People v. Peyton CA2/6 ( 2024 )

Filed 10/24/24 P. v. Peyton CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B334525
(Super. Ct. No. 2016004171)
Plaintiff and Respondent, (Ventura County)
v.
LEE EDWARD PEYTON,
Defendant and Appellant.
Lee Edward Peyton appeals from the trial court’s order
striking six one-year prior prison term enhancements from his
sentence pursuant to Penal Code1 section 1172.75. Peyton
contends the order must be reversed because he did not waive his
right to be present at resentencing. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In 2017, a jury convicted Peyton of committing one count of
forcible rape (§ 261, subd. (a)(2)) and three counts of lewd or
lascivious act on a child (§ 288, subd. (c)(1)). The trial court
1 Statutory references are to the Penal Code.
found true allegations that Peyton suffered three prior strike
convictions (§§ 667, subds. (c)-(e), 1170.12, subds. (a)-(c)) and two
prior serious felony convictions (§ 667, subd. (a)(1)), and that he
served prior terms in prison (former § 667.5, subd. (b)). It
sentenced him to 66 years to life2 in state prison: 25 years to life
for the rape conviction, 25 years to life for one of the lewd acts
convictions, 10 years for the prior serious felonies, and six years
for the prison priors. Sentences on Peyton’s remaining
convictions and enhancements were stayed. We affirmed the
judgment on appeal. (Peyton, supra, 2018 WL 3912799 at p. *5.)
In August 2023, Peyton’s counsel and the prosecutor
appeared before the trial court, with counsel appearing pursuant
to section 977. (See § 977, subd. (b)(1) [permitting waiver of
defendant’s presence].) Counsel told the court that the parties
had agreed that the prior prison term enhancements should be
stricken but that Peyton’s sentence should otherwise remain
unchanged. The matter was continued so the judge who presided
over Peyton’s trial could rule on the matter. The matter was
continued two more times.
Counsel and the prosecutor appeared before the trial court
again in December. At the beginning of the resentencing hearing
counsel said Peyton was incarcerated and that he was “appearing
on his behalf.” Counsel did not again say that Peyton had waived
his appearance, however, or that he was authorized to appear
pursuant to section 977. Nor did the court again make any
finding permitting counsel to appear pursuant to that section. It
2 Our opinion in Peyton’s prior appeal, People v. Peyton
(Aug. 16, 2018, B283608) [nonpub. opn.] 2018 WL 3912799,
erroneously stated that the trial court sentenced Peyton to 76
years to life in state prison (see id. at p. *1).
2
agreed with both counsel and struck the prison priors from
Peyton’s sentence in his absence. The court then updated the
number of credits Peyton had accrued toward his now
60-year-to-life sentence and concluded the hearing.
DISCUSSION
Peyton contends the trial court’s resentencing order must
be vacated because he neither appeared at nor waived his
presence at the resentencing hearing. We disagree.
A defendant has the right to be present at all “ ‘ “critical
stages of the criminal prosecution,” ’ ” including resentencing.
(People v. Velasco (2023) 97 Cal.App.5th 663, 673 (Velasco).) The
defendant may waive the right to be present at resentencing by
entering a knowing, voluntary, and intelligent waiver. (People v.
Santos (2024) 100 Cal.App.5th 666, 677-678, review granted May
29, 2024, S284341.) Alternatively, counsel may enter such a
waiver on a defendant’s behalf so long as there is “some evidence
that the defendant understood the right [they were] waiving and
the consequences of doing so.” (People v. Davis (2005) 36 Cal.4th
510, 532.)
We independently determine whether counsel entered a
valid waiver. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.)
If we conclude they did not, reversal is required unless we
“conclude beyond a reasonable doubt that it did not affect the
outcome of the proceeding.” (Velasco, supra, 97 Cal.App.5th at p.
674.)
Here, counsel did not enter a valid waiver of Peyton’s
presence at the December 2023 resentencing hearing. Though he
said he was “appearing on [Peyton’s] behalf,” unlike at the prior
hearing in August, nothing in the record indicates that he was
authorized to do so pursuant to section 977 or that Peyton had
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waived his appearance. And we cannot presume that Peyton
knowingly, voluntarily, and intelligently waived his presence at
his resentencing hearing simply because counsel previously
appeared pursuant to section 977; as in Velasco, although Peyton
previously waived his presence, “there is no corresponding
writing in the record” stating that he did so for this hearing, his
attorney did not state as much at the hearing, and the court did
not make any finding permitting counsel to appear pursuant to
section 977. (Velasco, supra, 97 Cal.App.5th at p. 674.) We thus
conclude, as does the Attorney General, that it was error to
resentence Peyton in his absence. (See, e.g., Velasco, supra, 97
Cal.App.5th at p. 674; People v. Cutting (2019) 42 Cal.App.5th
344, 348 (Cutting).)
But in our view the error did not affect the outcome of the
proceeding. When the matter first came on for resentencing,
counsel told the trial court that the parties had agreed that the
prison priors should be stricken but that Peyton’s sentence
should otherwise remain unchanged. In other words, the parties
stipulated that Peyton should be resentenced to 60 years to life in
state prison. That distinguishes this case from Velasco, supra, 97
Cal.App.5th at page 669 and Cutting, supra, 42 Cal.App.5th at
page 347, where there was no indication that the parties had
agreed to the length of the sentences to be imposed on
resentencing. Because the court below ultimately imposed the
agreed-upon sentence, any error was harmless beyond a
reasonable doubt.
Peyton speculates that had he been present at the
resentencing hearing he could have “argued to have his strikes
stricken, or presented evidence of some change in circumstances
since the original sentence was imposed, or simply made a plea
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for leniency.” But Peyton made no such requests in the trial
court. He cannot do so for the first time here. (People v. Scott
(1994) 9 Cal.4th 331, 356.)
DISPOSITION
The order striking the prison priors from Peyton’s sentence
and resentencing him to 60 years to life in state prison, entered
December 6, 2023, is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Michele M. Castillo, Judge
Superior Court County of Ventura
______________________________
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
.