Court of Appeal:
Pandemic Did Not Justify Sentencing Absent Defendant
Panel Rejects Position of A.G.’s Office That Under Emergency Rule, Lawyer’s Representation That His Client
Was In Quarantine in Jail and Had Authorized Him to Waive Her Appearance and Proceed, Was Sufficient
By a MetNews Staff Writer
A judge erred in sentencing a defendant who was not present in court and had not waived her presence in writing, the Court of Appeal for this district held yesterday, spurning the assertion by the Office of Attorney General that the judge did precisely what an emergency statewide court rule, promulgated in light of the COVID-19 pandemic, permitted.
Acorri Patton will get a new sentencing hearing for the robbery she committed in 2017, under an unpublished opinion by Justice Dorothy Kim of Div. Five. Her opinion reverses the six-year prison term imposed by Los Angeles Superior Court Judge Daviann L. Mitchell.
Patton was not in court because she was quarantined in a county jail cell. Mitchell said, at the hearing on May 26, 2022:
“All right. The defendant is not in court. And do you waive her appearance? She’s a medical missout due to quarantine. And do you do that?”
Her lawyer answered, “Yes,” and the judge continued:
“And based on our conversation this morning, and [defendant] giving you authority to hear this matter pursuant to §977(b)..., do you want to proceed in that manner?”
The lawyer again said, “Yes.”
Penal Code §977(b) provides that “the accused shall be personally present… at the time of the imposition of sentence” unless he or she “with leave of court” executes “in open court, a written waiver” of the right to be present.
Emergency Rule 5
Although there was no written waiver by Patton, Emergency Rule 5 (now sunsetted), promulgated by the Judicial Council on April 6, 2020, in response to the COVID-19 pandemic, and in effect at the time of the hearing, said that “[w]ith the consent of the defendant, the court must allow a defendant to waive his or her appearance and permit counsel to appear on his or her behalf.”
The rule declared:
“Notwithstanding any other law, including Penal Code sections 865 and 977, this rule applies to all criminal proceedings.”
It also provided:
“The court must accept a defendant’s waiver of appearance or personal appearance when:
“(A) Counsel for the defendant makes an on the record oral representation that counsel has fully discussed the waiver and its implications with the defendant and the defendant has authorized counsel to proceed as counsel represents to the court;
“(C) Any other means that ensures the validity of the defendant’s waiver.”
The rule does not say whether the court “may” accept a waiver in the absence of circumstances rendering acceptance mandatory and does not provide guidance as to whether a lawyer’s assurances in chambers before the hearing “ensures the validity of the defendant’s waiver.”
“Emergency rule 5 required defendant’s counsel to ‘fully discuss’ with her the waiver of her presence at the resentencing hearing, including specifically the ‘implications’ of doing so. The transcript of the hearing, however, does not show that counsel complied with these requirements. At best, it shows that defendant gave counsel authority to represent her at the hearing, but not that she had ‘fully discussed the wavier [sic] and its implications’ with her lawyer. (Emergency rule 5.) On this record, we conclude that the express requirements of the Emergency rule were not satisfied.”
“For similar reasons, we also reject the Attorney General’s assertion that there was substantial compliance with section 977 and Emergency rule 5….
“Defense counsel’s brief statements at the beginning of the hearing about his client’s appearance fall short of actual compliance with the requirements of section 977 and Emergency rule 5 and cannot fairly be characterized as mere technical deviations from such requirements. Defense counsel was never asked and did not volunteer whether he had advised defendant that she had the right to attend the resentencing hearing and participate in her defense and that she nevertheless voluntarily gave up that right.”
The case is People v. Patton, B320626.
Kim also authored the Nov 1, 2021 opinion reversing Patton’s conviction for first degree murder on the ground that the requisites of the murder statute, as revamped to virtually abolish the felony-murder rule, were not met. Patton’s boyfriend/co-conspirator fatally stabbed the robbery victim.
“As to Patton, the Attorney General does not contest that the evidence was not sufficient to show that she was the actual killer of the victim or aided and abetted in the murder with the intent to kill,” the justice wrote.
She said “the evidence was insufficient to show that” Patton, in participating in the robbery, “acted with reckless indifference to human life,” so as to be rendered criminally liable for the slaying.
Mitchell, in initially sentencing Patton for murder and robbery, stayed execution of a six-year sentence for the robbery. On remand following the 2021 Court of Appeal decision, she re-sentenced Patton to six years based on the robbery, which gave rise to the appeal decided yesterday.
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