P. v. Payton

Filed 6/25/07 P. v. Payton CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Defendant Isaiah Ivory Payton was convicted of robbery (Pen. Code, 211), and the jury found he personally used a firearm in the commission of the offense. (Pen. Code, 12022.53, subd. (b).) On appeal, he contended that imposition of the upper term for the robbery violated the holding in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely) and that, in any event, the factor upon which the trial court relied was insufficient to support the upper term.

On January 18, 2006, we affirmed the judgment. After the United States Supreme Court issued its decision in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham), we granted defendants motion to recall the remittitur and to file a supplemental brief addressing Cunningham issues only. We again shall affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

On March 13, 2003, defendant and his codefendant, Lishane Rodriguez, robbed Aaron Fish at gunpoint. Shortly thereafter, they were arrested at a nearby light rail station.

The trial began on September 15, 2004, with defendant present. When defendant failed to appear on September 23, the judge found that he had voluntarily absented himself from the proceedings, probably because he reasonably believed, I suspect, that a jury would return a verdict. The prospects for that verdict being against him are very high. This is a very strong case. The only remaining witness to be heard was the officer who took his confession, his [M]irandized confession, to the crime charged against him. The judge issued a warrant for defendants arrest, and the trial proceeded in his absence. The jury returned verdicts against defendant.

On October 22, 2004, defendant was sentenced in absentia to the upper term of five years for the robbery, plus a consecutive term of 10 years for the gun use enhancement. Relying on People v. Levingston (1982) 136 Cal.App.3d 724, the judge said that he was imposing the upper term because defendant had absconded and that the sentence would be reconsidered if he surrendered and appeared before the court within 14 days.

Defendant did not voluntarily surrender. Instead, he was arrested and next appeared in court on December 3, 2004. After the matter was continued to December 13, defendant said that he absconded because he was frightened at the prospect of facing 12 years in prison. The judge found defendant took advantage of a latitude that was accorded [to him] by the judicial system, and . . . undermined the process by which we attend to cases brought to us for justice. The court stated but for your abscond situation I would have given you the mid-term. I gave you the upper term because you absconded and you failed to appear for the conclusion of your trial, as well as for your sentencing. The court then let stand the previously imposed prison sentence of 15 years.

DISCUSSION

I

Defendant contends the trial courts imposition of the upper term violated the Sixth Amendment to the United StatesConstitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403], and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856].

Apprendi held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)

Accordingly, in Cunningham, the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 on this point, vacated in Black v. California (2007) __ U.S. __ [167 L.Ed.2d 36].)

Apprendi error--that is, error in failing to submit a punishment-increasing factual issue to the jury--is subject to harmless error analysis under the beyond-a-reasonable-doubt test of Chapman v. California [1967] 386 U.S. [18,] 23 [17 L.Ed.2d 705]. [Citation.] Indeed, even when jury instructions completely omit an element of a crime, and therefore deprive the jury of the opportunity to make a finding on that element, a conviction may be upheld under Chapman where there is no record . . . evidence that could rationally lead to a contrary finding with respect to that element. [Citations] (People v. Davis (2005) 36 Cal.4th 510, 564.)

Here, the court imposed the upper term because defendant had absconded during trial. As the People point out, because defendant admitted this fact, explaining that he absconded because he was frightened over the possibility of a long prison term, it is a fact upon which the court could rely without violating defendants right to trial by jury. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413]; United States v.Booker (2005) 543 U.S. 220, 244 [160 L.Ed.2d 621, 650].) In any event, even if defendants concession was not an admission within the meaning of Apprendi, Blakely, and Cunningham, the fact that he absconded during trial is irrefutable. Therefore, the failure to submit that fact for a jury finding is harmless beyond a reasonable doubt. (U.S. v. Zepeda-Martinez (9th Cir. 2006) 470 F.3d 909, 913 [Apprendi error is harmless when the record contains overwhelming and uncontraverted evidence supporting the sentencing factor].)

II

Defendant contends his flight from trial and failure to appear at sentencing was an insufficient reason to impose the upper term. We disagree.

A trial court has wide discretion in sentencing (People v. Scott (1994) 9 Cal.4th 331, 349), and its decision must be upheld absent a clear showing of abuse of discretion. (People v. Giminez (1975) 14 Cal.3d 68, 72.) Abuse of discretion means an arbitrary determination, capricious disposition, or whimsical thinking. (People v. Sword (1994) 29 Cal.App.4th 614, 626.) As we will explain, there was no abuse of discretion in this case.

Only one factor in aggravation is necessary to justify the upper term; thus, the balancing of factors is a qualitative, not quantitative, one. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Castaneda (1999) 75 Cal.App.4th 611, 615.)

Defendants flight during trial and failure to appear at the sentencing hearing is an appropriate factor in aggravation because it constituted manipulative defiance of the law that reflected adversely upon his attitude towards the offense, and his amenability to rehabilitation. (People v. Levingston, supra, 136 Cal.App.3d at pp. 729-730.)

Citing People v. Piceno (1987) 195 Cal.App.3d 1353 (hereafter Piceno), defendant contends that even if flight, by itself, can theoretically support the aggravated term, Piceno teaches that the court of appeal must look closely at the cited factor to assess whether, under the facts of the case, it is legally sufficient to support the sentence.

Timothy Piceno was convicted of vehicular manslaughter without gross negligence and was sentenced to the upper term in state prison because of his juvenile record, the vulnerability of the victim, and the fact the crime involved great danger of bodily harm. (Piceno, supra, 195 Cal.App.3d at p. 1355.) After finding that the latter two factors were erroneous, the Court of Appeal turned to the first factor. (Id. at pp. 1357, 1359.) Noting Picenos juvenile record was minor and had occurred long before the manslaughter, the court observed that (1) Piceno had just turned 18 when he committed the crime, (2) he voluntarily acknowledged the wrongdoing from the very beginning and had demonstrated a sincere remorsefulness throughout the proceeding, and (3) he had worked hard to overcome learning disabilities and had never presented a behavior problem in school. (Id. at p. 1360.) In light of these factors, the court held that Picenos stale juvenile record was insufficient as a matter of law to aggravate the sentence. (Id. at pp. 1360-1361.)

Defendant attempts to compare himself favorably to Piceno, noting that defendant was young, 18 years old, when he committed the robbery and that he readily admitted his involvement in the crime. In the view of his counsel, defendants flight simply reflected the fear of a somewhat inarticulate but clearly frightened boy and did not demonstrate impairment of character or lack of amenability to rehabilitation. We are unpersuaded.

Defendants flight from trial and absence at sentencing was not the first time that he, in the astute words of the trial judge, took advantage of a latitude that was accorded [to him] by the judicial system, and . . . undermined the process by which we attend to cases brought to us for justice. In March 2001, he absconded from his fathers custody while on a home pass from a youth center. In addition, he twice violated probation in 2000, when he left his residence without permission and failed to return. This demonstrates a pattern of defendant seeking to evade the consequences of his actions by fleeing. And the fact that he did not voluntarily surrender for sentencing is contrary to the notion that he has demonstrated a sincere remorsefulness for his actions.

Under the circumstances, the trial judge acted well within his discretion in concluding that defendants flight reflected poorly on his character and prospects for rehabilitation and,

therefore, in imposing the upper term for robbery. (People v. Levingston, supra, 136 Cal.App.3d at p. 729.)

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

NICHOLSON , J.

ROBIE , J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.