DA Objects To Roman Polanski's Request for Sentencing in Absentia

In affirming the denial of Roman Polanski's motion to dismiss the criminal charges against him last month, the California Appeals Court noted that Section 1173 of the California Penal Code allows for felony sentencing in absentia. The pertinent part of the statute reads (via Lexis.com):

If the conviction is for a felony, the defendant shall be personally present when judgment is pronounced against him or her, unless the defendant, in open court and on the record, or in a notarized writing, requests that judgment be pronounced against him or her in his or her absence, and that he or she be represented by an attorney when judgment is pronounced, and the court approves his or her absence during the pronouncement of judgment...

The Court said "Based on the oral arguments of counsel, this court would not expect any objection to be made if Polanski should request to be sentenced in absentia."

Polanski then moved to be sentenced in absentia. Today, the L.A. prosecutor objected. A hearing is set for next week. I haven't found a copy of the prosecutor's response, but I also haven't seen any California cases that uphold the denial of a defendant's request because of an objection from the prosecutor. While the decision is up to the judge, I think the prosecutor is on shaky ground. Here's why: [More...]

According to news accounts, their reasons are that Polanski has been a fugitive and celebrities shouldn't be treated any differently than anyone else. It's the defendant's constitutional right to be present that is at issue. The statute allows him to waive that right. The law allows the judge to make the call on the defendant's request. The state doesn't have a constitutional right to insist on his presence. There's nothing in the statute that says "except for fugitives." The request can be made by all defendants, rich and poor.

The prosecutors said allowing Polanski to be sentenced in absentia would set a horrible precedent for future defendants. If that's the case, they should lobby the California legislature to change the law to exclude fugitives from being eligible to make the request. Instead, they are attempting to have the law selectively enforced based on a status for which the statute provides no exception, and by their completely unsupported belief that only celebrities and the rich would seek to avail themselves of the statutory allowance.

The statute does not set forth factors for the judge to decide a defendant's request. The prosecutor wants to just make some up. My prediction: The judge will allow Polanski to be sentenced in absentia. If not, I hope he's allowed to appeal the decision immediately, and request a stay of execution of the extradition warrant while it's under consideration. (Although I don't know if he's allowed to do either.)

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    The trial court has discretion to deny (5.00 / 1) (#4)
    by oculus on Sat Jan 16, 2010 at 01:43:52 AM EST
    the defendant's request he be sentenced in absentia.  Usually "in absentia" is because defendant is at work, sick relatives, etc.  Not because he fled the jurisdiction and, in fact, the country before the initial sentencing.  Of course the trial court, in exercising its discretion, should consider the underlying circumstances.

    sentencing in absentia (5.00 / 1) (#8)
    by diogenes on Sat Jan 16, 2010 at 09:03:12 AM EST
    Anyone can waive the right to be present at his court hearing.  Of course, that person may also be sentenced to the maximum rather than to some sort of plea bargain sentence and may also have charges of flight from justice tacked on.  There is no constitutional right to force the present prosecutor to accept the prior plea bargain given what has happened since; if Polanski wants a two year prison sentence and then wants to be extradited, then so be it.

    Ordinarily, I would agree (none / 0) (#10)
    by Peter G on Sat Jan 16, 2010 at 12:39:41 PM EST
    that a criminal defendant can waive his/her right to be present at a court hearing.  But sentencing may be an exception.  True, it is an ancient and fundamental right to be present before the judge -- to make the judge look you in the eye and see you as a human being -- when s/he passes judgment of sentence.  This a right that the defendant enjoys, and thus which the defendant presumably can choose to waive. But a criminal sentencing is also a public ceremony at which the State denounces the offender for his/her breach of society's norms and articulates the reasons for punishment.  The judge may rightly feel that this ceremony serves its public purposes of deterrence and of reinforcement of common values and rules much less effectively if the defendant is not present to face the judge and hear the judgment pronounced.  For these reasons, the judge might reasonably and properly reject the request for sentencing in absentia, particularly in this case.

    "yes your honors, (5.00 / 1) (#9)
    by cpinva on Sat Jan 16, 2010 at 09:12:53 AM EST
    i drugged and raped a 14 year-old girl, but geez, i shouldn't be punished for it."

    i just don't see that flying at an extradition hearing. i could be wrong.

    Your comment, CPinVA, (none / 0) (#11)
    by Peter G on Sat Jan 16, 2010 at 12:45:41 PM EST
    seems to have nothing at all to do with the issue presently under discussion -- whether Polanski should be required to be present in the courtroom in California when the judge sentences him.  If the judge allows in absentia sentencing and imposes no more time, then the extradition would be moot.  But even if Polanski is sentenced in absentia, he can and will be extradited to serve the sentence if it calls for more time in custody than he has already spent.

    Peter would know the answer (none / 0) (#13)
    by Jeralyn on Sat Jan 16, 2010 at 04:56:16 PM EST
    I don't know if the refusal to grant a motion to be sentenced in absentia is a final order that can be appealed before the sentencing. I would think not, but that's just a guess. For exammple, defendants can't appeal the denial of a motion to suppress before trial, but the prosecution can. Defendants have to go to trial, lose, and then when appealing the conviction, raise the suppression issue.

    Transcript of change of plea includes (none / 0) (#14)
    by oculus on Sun Jan 17, 2010 at 11:51:58 PM EST
    Polanski stating on the record he was made no promises re sentencing. If the trial court denies defendant's motion to be sentenced in absentia, defendant may file a writ, as he recently did re motion to dismiss entire case.

    correct me if i'm wrong, (none / 0) (#1)
    by cpinva on Sat Jan 16, 2010 at 12:12:43 AM EST
    but sentencing mr. polanski in absentia changes nothing regarding his present situation. this is merely a ploy, by the prosecution, to try and get polanski back in the country, to be formally sentenced.

    not even really a good ploy at that.

    The maximum sentence on his plea (none / 0) (#3)
    by oculus on Sat Jan 16, 2010 at 01:42:12 AM EST
    is two years, with credit for time served.  

    "Based on the oral arguments of counsel" (none / 0) (#5)
    by rea on Sat Jan 16, 2010 at 06:11:31 AM EST
    "Based on the oral arguments of counsel, this court would not expect any objection to be made if Polanski should request to be sentenced in absentia."

     . .  sounds very much like the Supreme Court asked the prosecutor at oral argument, and heard no objection.

    A question. (none / 0) (#6)
    by lentinel on Sat Jan 16, 2010 at 06:40:18 AM EST
    Isn't unlawful flight a crime in itself?

    I'm not a lawyer but it seems to me that the (none / 0) (#7)
    by Angel on Sat Jan 16, 2010 at 08:36:55 AM EST
    statute might mean something different if the defendent's absence is due to the fact that he's a fugitive.  

    And what does this portion of the statute mean?  "... and the court approves his or her absence during the pronouncement of judgment...?"  Does this mean that the court can rule either way and it's legal?  If so, then what's the argument here?  Help me out, Oculus, please.