P. v. Hamilton

Filed 4/21/05 P. v. Hamilton CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY HAMILTON,
Defendant and Appellant.
B173224
(Los Angeles County
Super. Ct. No. PA044497)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Charles L. Peven, Judge. Affirmed in part, reversed in part, and remanded.
Julie Sullwold Hernandez, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,
Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff
and Respondent.

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Anthony Hamilton appeals from judgment entered following a court trial in
which he was convicted of voluntary manslaughter. (Pen. Code, § 192, subd. (a).)
Sentenced to the upper term of 11 years, he contends his sentence violated the
Sixth Amendment to the United States Constitution under Blakely v. Washington
(2004) ___U.S. ___ [124 S.Ct. 2531] (Blakely). For reasons explained in the
opinion, we affirm the conviction and reverse only the sentence and remand for
resentencing.
FACTUAL AND PROCEDURAL SUMMARY
Following a jury waiver, appellant was convicted by the court of voluntary
manslaughter and found sane. With reference to appellant’s sanity, the court
observed it was “a very, very close case,” but while there was no question that
appellant was mentally ill, he had not overcome the presumption of sanity at the
time of the commission of the offense.
Before appellant killed his father, appellant had had a history of mental
illness, drug abuse, and bizarre behavior. On May 22, 2003, after an altercation
between appellant and his father, police officers arrived at the home of the victim
and found the victim dead with a suspender wrapped in a single loop around his
neck. There was a hat on the victim’s chest; and under the hat and underneath the
T-shirt he was wearing, there were two wedge-shaped slices of apple. A large
wedge of apple had been placed in the victim’s mouth after he died. Part of the
victim’s ear appeared to have been bitten off at or near the time of death and was
found on the floor near the body. The cause of death was asphyxia due to ligature
strangulation, and there were injuries on the victim’s body indicating he was trying
to defend himself.
At sentencing, the court stated it found “one mitigating factor in that the
defendant was suffering from a mental condition that significantly reduced his

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culpability for the crime. [¶] However, the court does find that there are
aggravating circumstances here[] in that the crime certainly involved great
violence, and great bodily harm, and certainly the defendant, the court does note,
was on probation when he committed this offense. And the probation was for a
spousal abuse offender, which was another crime of a violent nature.” The court
found that the aggravating circumstances outweighed the one mitigating
circumstance and selected the high term of 11 years.
DISCUSSION
Appellant contends that Blakely applies to this case and that his sentence
was unauthorized. He argues that no jury found the aggravating factors true or that
the factors in aggravation outweighed that in mitigation. Additionally, he argues
that the factual determinations made by the trial judge were made by a lesser
standard of proof than that required by the federal constitution as interpreted in
Blakely.
His contention is partially well taken. Appellant waived his right to a jury
trial and agreed to allow the court to decide his guilt or innocence, his sanity, and
his sentence. Having waived a jury trial, appellant is deemed to have consented to
a court trial on all of the issues in the case. (See People v. Berutko (1969) 71
Cal.2d 84, 94.) The trial court acted as the fact finder, occupying the same position
as a jury, and was similarly able to determine whether the aggravating
circumstances existed. Unlike the situation in Blakely, where the trial court
imposed a sentence after a guilty plea, here the trial court heard all of the evidence
that allowed it to determine the aggravating factors and the mitigating factor.
However, pursuant to California Rules of Court, rule 4.420, circumstances in
aggravation and mitigation had to be established only by a preponderance of the
evidence and there is nothing in this record to indicate the trial court deviated from

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this standard. Under the circumstances, the matter must be remanded to the trial
court for further proceedings to determine the aggravating factors beyond a
reasonable doubt. (Cf. People v. Earley (2004) 122 Cal. App. 4th 542, 550.)
DISPOSITION
The sentence is reversed and the cause is remanded to the trial court for
further proceedings consistent with this opinion and in all other respects the
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURRY, J.
We concur:
EPSTEIN, P.J.
HASTINGS, J.

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