a.m. on May 13, 2004, Chris Ward, a police officer with the City of Bakersfield, responded to a call involving a shooting. Ward found Elinerto on the side of Kern Canyon Road. Elinerto had a gunshot wound to the top of his forehead, he was covered in blood, and he was “babbling incoherently.” Elinerto was unable to respond to Ward’s questioning. “Christina [M.], the fiancée of defendant’s brother Vincent, testified [for the defense] that she was with defendant on the night in question. They met at 11:30 p.m. and were together until 3:10 [a.m.] or 3:15 a.m.” (DeLeon I, supra, F046747.) PROCEDURAL BACKGROUND Defendant was charged with counts 1 and 2, the attempted murders of, respectively, Elinerto and Anthony (§§ 664, 187, subd. (a).) As to both counts, it was alleged the offenses were committed willfully, deliberately, and with premeditation (§§ 189, 664, subd. (a)); that defendant personally and intentionally discharged a firearm that caused great bodily injury or death (§ 12022.53, subd. (d)); and he had prior prison term enhancements (§ 667.5, subd. (b)). On September 17, 2004, jurors convicted defendant of counts 1 and 2, attempted murder, and found true both attached firearm enhancements. The jury found the premeditation allegation true as to count 2, the attempted murder of Anthony. The jury did not make a finding on the premeditation allegation as to count 1, the attempted murder of Elinerto. The trial court found the prior prison term enhancements true. On November 12, 2004, the trial court found circumstances in aggravation and sentenced defendant to the upper term of nine years for count 1, the attempted murder of Elinerto, plus 25 years to life for the section 12022.53, subdivision (d) firearm 4. enhancement and one year for the prior prison term enhancement; and as to count 2, life with the possibility of parole for the premeditated attempted murder of Anthony, plus 25 years to life for the firearm enhancement and one year for the prior prison term enhancement, consecutive to the sentence imposed for count 1. This court affirmed the judgment on direct appeal. SECTION 1172.75 PETITION FOR RESENTENCING On July 25, 2023, the public defender’s office, representing defendant, filed a petition for recall and resentencing pursuant to section 1172.75. Defendant asked the trial court to strike the prior prison term enhancements because they were now legally invalid and to conduct a full resentencing hearing. Defendant also asked that the trial court reduce the sentences for the two section 12022.53, subdivision (d) firearm enhancements from 25 years to life to determinate terms of 20 years under subdivision (c). He asked the court to impose the midterm of seven years for count 1, attempted murder, instead of the upper term of nine years. The public defender advised they did not have access to defendant’s file. On the same date, the trial court set a September hearing date, ordered a supplemental probation report, and notified the prosecutor about defendant’s section 1172.75 petition. Continuances and First Substitution of Counsel3 On September 14, 2023, because the public defender had declared a conflict in January 2023, the trial court appointed Roger Lampkin as conflict counsel and continued 3 In defendant’s supplemental letter brief on appeal, he raises several issues about the trial court’s grant of multiple continuances, his absences from status hearings, and erroneous notations in minute orders that his pending petition was for resentencing under section 1172.6. We review the procedural history of the status hearings and continuances, and address defendant’s contentions below. 5. the matter. Defendant was not present at this hearing because he was “medically unavailable” and in “quarantine.” On November 16, 2023, defendant was present in court with Lampkin. Because Judge Bush, defendant’s trial judge, was unavailable, the case was trailed for a hearing on the supplemental probation report. On November 30, 2023, Judge Bush convened a status hearing. Lampkin stated defendant was in local custody but had not been transported. Counsel was directed to contact defendant and advise the court if defendant wished to return to state prison. Lampkin said he believed he could appear in defendant’s absence under section 977, and requested a continuance because he needed to obtain more information about the case.4 The court granted the continuance and set the resentencing hearing for February 2, 2024. On December 7, 2023, defense counsel advised the trial court that defendant wished to return to state prison and counsel would prepare a removal order for the resentencing hearing that remained set for February 2, 2024.5 Second Substitution of Counsel On February 2, 2024, Lampkin advised the trial court that defendant had not been transported and could not appear on video conference. Lampkin declared a conflict and the court granted his motion to be relieved. The court appointed new counsel and continued the matter. On February 14, 2024, the trial court convened another status hearing and stated that defendant refused to appear on video conference. Steven Meister accepted 4 A defendant may waive his or her statutory right to be present in a felony matter pursuant to the provisions of section 977. In issue III, we address defendant’s argument that he never gave counsel authorization under section 977 to waive his presence. 5 The minute orders for the court’s status hearings in September 2023 stated the hearings were for defendant’s section 1172.75 petition for resentencing. As discussed in issue IV, the minute orders for November and December 2023, had the erroneous notations that the status hearings were for a section “1172.6” resentencing hearing. 6. appointment to represent defendant, stated he expected to obtain the file soon, and requested a status hearing in May 2024. The court continued the matter. Thereafter, from May to November 2024, the trial court conducted status hearings and either implicitly or explicitly found good cause to grant additional continuance motions made by both parties. At each hearing, Meister appeared for defendant, who was not present. On November 14, 2024, the trial court convened another status hearing. Defendant was not present. Meister stated that he had reviewed defendant’s file, and was prepared to file a brief and schedule the resentencing hearing. The court set the resentencing hearing for January 29, 2025, and asked counsel if defendant wanted to appear personally or by video conference. Counsel said he would find out and inform the court. Defendant’s Section 1172.75 Resentencing Brief On December 11, 2024, Meister, on behalf of defendant, filed the section 1172.75 resentencing brief. In the brief, defendant argued he was entitled to a full resentencing hearing under section 1172.75 because his aggregate sentence included prior prison term enhancements that were now invalid. Defendant requested the trial court dismiss the invalid prior prison term enhancements, strike all other enhancements, and impose concurrent lower or middle determinate terms for counts 1 and 2. Defendant asserted the trial court was required by section 1172.75 to consider certain postconviction factors, including his disciplinary and rehabilitation records in prison, and resentence him based on ameliorative amendments to relevant statutes. His brief was supported by a list of rehabilitative programs he completed. 7.  On January 28, 2025, the trial court granted a motion by both parties to reset the resentencing hearing from January 29 to April 10, 2025.6 SECTION 1172.75 RESENTENCING HEARING On April 10, 2025, Judge Bush convened the resentencing hearing. Meister represented defendant. Defendant initially appeared by video conference until there was a problem with the video. At that point, the trial court asked defendant if he wanted the hearing to continue and appear only by telephone. Defendant agreed to proceed with the hearing by listening via telephone without video from within the courtroom. Meister advised defendant that his wife and sister were in the courtroom. The trial court stated that it was conducting a resentencing hearing under section “1172.6,” and that defendant was entitled to be fully resentenced because his sentence included prior prison term enhancements that were now invalid.7 The trial court further stated that while it presided over defendant’s jury trial, it had a limited memory of the case and had reviewed defendant’s resentencing brief and the probation report. The prosecutor stated he did not file a written brief but he was prepared to argue the case. Defense Counsel’s Arguments Meister argued defendant’s brief showed he “very dedicatedly” engaged in rehabilitative opportunities and he had done “quite well” over the years in self-help groups including Criminal and Gang Members Anonymous, Narcotics Anonymous, and Alcoholics Anonymous. He had different jobs in the dining hall and kitchen, and as a 6 Again, as discussed in issue IV, the minute orders for the trial court’s status hearings held from February to November 2024, and on January 28, 2025, erroneously stated the hearings were for defendant’s “section 1172.6” resentencing. 7 As discussed in issue IV, while the trial court initially and erroneously cited section 1172.6, it conducted the entirety of the resentencing hearing consistent with the provisions of section 1172.75. 8. porter, and he participated in adult basic education, clothing distribution, and prerelease educational classes. Meister acknowledged defendant also had “a disciplinary history that concerns me,” but “once you balance that” with his rehabilitative work, “the violence and the discipline alone is no longer the measure of the man, and that’s why I think he is entitled to some … relief.” As Meister made these arguments, defendant interrupted and personally addressed the trial court. Defendant asked if the court received two letters of remorse that he wrote. Defendant explained he sent the letters to his wife, so she could forward the letters to his attorney and the court. After a brief discussion, defendant’s wife stated she had the letters on her phone. The court asked defendant’s wife to transmit the documents, she did so, and the court and both parties acknowledged receipt. The Prosecutor’s Arguments and Defendant’s Interruptions The prosecutor began his argument by stating that while defendant was assigned to various jobs and groups in prison, he was also “unassigned” from some of these assignments because of disciplinary issues. The prosecutor cited defendant’s criminal history and introduced his “rap” sheet without objection. His record began in 1990 as a juvenile, then advanced to possession of a sawed-off rifle in 1993, another gun possession in 1997, and a conviction for gang participation in 2001. The prosecutor argued that defendant was 27 years old when he committed the attempted murders, and he was not “a wayward youth” or within the youthful parole provisions. The prosecutor argued the facts of the two attempted murders were “absolutely incredible” and showed defendant was a danger to the community “As a grown man, [defendant] induced two individuals and I believe a third female and went with them out to the mouth of the canyon, a remote area of the county, and then shot both of them in the head and left them for dead.… [I]t is absolutely amazing that this was not a double homicide as opposed to just attempted murder.” 9.  Defendant interrupted, addressed the trial court, and said, “[n]one of my history is serious[,]” and “[n]othing I’ve been locked up for is violent.” The court advised defendant that he would have the opportunity to speak later in the proceedings. The prosecutor argued the trial court would have to “exercise absolutely extraordinary discretion” to strike the premeditation finding and firearm enhancements, and the facts did not support the exercise of such discretion. The prosecutor asserted defendant was not a model inmate and, while he participated in some programs, “that doesn’t even begin to undercut the serious threat he poses to the community and the absolute serious nature of this offense.” The prosecutor again stated that it was “incredible” this case did not involve two homicides since defendant shot both victims in the head and left them for dead in a remote location. Defendant again interrupted and said: “It doesn’t matter. They’re not dead, though. You know what I mean? Nobody died.” Both the trial court and defense counsel advised defendant to stop talking, and defendant said he would. The prosecutor continued his argument by citing defendant’s statements, that “ ‘it doesn’t matter, that they’re not dead,’ ” and asserted defendant’s criminal behavior was “abhorrent,” and the trial court should impose the indeterminate sentences for premeditated attempted murder and the firearm enhancements. Defendant once again interrupted and said: “You can’t even do that by law. What the [f***] you talking about, man? The f[***]? Who are you, man? Like I’m—this is a life sentence that I’m unjustly serving, man. Like, you guys are really sitting right here and telling me that? Come on, man. This … this affects me, man.” The trial court advised defendant that his wife was shaking her head in the courtroom. The court added that it thought defendant was “digging a hole.” Defendant 10. said he was just trying to speak for himself. Defendant’s wife spoke from the audience and said, “I just would like him to be calm.” The prosecutor concluded that under section “1172.[7]5,” the trial court should reimpose the life sentences because defendant presented a danger to the community. Defendant’s Additional Statements Meister submitted the matter, and advised defendant that if he wanted to speak again, he should only address his rehabilitation efforts and not the facts of the underlying offenses. Defendant addressed the trial court and said he would respect the court’s sentencing decision as long as it read his letters. He continued: “But … I’ve been here 21 years, Judge, and I feel like I’m—I accept responsibility for my action and … I’m not a kid no more, and I can say today that I’m going to get out there and commit no crime or do anything like this ever again. Like this ain’t me no more. “I mean, the reason why I spoke up was because he’s trying to make me look bad for these 21 years for this crime already, and I feel like that’s enough time. I deserve to be out there with my family. You know what I mean? And … like I said, as long as you read the letter[s], I’m cool with that, but I’m going to tell you this. … I’ll never come back to prison ever again if you let me out. “I want to go home to my family today. You hear me? Like I said, Judge … I just wanted to speak up for myself because he was trying to make it seem like I’m a bad person. That was 21 years ago. You know what I mean? Regardless of … what I’ve been doing in here, I’m going to right now; right?” The Trial Court’s Resentencing Order The trial court stated it reviewed defendant’s hearing brief and his letters, but it could not overlook “that these two [victims] were shot in a very horrendous manner.” The court stated that before defendant made his statements at the hearing, it had decided to reduce the determinate term for count 1, attempted murder, from the upper term of 11. nine years to the midterm of seven years. The court was rethinking the decision after hearing defendant’s statements. The trial court, however, decided it would still impose the midterm of seven years for count 1, and that was the only modification it would make to defendant’s aggregate sentence. The court stated, when defendant committed the attempted murders, he had been released from prison and on parole for only four days. The court recognized there were mitigating factors under section 1385, subdivision (c), that the enhancements would result in defendant’s sentence exceeding 20 years and multiple enhancements were alleged in a single case, but there were also two different victims. The trial court stated it had discretion to strike or reduce the enhancements but declined to do so. Defendant introduced evidence that he was doing “some good things in prison” and the court encouraged him to continue to do so because the law was “ever changing.” The trial court dismissed the two prior prison term enhancements. As to count 1, attempted murder, the court imposed the midterm of seven years, plus 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. As to count 2, premeditated attempted murder, the court again imposed consecutive terms of life with the possibility of parole, with a minimum eligible parole date of seven years, plus 25 years to life for the firearm enhancement.8 Appellate Filings and Orders On April 10, 2025, defendant filed a timely notice of appeal from the trial court’s resentencing order under section “1172.75.” 8 The April 10, 2025 minute order stated the trial court conducted a section 1172.75 resentencing hearing. 12.  On June 9, 2026, appellate counsel filed an opening brief pursuant to Wende. On the same date, this court sent the appropriate notice to defendant that he could file a supplemental letter brief raising appellate issues within 30 days. On July 2, 2026, defendant, acting in propria persona, filed a request with this court for an extension of time to file his supplemental letter brief. He also requested this court augment the appellate record to include (1) any materials filed in the trial court pursuant to section 1172.6; and (2) any materials showing that his defense attorney had authority under section 977 to waive defendant’s presence at the trial court’s hearings. On July 13, 2026, this court filed an order that granted defendant’s request for an extension of time of 30 days to file his supplemental letter brief, and denied his requests to augment the record: “In addition to being untimely, ‘neither the party himself nor another attorney can be recognized’ to make such a request before the court.” On August 5, 2026, defendant filed a supplemental letter brief raising several issues on appeal, which we address below. DISCUSSION I. Recall and Resentencing Under Section 1172.75 We begin with the trial court’s jurisdiction to recall defendant’s sentence, and the requirement for the court to conduct a full resentencing based on applicable sentencing statutes that were amended after he was originally sentenced in 2004. A. Prior Prison Term Enhancements “In … section 1172.75, the Legislature declared that, aside from enhancements imposed for sexually violent offenses, ‘[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to’ … section 667.5, subdivision (b) ‘is legally invalid.’ [Citation.] In the same provision, the Legislature established a mechanism for resentencing individuals ‘currently serving a term for a judgment that includes’ such an enhancement.” (People v. Rhodius (2025) 17 Cal.5th 1050, 1053–1054.) 13.  “Subdivision (b) of section 1172.75 directs the Secretary of the Department of Corrections and Rehabilitation (CDCR) and the correctional administrator of each county to ‘identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a) and … provide the name of each person … to the sentencing court that imposed the enhancement.’ ” (People v. Burgess (2022) 86 Cal.App.5th 375, 380.) “After the trial court receives from … CDCR and county correctional administrator the information included in subdivision (b) of section 1172.75, ‘the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a),’ and if so, ‘recall the sentence and resentence the defendant.’ ” (Burgess, at p. 380; § 1172.75, subd. (c)(2).) “By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.” (People v. Monroe (2022) 85 Cal.App.5th 393, 402.) “The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).) “The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3).) Section 1172.75, subdivision (d) “vests the superior court with broad discretion based on an inherently factual inquiry” in resentencing a defendant, and we review the resentencing order for an abuse of that discretion. (People v. Garcia (2024) 101 Cal.App.5th 848, 856–857.) 14.  B. Firearm Enhancements Defendant’s aggregate sentence included two terms of 25 years to life attached to counts 1 and 2, for the personal and intentional discharge of a firearm that caused great bodily injury or death to the victims, pursuant to section 12022.53, subdivision (d). “Before January 1, 2018, section 12022.53 prohibited courts from striking its enhancements. Former subdivision (h) of section 12022.53 provided: ‘Notwithstanding [s]ection 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.’ [Citation.] Thus, if a section 12022.53 enhancement was alleged and found true, its imposition was mandatory.” (People v. Tirado (2022) 12 Cal.5th 688, 695 (Tirado).) “In 2017, the Legislature enacted Senate Bill No. 620 (2017–2018 Reg. Sess.) …, amending section 12022.53, [subdivision] (h) to remove this prohibition. [Citation.] Section 12022.53[, subdivision] (h) now provides that a ‘court may, in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.’ ” (Tirado, supra, 12 Cal.5th at p. 696.) The trial court thus has discretion to strike a section 12022.53 enhancement and impose a lesser included, uncharged section 12022.53 enhancement when the facts supporting the lesser enhancement were alleged and found true by the jury. (Tirado, supra, 12 Cal.5th at p. 692.) The court also has the discretion “to impose a lesser included, uncharged enhancement authorized elsewhere in the Penal Code—that is, outside of section 12022.53,” if supported by facts that were alleged and found true. (People v. McDavid (2024) 15 Cal.5th 1015, 1021, 1030; Tirado, at p. 697.) We review the trial court’s determination whether to dismiss a firearm enhancement or to impose a lesser included, uncharged enhancement for an abuse of discretion. (People v. Gonzalez (2024) 103 Cal.App.5th 215, 225.) We will not disturb the court’s ruling unless the court exercised its discretion in an arbitrary, capricious, or 15. patently absurd manner that results in a manifest miscarriage of justice. (People v. Williams (2013) 58 Cal.4th 197, 270–271.) C. Section 1385 Defendant’s hearing brief requested that the trial court impose an aggregate determinate sentence and dismiss all enhancements pursuant to section 1385, which would include the jury’s true finding on the premeditation allegation on count 2. “Prior to January 1, 2022, section 1385 provided trial courts with discretion to dismiss sentencing enhancements in the interest of justice. The statute did not provide direction as to how courts should exercise that discretion. In October 2021 the Legislature passed and the Governor signed Senate Bill No. 81 (2021–2022 Reg. Sess.) …, which, effective January 1, 2022, amended section 1385 to provide guidance regarding the exercise of discretion in dismissing sentencing enhancements,” and added subdivision (c). (People v. Anderson (2023) 88 Cal.App.5th 233, 238.) Section 1385, subdivision (c) now provides in relevant part: “(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. [¶] (2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” (§ 1385, subd. (c)(1)–(2).) The listed mitigating circumstances include: “Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed,” and “The application of an enhancement could result in a sentence of over 16. 20 years. In this instance, the enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(B), (C).) “Section 1385[, subdivision] (c) does not mean that, whenever a listed mitigating circumstance is present, the trial court must dismiss all enhancements unless it finds dismissal would endanger public safety. [Our] Supreme Court has explained that, even without ‘a finding that dismissal would endanger public safety,’ the trial ‘court retains the discretion to impose or dismiss enhancements provided that it assigns significant value’ to the presence of any listed mitigating circumstances.” (People v. Bravo (2025) 107 Cal.App.5th 1144, 1157, citing People v. Walker (2024) 16 Cal.5th 1024, 1029.) The trial court’s discretion to dismiss enhancements under section 1385, however, does not extend to the jury’s finding that an attempted murder was committed willfully, deliberately, and with premeditation, because a section 664, subdivision (a) premeditation finding is not an enhancement but states an alternate penalty provision for attempted murder. (People v. Serrano (2024) 100 Cal.App.5th 1324, 1337–1340.) D. Analysis At the April 10, 2025 resentencing hearing, the trial court acknowledged defendant’s aggregate sentence included two years for prior prison term enhancements that were now invalid under section 1172.75. The court complied with requirements of section 1172.75 and recalled defendant’s sentence, dismissed the prior prison term enhancements, and conducted a full resentencing hearing on all aspects of defendant’s aggregate sentence. In his hearing brief, defendant argued the trial court had to consider his rehabilitation efforts in prison and letters of remorse, dismiss all enhancements, and resentence him to concurrent determinate terms for counts 1 and 2, and impose lower or midterms for both counts. At the conclusion of the resentencing hearing, the trial court decided not to reimpose the upper term of nine years for count 1, attempted murder, and instead 17. imposed the midterm of seven years. As to count 2, however, the court did not have discretion under section 1385, subdivision (c) to dismiss the premeditation finding attached to that attempted murder conviction, and the court was still required to impose life with the possibility of parole. The trial court recognized there were mitigating factors because multiple enhancements were alleged and the application of an enhancement would result in a sentence of more than 20 years. (§ 1385, subd. (c)(2)(B), (C).) While the court found defendant had taken certain classes and was assigned prison jobs, it was concerned about defendant’s disciplinary record and the violent facts of the crimes. The trial court declined to exercise its discretion to dismiss or impose a lesser term for the two firearm enhancements because it could not overlook the facts of the crimes, “that these two [victims] were shot in a very horrendous manner,” defendant had been released on parole just four days before he committed the attempted murders, and defendant’s statements at the resentencing hearing about his crimes, that “ ‘[i]t doesn’t matter. They’re not dead, though. You know what I mean? Nobody died.’ ” As a result of the amendments to section 1385, “the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that ‘may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.’ ” (People v. Walker, supra, 16 Cal.5th at p. 1029, italics added.) The trial court did not abuse its discretion and its resentencing order is supported by the record. II. The Trial Court’s Grant of Continuances In his supplemental letter brief, defendant asserts this case “had a mind of its own” because his resentencing hearing was repeatedly delayed, it was finally held in April 2025, and it occurred nearly two years after the public defender filed his section 1172.75 petition in July 2023. 18.  A trial court has broad discretion to determine whether good cause exists to grant a continuance, and that determination is reviewed for an abuse of discretion. (People v. Wilson (2024) 16 Cal.5th 874, 939.) A continuance for defense counsel to prepare to represent defendant constitutes good cause. (Id. at pp. 939–940.) A defendant’s illness preventing an appearance also constitutes good cause for a continuance. (People v. Avila (2004) 117 Cal.App.4th 771, 777.) In addition, a court does not abuse its discretion when it proceeds with a hearing when the defendant refuses to appear. (People v. Kirvin (2014) 231 Cal.App.4th 1507, 1516; People v. Pigage (2003) 112 Cal.App.4th 1359, 1369.) The trial court did not abuse its discretion and had good cause to continue this matter for specific reasons, including that the public defender declared a conflict and new counsel needed time to prepare, defendant was sick and in quarantine and unable to appear by video conference, the judge who presided over defendant’s jury trial was unavailable, defendant refused to appear at another hearing, his second counsel declared a conflict, the court appointed a third counsel to represent defendant, new counsel needed time to prepare, and both parties requested and obtained continuances because of calendar conflicts. Defendant’s counsel filed the section 1172.75 hearing brief on December 11, 2024, the trial court granted the parties’ motion to reset the resentencing hearing from January 29 to April 10, 2025, and the resentencing hearing was held on April 10, 2025. As for the two-year delay, such a delay for a postjudgment resentencing hearing is not unreasonable under the circumstances, considering that “[i]n a death penalty case, a two-year delay in proceeding to trial ‘is not inordinately long.’ ” (People v. Wilson, supra, 16 Cal.5th at p. 940.) III. Defendant’s Absence From the Status Hearings In his supplemental letter brief, defendant argues that when the trial court conducted status hearings and continued the matter, defendant was absent in violation of his federal and state constitutional rights, and there is no evidence any of his attorneys 19. had authority under section 977 to waive his presence at those hearings. Defendant argues his defense attorneys were prejudicially ineffective for waiving his presence without proper authorization, and the court’s resentencing order must be reversed because of these prejudicial errors. A. Constitutional and Statutory Rights to Presence “ ‘A criminal defendant accused of a felony has the constitutional right to be present at every critical stage of the trial.…’ [Citations.] ‘A critical stage of the trial is one in which a defendant’s “ ‘absence might frustrate the fairness of the proceedings’ [citation], or ‘whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge’ [citation].” ’ ” (People v. Oyler (2025) 17 Cal.5th 756, 795.) A criminal defendant’s right to be personally present at trial is also guaranteed “by section 15 of article I of the California Constitution and by sections 977 and 1043.” (People v. Concepcion (2008) 45 Cal.4th 77, 81 (Concepcion).) “Sentencing and resentencing hearings are critical stages in a criminal proceeding. [Citations.] Courts have consistently held that a defendant has a right to be present at proceedings that are ‘akin to a plenary sentencing hearing.’ [Citation.] This includes proceedi