Lujan v. Superior Court
Filed 7/3/08 Lujan v. Superior Court CA4/2
Received for posting 7/14/08
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL -- STATE OF CALIFORNIA
FOURTH DISTRICT
DIVISION TWO
JAMES EDWARD LUJAN, E045201
Petitioner,
(Super.Ct.Nos. RIC476084 &
v. RIF104505)
THE SUPERIOR COURT OF The County of Riverside
RIVERSIDE COUNTY,
Respondent; O P I N I O N
THE PEOPLE,
Real Party in Interest.
______________________________________
THE COURT
In this matter, we have reviewed the petition, and requested and received opposition from real party in interest. We conclude that petitioner is entitled to the basic relief sought and GRANT the petition for writ of mandate.
Additionally, this court has considered the request for judicial notice filed May 1, 2008. The request is GRANTED.
It is indisputable as a general proposition that sentencing is a critical stage of a criminal proceeding. A defendant has a constitutional right to be present at such proceedings. (See People v. Waidla (2000) 22 Cal.4th 690, 741-742.) Although counsel can waive many rights on behalf of his client, a fundamental right such as that to be present at sentencing cannot be so waived.
In this case, it is undisputed that petitioner did not personally waive his presence. Real party in interest argues that any error is immaterial because, given petitioners history and prior record, he could not have hoped for a better result if he had been present. We acknowledge that petitioners prospects do not appear bright, but we cannot say beyond a reasonable doubt that the sentencing result was inevitable. (See Chapman v. California (1967) 386 U.S. 18.) The record reflects that trial counsel did not argue (although there were apparently off-the-record discussions in chambers) and merely submitted the matter. He had not communicated with petitioner, who was unaware of the hearing. We cannot conclude that petitioners presence and input into the hearing would necessarily have been fruitless.
Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its sentencing judgment, and to schedule a new sentencing hearing at which petitioner shall be present unless he personally waives his right to attend.
Petitioner is DIRECTED to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
MILLER
Acting P. J.
We concur:
McKINSTER
J.
GAUT
J.
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