Opinion
D071238
09-21-2017
THE PEOPLE, Plaintiff and Respondent, v. ANGELA E. ANDERSON, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD263909) APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Angela E. Anderson and a codefendant, Frederick Weekly, were charged with murder (Pen. Code, § 187). Anderson entered into a plea agreement, under which she pleaded guilty to voluntary manslaughter (§ 192, subd. (a)). Anderson's codefendant went to trial and was convicted of first degree murder prior to Anderson's sentencing.
All further statutory references are to the Penal Code unless otherwise specified.
Anderson filed an extensive statement in mitigation and the prosecution filed a statement in aggravation. The court sentenced Anderson to the upper term of 11 years in prison.
Anderson appeals contending the trial court erred in selecting the upper term of imprisonment. In this case the sentencing judge presided over the preliminary hearing, accepted Anderson's plea and then presided over the codefendant's jury trial. Anderson argues she was denied due process because the trial court said it could consider facts from the jury trial at Anderson's sentencing, although the court said it did not need to do so because the court had presided over the preliminary hearing prior to the guilty plea. Anderson contends any evidence produced at the codefendant's trial would be inherently "unreliable" for consideration in the selection of the appropriate prison term in her case.
To a large extent, Anderson's contentions are simply academic, since the trial court said it did not need to rely on such information. In any event, given Andersons's "Harvey waiver" at the change of plea, the fact that hearsay is admissible at sentencing and the confrontation clause does not apply, we are satisfied any possible consideration of the facts from the codefendant's trial did not deprive Anderson of due process. We will affirm the judgment.
People v. Harvey (1979) 25 Cal.3d 754.
STATEMENT OF FACTS
This appeal arises from the sentence imposed following the plea of guilty. The court considered the transcript of the preliminary hearing as part of the factual basis for the guilty plea. It also considered Anderson's statement contained in the change of plea form. For the purpose of providing background for the discussion which follows, we will simply include Anderson's statement in the change of plea form. Anderson stated:
"[I] intentionally instructed Frederick Weekly to take Kirk Sampson's car knowing Mr. Weekly was violent and dangerous. When I instructed Mr. Weekly to take Mr. Sampson's car I knew that sending Mr. Weekly to take Mr. Sampson's car was dangerous to human life, but nonetheless, I instructed Mr. Weekly to do it anyway. By sending Mr. Weekly to take Mr. Sampson's car, Mr. Sampson was killed."
DISCUSSION
At the sentencing hearing, defense counsel complained that the prosecutor's statement in aggravation included some references to facts which were presented in the trial of the codefendant. That objection was followed by an exchange between defense counsel and the trial court as to whether anything from the codefendant's trial could be considered at Anderson's sentencing. There was a discussion of the "Harvey" waiver which permitted the court to consider the entire factual background of the offense to which Anderson had entered a guilty plea.
Ultimately, the trial court denied probation and selected the upper term of 11 years as the appropriate sentence. Regarding the contention that the trial court could not consider any information learned while presiding over the codefendant's trial the court said:
"Mr. Gray has suggested that it would be inappropriate for the court to consider facts from the case of People v. Weekly in deciding on -- on the court's decision in this case. I think we disagree on whether or not I have the -- the power or the right to consider those facts. [¶] In -- in all cases where there is a plea that goes down and there's a Harvey waiver that is filed, the Harvey waiver includes that the court may consider the entire factual background of the case, and that is usually presented at a sentencing hearing or in the papers prior to sentencing, through declarations or in argument, mentioning what was going on in the police reports here or there, and that is something that is very common and there's nothing inappropriate about it. [¶] But I'm in a different position in this case than most -- the vast majority of judges are in sentencing decisions in that I presided over the preliminary hearing in the case. So I know a factual basis of this -- of this case. I have a factual grasp of the case even before I took the plea. [¶] And then I -- then I participated in presiding over the trial of Mr. Weekly, who was the codefendant in this case, and for which that trial, Miss Anderson, had she not pled -- had she not pled guilty to manslaughter, would have been right where she's seated now, up front and center for the trial evidence presentation. [¶] So I have a very strong flavor for this case, much, much stronger than any judge that has just taken a plea. I know what this case is about. [¶] And in order to get the flavor, my impressions of Miss Anderson and her participation and level of participation in the case, it doesn't require that I look specifically at the facts of People v. Weekly, but as I said, I believe that I have the power to do so."
Anderson's basic argument is that the trial judge considered evidence from the codefendant's trial, that evidence was unreliable and therefore the court denied her due process. As we will discuss, there is nothing in this record to suggest the trial judge relied on anything from the trial. The judge did not refer to any such material and Anderson has pointed to none. Further, we do not understand how any evidence that might have been considered from the trial would be "unreliable" and that its consideration would violate due process. Our review of the record demonstrates the trial judge properly considered all of the material submitted by Anderson, which included a considerable amount of hearsay statements. The court had adequate information from the probation report, the transcript of the preliminary hearing and the statements in aggravation and mitigation. Nothing in this record indicates the court considered any "unreliable" material in reaching its sentencing decision.
A. Legal Principles
When we review a sentencing decision, we first apply the abuse of discretion standard of review. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) A trial court abuses its discretion in selecting an upper term sentence if it "relies upon circumstances that are not relevant to the decision or otherwise constitute an improper basis for decision." (People v. Sandoval (2007) 41 Cal.4th 825, 847.) An upper term sentence may be based on any aggravating circumstance that the court deems significant. (Cal. Rules of Court, rule 4.408(a).) A single aggravating factor can justify an upper term sentence. (People v. Osband (1996) 13 Cal.4th 622, 728-729.)
The trial court may consider a broad range of material in making sentencing decisions. The confrontation clause does not apply at sentencing; however, due process does require that the material considered by the court must have some minimal indicia of reliability. (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066.) Thus, trustworthy hearsay is admissible, if relevant to the issues at sentencing.
B. Analysis
Anderson does not challenge the trial judge's weighing of the facts which lead to the selection of the upper term. The core of her challenges has two components. First, Anderson argues the trial court considered facts from the trial of the codefendant. Second, she argues the "facts" from the trial are inherently unreliable because her defense counsel was not there to cross-examine the witnesses. We find that neither prong of Anderson's contention has merit.
Anderson has not challenged the sufficiency of the record to support the factors in aggravation that would justify the upper term in this case, nor could she do so on this record. As we have observed, a single valid aggravating factor can support an upper term sentence. (People v. Osband, supra, 13 Cal.4th 622, 728-729; Cal. Rules of Court, rule 4.408(a).) Here, there are five factors in aggravation which are supported by testimony at the preliminary hearing or other materials unrelated to the codefendant's trial:
1. The crime involved great violence.
2. Anderson induced Weekly to participate in a crime.
3. Anderson attempted to conceal the crime.
4. Anderson was on probation at the time of the offense.
5. Anderson's prior performance on probation had been unsatisfactory.
In short, at least five factors in aggravation can be identified from materials in the record which have nothing to do with the codefendant's trial.
As we have discussed, the record does not indicate the trial court considered anything from the codefendant's trial. The judge said he did not need to consider that material. The judge presided over the preliminary hearing at which both defendants were present. The judge remarked he had substantial information about this case even before the plea was entered. Certainly, the judge and defense counsel disagreed about the scope of a Harvey waiver, but in the end the judge did not identify any fact from the trial that he used in his analysis. Appellate counsel has not identified any such fact in this appeal. Thus, we observed earlier that this discussion is somewhat academic. As the court observed in People v. Superior Court (Alvarez), supra, 14 Cal.4th at page 977: "The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary." Anderson has not met her burden to show the trial judge considered any inappropriate material in his sentencing decision.
Finally, we turn to the argument that anything that might have been considered from the trial was inherently unreliable and denied Anderson due process of law. One might ask why evidence taken in open court, under oath would be "unreliable"? Anderson argues she was denied the right to cross-examine the witnesses in that trial and her counsel was not present at the codefendant's trial to offer mitigating evidence about her involvement in the crime. We struggle with Anderson's argument.
Anderson acknowledges the confrontation clause is not applicable, the facts from the trial were relevant to this sentencing, and she recognizes hearsay is admissible at sentencing. Indeed, Anderson offered a considerable amount of hearsay in her statement in mitigation, including testing results, mental health expert reports and letters of support. Ultimately, Anderson simply declares the evidence from the trial to be unreliable for lack of her counsel's ability to participate in the codefendant's trial. Once having declared the entire body of evidence to be unreliable, she then argues she was denied due process by reason of any possible use of the evidence by the trial court. We are not persuaded.
In sum, Anderson has not shown that any evidence from the trial was considered by the court.
Assuming, arguendo, that the trial judge's statement that he had a strong flavor of the case included his experience presiding over the codefendant's trial somehow constitutes error, we must evaluate its prejudicial effect. Since Anderson claims the "consideration" of the other trial violated her constitutional right to due process, we must apply the constitutional harmless error analysis of Chapman v. California (1967) 386 U.S. 18, 24. Under Chapman the burden is on the People to demonstrate the alleged error did not contribute to the outcome of the case. That is, the burden is on the appellant to demonstrate error. If the appellant is successful in establishing error the burden then shifts to the People to demonstrate it was harmless beyond a reasonable doubt. After thorough review of the record we are satisfied any possible error was harmless beyond a reasonable doubt.
The alleged error is that the trial court might have considered something from the codefendant's trial. Although no facts from that trial were identified, the claim is essentially that the court's mere mention of the trial, along with other information, show it considered something that added to the "flavor of the case." On this record, any residual flavor reference that might have included the trial experience was plainly harmless.
First, Anderson does not, and indeed could not claim the court was disqualified to sentence her because it had presided over the codefendant's trial. Further, the court stated it did not need to consider any facts from the trial. The judge had presided over the joint preliminary examination such that he had a "factual grasp of the case even before I took the plea." No fact from the codefendant's trial was identified by the court in assessing the sentence to be imposed. It seems likely that any judge who presides over a codefendant's trial may have a "flavor" of the offense, however, such amorphous concept as "flavor" hardly amounts to consideration of the facts from the related trial. The fact a trial judge may have derived a flavor from a codefendant's trial is almost inevitable. It is not getting such impressions, which always happens when one experiences a trial, but whether something from such trial was used in a separate sentencing that might lead to prejudice. Thus, we must assess whether the court's reference to having presided over the codefendant's trial contributed to the court's decision to impose the upper term sentence, which was separately justified by other materials.
Here, the court made clear it did not need any facts from the trial to make its evaluation of Anderson's role. Presiding over the preliminary hearing gave the judge the factual basis for his decision and there is no indication in this record that he considered a single fact from the trial. While it is clear the judge and defense counsel disagreed over the application of a Harvey waiver, the absence of any reference to trial facts and the abundant justification in the record for the unchallenged upper term sentence demonstrates any alleged error was harmless beyond a reasonable doubt. The court's stated view on the scope of its authority, on this record, does not support an inference that it used any inappropriate material in reaching its decision.
DISPOSITION
The judgment is affirmed.
/s/_________
HUFFMAN, Acting P. J. I CONCUR: /s/_________
O'ROURKE, J. DATO, J., dissenting.
Courts have long recognized a criminal defendant's due process right to sentencing procedures that comport with principles of fundamental fairness. This includes the right to notice and a reasonable opportunity to respond to evidence that will be considered by a judge at sentencing. (See People v. Peterson (1973) 9 Cal.3d 717, 726, citing Williams v. New York (1949) 337 U.S. 241; In re Calhoun (1976) 17 Cal.3d 75, 84.) The majority dispute neither this settled constitutional principle, nor its applicability to the facts of this case where, in sentencing defendant, the trial judge asserted it was proper for him to consider evidence introduced during a codefendant's separate trial at which the defendant and her counsel were not present and had no opportunity to participate. Other courts have uniformly held that consideration of such evidence violates a defendant's due process rights. (State v. Delisle (Vt. 2015) 124 A.3d 483, 487; People v. Pourat (Colo.App. 2004) 100 P.3d 503, 506; see also United States v. Berzon (1st Cir. 1991) 941 F.2d 8, 18 [if a trial court is going to rely on evidence adduced at codefendant's hearing, defendant must be advised in advance and given adequate opportunity to prepare a response].)
There is likewise no dispute as to the foundational facts in this case. Defendant Angela E. Anderson and her codefendant, former boyfriend Frederick Weekly, were charged with the murder of another former boyfriend of Anderson's, Kirk Sampson. Weekly shot Sampson while attempting to retrieve a truck purchased by Anderson that she sometimes allowed Sampson to use. Anderson believed Sampson had absconded with the truck, and she sought Weekly's assistance in getting it back. Anderson was not present at the shooting, and there was no evidence she instructed Weekly to shoot Sampson or intended that Sampson be killed. The prosecutor argued that Sampson's killing was the "natural and probable consequence" of other crimes Anderson knowingly aided and abetted. The extent of her culpability depended on subtle and sometimes contradictory inferences that could be drawn regarding her knowledge, motive, and understanding of risk.
Following the preliminary hearing, Anderson elected to accept the prosecutor's offer and plead guilty to the lesser included offense of voluntary manslaughter. Weekly proceeded to trial, where he was found guilty of first degree murder. The same trial judge who heard the preliminary hearing and accepted Anderson's plea also presided over Weekly's trial. Approximately two weeks after the jury's verdict in the Weekly case, he sentenced Anderson, drawing negative inferences regarding her culpability and the extent of her involvement. Relying on a standard Harvey waiver that allowed the court to consider "the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases," the judge found no due process impediment to considering evidence he heard during the Weekly trial. He declined to follow the midterm recommendation of the probation department and instead sentenced the defendant to the upper term.
Weekly's conviction is the subject of a separate appeal. (People v. Weekly (D071294, app. pending).)
See People v. Harvey (1979) 25 Cal.3d 754, 758. --------
The majority and I part company in two respects. First, they conclude "there is nothing in this record to suggest the trial judge relied on anything from the trial." (Maj. opn., ante, p. 4.) They go on to posit that even if the judge did consider such evidence, the judgment may be affirmed because any error was clearly harmless beyond a reasonable doubt. (Maj. opn., ante, p. 8.) As to the first conclusion, I can only say that I read the record differently. As to the second, the majority largely reargue their conclusion that the trial judge didn't really consider the trial evidence. To the extent they are willing to accept that the evidence may have been considered, they misapply the applicable standard of prejudice, effectively transferring the burden to the defendant to show she would not have received the same sentence. On the record before us, and properly applying the correct test for prejudice, I believe reversal is required.
I
As part of the defense statement in mitigation, Anderson's counsel noted that the judge had just recently completed the Weekly trial. Counsel acknowledged that the court would base its sentencing decision on the statements in aggravation and mitigation, the preliminary hearing transcript, and the probation report. But he argued it would not be proper for the judge to consider any new evidence from the Weekly trial. Counsel maintained he had "no knowledge of what evidence was laid before the court" at the trial and "never had the opportunity . . . to rebut and offer contrary evidence." In his view, consideration of such evidence would "deprive [Anderson] of her due process rights as guaranteed by the Fifth Amendment to the U. S. Constitution."
The prosecutor's statement in aggravation, filed a day later, did not directly respond to Anderson's due process argument. However, it did note the judge's familiarity with the facts based on "having presided over the preliminary hearing, and the co-defendant's jury trial." As a result, the statement found no need to repeat facts the judge was already familiar with. In effect, it assumed the court would consider all the facts it was aware of, including the trial evidence.
The trial judge appears to have made a similar assumption. At the outset of the sentencing hearing, Anderson's counsel referred to the prosecutor's statement in aggravation as suggesting that the Weekly trial evidence could be considered. The court immediately characterized defense counsel's due process argument as "without authority" based on the fact that Anderson signed a Harvey waiver as part of the plea agreement. Counsel repeatedly attempted to explain why there was a due process problem with the court relying on evidence received during a codefendant's trial that Anderson and her counsel did not attend. The judge was unimpressed, returning to the defendant's Harvey waiver as providing broad authority for him to consider any relevant evidence concerning the circumstances of the crime. Ultimately, the court advised counsel he "probably should" move on to other arguments.
Both defense counsel and the prosecutor then argued the factors in aggravation and mitigation. When they finished, the court announced its sentencing decision. After expressing his view that probation was not appropriate, the trial judge turned to Anderson's argument that it would be improper for him to consider evidence from the Weekly trial. "I think we disagree on whether or not I have the . . . power or the right to consider those facts." He again referred to the Harvey waiver as a sufficient basis for him to consider "the entire factual background of the case." The judge acknowledged that in the typical case, the factual background would be presented "at a sentencing hearing or in the papers prior to sentencing." "But I'm in a different position in this case than most—the vast majority of judges are in sentencing decisions."
Why? The judge gave two reasons. First, because "I presided over the preliminary hearing in this case." So far, so good. Defense counsel agreed the court could consider the evidence received at the preliminary hearing. There is no due process problem because Anderson and her counsel were present, knew what was said, and had an opportunity to respond.
Second, the trial judge was in a "different position" because he "presid[ed] over the trial of Mr. Weekly, who was the co-defendant in this case, and for which that trial, Miss Anderson, had she not pled . . . guilty to manslaughter, would have been right where she's seated now, up front and center for the trial evidence presentation. [¶] So I have a very strong flavor for this case, much, much stronger than any judge that has just taken a plea. I know what this case is about." Based on that unique familiarity, the court sentenced Anderson to the upper term of 11 years in state prison.
Presented with this record, the majority conclude "there is nothing . . . to suggest the trial judge relied on anything from the trial." (Maj. opn., ante, p. 4.) To reach this conclusion, they point to the fact that the judge did not specifically identify any new evidence from the trial in his oral statement of reasons. (Maj. opn., ante, p. 7.) But the due process violation is considering the trial evidence, not citing it. Respectfully, all this shows is that he did not document his mistake, not that he did not make it.
The majority also rely on a curious statement by the trial judge in which he refers to the "very strong flavor" he has for the case, a flavor he admitted was a product in part of the Weekly trial evidence: "[I]n order to get the flavor, my impressions of Miss Anderson and her participation and level of participation in the case, it doesn't require that I look specifically at the facts of People v. Weekly, but as I said, I believe I have the power to do so." (Italics added.) The majority read this statement as indicating the judge did not consider evidence from the Weekly trial in reaching his decision.
But any statement must be read in context, and the majority's interpretation of what is at best ambiguous language flies in the face of everything else the judge said. Moreover, to say he was not "require[d]" to "specifically" consider the Weekly trial evidence is a far cry from saying he did not consider it.
In this case we must also take account of what the judge did not say. If, on further reflection, the judge decided that his ability to consider the Weekly trial evidence was an academic question because he would reach the same conclusion without it, why didn't he just say so? After all, that was defense counsel's initial request. Counsel was not seeking to disqualify the judge but instead was asking, in effect, "Just tell us you aren't going to consider the Weekly trial evidence."
The judge would not, or could not say that. Perhaps this reflects his admirable candor. Having sat through a two-week trial, maybe he knew that bell could not be unrung. In any event, what the judge did not say, as much as what he did say, speaks volumes.
II
My reading of the record convinces me that the trial judge committed a legal error by considering to some unknown extent the evidence he heard at the Weekly trial in making his sentencing decision regarding Anderson. Candidly, we cannot know for certain to what extent this information was considered. The trial judge is the only one who knows, and he didn't tell us. But the resulting inquiry is a familiar one in appellate practice—can we tell if the error affected the result or, in other words, was the error prejudicial?
Purporting to answer that question, the majority largely restate their argument that the trial court didn't really consider the evidence from the Weekly trial. (E.g., maj. opn., ante, pp. 9 ["such amorphous concept as 'flavor' hardly amounts to consideration of the facts from the related trial"] and 9-10 ["The court's stated view on the scope of its authority . . . does not support an inference that it used any inappropriate material in reaching its decision."].) The proper analysis, however, would necessarily assume the improper evidence was considered and proceed to decide if consideration of the evidence affected the result.
From the outset, the constitutional basis for Anderson's argument has been clear: It would violate her due process rights under the Fifth Amendment of the United States Constitution for the court to consider the evidence received at the Weekly trial. California cases recognize a defendant's federal due process right to fair sentencing procedures, which includes the right to notice and a reasonable opportunity to respond to adverse evidence. (See People v. Peterson, supra, 9 Cal.3d at p. 726; In re Calhoun, supra, 17 Cal.3d at p. 84; People v. Webster (1983) 143 Cal.App.3d 679, 686.) Thus, as the majority acknowledge, the prejudice question in this case must be answered by applying the familiar Chapman test, which places the burden squarely on the People to show that the trial court's error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Because the defendant gets the benefit of every reasonable doubt, it is the People's burden to dispel the uncertainties. This is always a difficult burden to meet, but particularly where a defendant is not provided with notice and a reasonable opportunity to respond to sentencing evidence. Not surprisingly, courts have suggested that prejudice is ordinarily presumed in such circumstances. (See People v. Leffel (1987) 196 Cal.App.3d 1310, 1318 (Leffel); People v. Bohannon (2000) 82 Cal.App.4th 798, 809.)
Here, as in Leffel, "the possibilities for prejudice are clear and the actual prejudice suffered is a matter of conjecture." (196 Cal.App.3d at p. 1318.) As the trial judge emphasized, the sentencing decision was all about "flavor," which depends on balancing inferences to be drawn from the totality of the circumstances and can be affected by a host of subtle factors. Defense counsel was never provided with a copy of the Weekly trial transcript and it is not part of our record in this case. We are thus unable to compare it with the preliminary hearing transcript to assess how much "new" material it contains. The absence of any specific "reference to trial facts" (maj. opn., ante, p. 9) merely leaves an additional uncertainty the People have not dispelled. It hardly establishes that the court's error was harmless beyond a reasonable doubt. Unless the People can affirmatively show that consideration of evidence without notice and a fair opportunity to respond did not contribute to the result, reversal is required.
I would reverse and remand for resentencing. Fundamental fairness requires no less.
/s/_________
DATO, J.