THE PEOPLE, Plaintiff and Respondent, v. MICHAEL S. GUTIERREZ, Defendant and Appellant.
No. A049255
First Dist., Div. Two.
Mar. 1, 1991.
1634
Alison Hardy, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
BENSON, J.----Michael Gutierrez appeals under
Statement of the Case
On January 9, 1990, following a plea of guilty, appellant was sentenced to four years in state prison for violation of
On December 12, 1989, an information was filed in the Sonoma County Superior Court charging appellant with two counts of burglary in violation of
On January 19, 1990, appellant filed a motion to suppress evidence gathered in two searches of his car. This motion was denied.
Appellant waived his right to a jury trial on the truth of the prior prison term, and his trial was bifurcated. After a six-day jury trial, appellant was convicted of one count of residential burglary and one count of receiving
Sentencing
On March 26, 1990 appellant was sentenced on the burglary and receiving stolen goods charges, and resentenced pursuant to
The prosecutor requested that the court follow the suggestion of the probation department and sentence appellant to eight years and four months in state prison. The defense requested an alternative sentence of a middle term for the first count, the residential burglary; a year for the prior prison term; eight months concurrent or consecutive for the receiving stolen property; and eight months consecutive for the prior theft.
The court denied probation under
The court then stated “[a]nd then in file number 16135, the 666, the court orders one third the consecutive time period; so that would be seven years, eight months total. Further the court finds that 666 is the--that the 666 is the subordinate term, that the principal term is to be the 459.” No further statements were made with regard to the sentence imposed.
Discussion
I. Whether the Judge‘s Failure to State Reasons For Imposing a Consecutive Sentence Was Harmless Error
As we previously noted, in January 1990, appellant was sentenced to four years in prison in case No. 16135-C for theft. In imposing a different sentence in March 1990, the judge was required to specify how the second
Here, the judge determined that the principal term would be the residential burglary, and the subordinate term would be the prior theft. However, the court did not state reasons for deciding to run the theft sentence consecutively instead of concurrently.
“A decision to impose consecutive sentences is a sentencing choice for which a statement of reasons is required. [Citations omitted.]” (People v. McLeod (1989) 210 Cal.App.3d 585, 590 [258 Cal.Rptr. 496].) This holds true even where there have been two separate trials, and the defendant has already been sentenced in one of the cases. (People v. Stone (1981) 117 Cal.App.3d 15, 21-22 [172 Cal.Rptr. 445].)
However, “a failure to state reasons is not prejudicial error per se: If the error is harmless the matter need not be remanded for resentencing.” (People v. McLeod, supra, 210 Cal. App.3d at p. 590.)
“In order to determine whether error by the trial court [in making a sentencing choice] requires remanding for resentencing ‘the reviewing court must determine if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error.““” (People v. Avalos (1984) 37 Cal.3d 216, 233 [207 Cal.Rptr. 549, 689 P.2d 121].)
The question in the present case is whether it is reasonably probable that the trial court would run the theft sentence concurrently if the matter were remanded.
California Rules of Court, rule 425 provides the criteria affecting a decision for imposing consecutive rather than concurrent sentences. Under rule 425(a) the court considers facts relating to the crimes, including in part: (1) whether or not the crimes and their objectives were predominately independent of each other; and, (2) whether the crimes were committed at different times or separate places, rather than being committed so closely in time as to indicate a single period of aberrant behavior.
Under California Rules of Court, rule 425(b), the court may also consider any circumstances in aggravation or mitigation in making a consecutive/concurrent decision. In the present case however, there was no mitigating factor. The probation reports from both cases, No. 16778-C and No. 16135-C, list numerous factors in aggravation, and “none noted” under factors in mitigation.
In a situation such as this, where the defendant was sentenced in one case months earlier, where that crime occurred at a different time and place, and where there was no mitigating factor, the court had obvious reasons for imposing the sentence consecutively, based on the factors listed in California Rules of Court, rule 425(a).
In People v. Callahan (1983) 149 Cal.App.3d 1183, 1187 [198 Cal.Rptr. 12], the court held that the same fact may not be used to impose an upper term and a consecutive term, even when there is more than one sentencing proceeding. Where the court does not state reasons for imposing a consecutive sentence, a reviewing court must be sure that the sentencing judge did not use a fact to impose a consecutive sentence that was used earlier to impose an upper term. But, as the court points out in Callahan, this problem does not occur where the reasons for imposing a consecutive term could not “conceivably” have been used to impose an upper term. (Ibid.)
Here, the facts possibly used for imposing a consecutive sentence, could not have been used to also impose an upper term. The obvious reasons for imposing a consecutive sentence here were that the crimes were independent of each other and occurred at different times and places. In imposing an upper term for the
Appellant cites People v. Edwards (1981) 117 Cal.App.3d 436 [172 Cal.Rptr. 652] for support. In Edwards the court remanded for resentencing where the trial court did not state reasons for imposing a consecutive sentence. The defendant had been sentenced to two years for a Madera County
The present case is distinguishable. Here, the probation report, read and signed by the sentencing judge, referred to the prior theft sentence. Also, the judge here had a copy of the probation report from the prior case. This earlier probation report related all the details of the theft offense, described appellant‘s extensive criminal history, and listed numerous circumstances in aggravation and none in mitigation. From this, the sentencing judge was obviously cognizant of sufficient circumstances from the prior sentence upon which he could rely to impose a consecutive sentence. The factors that concerned the court in Edwards do not cause concern in the case at hand.
Given that appellant had already been sentenced to an upper term for the earlier crime, that the two cases were based on incidents occurring months apart, that appellant‘s sentence for the theft has been drastically reduced, and that the judge had obvious reasons for imposing a consecutive sentence, we conclude it is not reasonably probable that resentencing would result in a more favorable disposition for appellant. Consequently, the court‘s error in failing to state reasons for imposing the sentence consecutively, was harmless.
II. Whether the Abstract of Judgment Accurately States the Credit for Time Served as Ordered by the Court
At the sentencing hearing the court stated that appellant‘s total credit would be 93 days. Appellant pointed out that he should also receive credit for time already served in case No. 16135-C. The court ordered a total of 208 days credit for time served in that case. The abstract of judgment correctly reflects the 208 days of credit in case No. 16135-C, and also shows 93 days credit for time served in case No. 16778-C. The abstract of judgment correctly reflects the credits ordered at the time of the hearing. Appellant‘s request for modification is denied.
Disposition
The judgment is affirmed.
Peterson, J., concurred.
Second, although I feel compelled by existing case law to apply some harmless error rule in this context, I seriously question the wisdom of doing so. For the reasons stated in part III below, I believe the better rule would call for reversal in all cases where this error occurs.
I.
A basic theme running through the determinate sentencing law,
One of several statutory mechanisms for controlling judicial discretion is the requirement in question here--that the trial court state reasons for its “sentence choice.” (
II.
The majority opinion declares that the failure to state reasons constitutes reversible error only if the reviewing court finds it “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error.” (Maj. opn., ante, at p. 1638.) For this proposition the majority cites People v. Avalos (1984) 37 Cal.3d 216, 233 [207 Cal.Rptr. 549, 689 P.2d 121]. The relevant discussion in Avalos is anything but clear. In the sentence quoted by the majority, the court ostensibly adopted the familiar test adopted in People v. Watson (1956) 46 Cal.2d 818, 837 [299 P.2d 243], i.e., reversal is warranted only where it is “reasonably probable” that a more favorable result would have been reached in the absence of the error. In the next paragraph, however, the court said that reversal is required if the reviewing court “cannot determine whether the improper factor was determinative for the sentencing court.” (Ibid.) If reversal follows where the court “cannot determine” the likelihood of a more favorable result, i.e., where a more favorable result does not appear “probable,” then something other than a true Watson standard is at work.
Nor is Avalos on point. Neither it nor any other Supreme Court decision addresses the standard of reversal for an erroneous failure to state reasons under the DSL. In Avalos the error was a “dual use of facts,” i.e., citing the same sentencing factors to impose both an aggravated term and a consecutive sentence. (37 Cal.3d at p. 233.) The Supreme Court was able to detect this error only because the trial court had fully stated the reasons for its choice. This also permitted the court to conclude that “the improper dual use of facts was not determinative.” (Ibid.)
Although Watson states the general rule, it is not universally applicable. Some errors are serious enough to require reversal regardless of the likelihood of a more favorable result. (See People v. Watson, supra, 46 Cal.2d at p. 835; 6 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Reversible Error, §§ 3303-3311, pp. 4084-4095.) And there appears to be at least one intermediate standard. As suggested in Avalos, supra, reversal is sometimes mandated when the reviewing court cannot determine the effect of the error. And elsewhere the Supreme Court has suggested that reversal may be warranted based on a “reasonable possibility” that the error affected the outcome. (See People v. Heishman (1988) 45 Cal.3d 147, 101 [246 Cal.Rptr. 673, 753 P.2d 629], cert.den. 488 U.S. 948 [102 L.Ed.2d 369, 109 S.Ct. 380] [failure to state reasons for denying automatic death penalty modification motion].)
The Fifth District recently adopted the “no reasonable possibility” standard in connection with the error involved here, i.e., failure to state reasons under the DSL. (People v. May (1990) 221 Cal.App.3d 836, 839 [270 Cal.Rptr. 690].) I believe this holding correctly reflects the de facto standard applied in the vast majority of published cases. It is true that a number of courts have cited Watson in this setting, but a great number of these cases have reversed and remanded for resentencing. As previously noted, I believe such a result is virtually precluded by a Watson standard. Nor have any of these cases actually declared that a more favorable result was “probable.” Instead, they require resentencing when the reviewing court finds “enough likelihood . . . that correction of the trial court‘s . . . errors would result in [a] more lenient sentence.” (People v. Jackson (1987) 196 Cal.App.3d 380, 392 [242 Cal.Rptr. 1].) Harmless error will not be found “in the face of mitigating factors which present a basis for a less severe sentence choice.” (3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989), Punishment for Crime,
The vast majority of cases affirming despite the error are consistent with a rule under which the error would be reversible if there were a reasonable possibility of a more lenient sentence. One court found not only that a more favorable result was improbable but that there was “no reasonable possibility” of a less severe sentence. (People v. Preyer (1985) 164 Cal.App.3d 568, 577 [210 Cal.Rptr. 807].) Another found it a “virtual certainty” that the same sentence would be entered on remand. (People v. Bravot (1986) 183 Cal.App.3d 93, 98 [227 Cal.Rptr. 810].) In the widely cited case of People v. Blessing (1979) 94 Cal.App.3d 835, 839 [155 Cal.Rptr. 780], the court found that the failure to state reasons had no effect on the sentence because “defendant‘s crimes met every criteria [sic] listed in the rule and there is a total absence of any mitigating circumstances.” Other cases finding harmless error have noted the presence of many aggravating factors and few or no mitigating ones. (See People v. McLeod (1989) 210 Cal.App.3d 585, 590-591 [258 Cal.Rptr. 496], review den. [many prior convictions and factors in aggravation, none in mitigation]; People v. Scott (1988) 200 Cal.App.3d 1090, 1095-1096 [246 Cal.Rptr. 406] [numerous priors, etc.; one possible mitigating factor apparently disbelieved by trial court]; People v. Porter (1987) 194 Cal.App.3d 34, 39 [239 Cal.Rptr. 269] [nine priors, eight aggravating factors, none mitigating]; People v. Preyer, supra, 164 Cal.App.3d 568, 577 [five aggravating, none mitigating]; People v. Swanson (1981) 123 Cal.App.3d 1024, 1034 [176 Cal.Rptr. 915] [six aggravating, none mitigating]; People v. Hartsfield (1981) 117 Cal.App.3d 504, 509-510 [172 Cal.Rptr. 794] [two aggravating, none mitigating]; see also People v. Mobley
It therefore appears to me that while an impressive preponderance of case law supports application of some harmless error rule, the standard actually applied is not the “probable more favorable result” test of Watson. Instead, reversal is mandated if there is a “reasonable possibility” that a statement of reasons would have altered the trial judge‘s conclusion or revealed reversible error. . . .” (People v. May, supra, 221 Cal.App.3d 836, 839.) That is, the error is reversible if the record indicates that the sentencing judge could reasonably have imposed a less severe sentence.
Here, I concur in the result because I detect no reasonable possibility that the sentencing judge would have ordered defendant‘s sentence on the theft conviction to run concurrently with his sentence on the burglary conviction. It is apparent that the primary factor supporting consecutive sentences was that the two offenses were separate and independent. (See Cal. Rules of Court, rules 425(a)(1), 435(a)(3).) That is, the crimes were separated in time by more than 10 months and there is no apparent connection between them other than the identity of the perpetrator. The court stated its reasons for imposing an aggravated sentence on the principal term; even if we assume for purposes of analysis that the court relied on some of these same reasons to impose consecutive sentences (see rule 425(b)), it did not make dual use of the primary factor favoring consecutive sentences, i.e., that the offenses were separate and independent. The record is replete with aggravating circumstances and defendant identifies no mitigating circumstances which might reasonably favor a more lenient result. Accordingly, I believe that under the rule stated in People v. May, supra, 221 Cal.App.3d 836, 839, the error is not reversible.
Although I feel obliged by the weight of precedent to adhere to the analysis just outlined, I doubt the wisdom of applying any rule of harmless error to cases of this type. The considerations which usually justify the application of such a rule do not support it here. They would be better served by making error of this type reversible per se.
The harmless error rule should extend no further than its rationale, i.e., that it is a waste of time and resources to reverse a decision where it does not appear “reasonably probable” that reversal will produce a more favorable outcome. But this assumes that fewer resources will be consumed in the appellate process than would be consumed as a result of remand. Typically this is true. Here, it is not. Instead, the time and resources consumed in the appellate search for harmless error exceed those which would typically be consumed in an automatic remand and resentencing. Reversal per se would also serve important societal and individual interests. Therefore, these cases warrant an exception to the general rule.
This case illustrates the point. Even though we have affirmed the judgment, the issue presented would have been resolved more efficiently by remand and resentencing without consideration of the effect of the error. To present the issue to us, the parties had to review and analyze the record and precedents and prepare written statements of their respective analyses. To properly assess those arguments, we had to conduct our own review of the record and undertake a speculative analysis by which we attempt to determine what the trial court “must have” or “might have” had in its mind, and the likelihood that a different result “could have” been reached. This exercise almost certainly consumed more resources than would have resulted from per se reversal upon identification of the error. Reversal would not have required a retrial, but at most the preparation of a new probation report, transportation of the defendant to court, a review by judge and counsel of their files, and a hearing, of probably less than 10 minutes, at which counsel would offer their recommendations and the court would impose sentence. The error was not likely to be repeated; further appellate review, at least on this ground, would have been obviated. A per se rule requiring remand would also provide a strong incentive for trial judges to remember to state reasons at the original sentencing.
At the appellate stage there is usually little question whether the trial court erred; the issue on appeal is limited to the likelihood the error affected the outcome. The parties and the appellate court spend far more time puzzling over this issue than the parties and the trial would have spent correcting it. This simple fact renders inapplicable the usual calculus
As noted, the Supreme Court has not addressed the precise question with which we are concerned. Little guidance is found in capital cases involving the failure to state reasons for denying automatic motions to modify the penalty. In three such cases, the court remanded for reconsideration without considering whether the error was harmless. (People v. Sheldon (1989) 48 Cal.3d 935, 962-963 [258 Cal. Rptr. 242, 771 P.2d 1330]; People v. Brown (1988) 45 Cal.3d 1247, 1263-1264 [248 Cal.Rptr. 817, 756 P.2d 204]; People v. Rodriguez (1986) 42 Cal.3d 730, 792-795 [230 Cal.Rptr. 667, 726 P.2d 113].) In a fourth case the court affirmed despite the error, finding “no reasonable possibility” that the trial court‘s decision had been affected. (People v. Heishman, supra, 45 Cal.3d 147, 200-201.) However, the meaning and viability of that holding are open to question. In Sheldon the court expressly refused to consider a harmless error argument, distinguishing Heishman on the ground that the trial judge there had died; otherwise, the court said, that case too would have been remanded. (People v. Sheldon, supra, 48 Cal.3d at p. 962.) The court then stated that if the original trial judge was unavailable the motion could be heard by another judge. (Id., at p. 963; see People v. Brown, supra, 45 Cal.3d at p. 1264, fn. 7.) If this was true in Sheldon it would seem to have been equally true in Heishman. It is therefore unclear how, or whether, these cases can be harmonized.
In any event, these cases offer a poor analogy to noncapital cases because they involve a wholly different balance of interests and efficiencies. The court has suggested in these cases that reversal is required partly because the severity of the penalty warranted an “abundance of caution.” (People v. Sheldon, supra, 48 Cal.3d at p. 962, quoting People v. Heishman, supra, 45 Cal.3d at p. 200.) “Caution” is of course warranted in noncapital sentencing as well, but it is not the primary basis of my belief that per se reversal is warranted. Rather, automatic reversal offers benefits in noncapital cases which are not available in death penalty cases. In the latter, before the court reaches any issue of harmless error it has typically reviewed the massive record of a lengthy trial with a separate penalty phase. Having considered in detail the evidence supporting the penalty, it can effect little or no savings of appellate resources by remanding. In contrast, the error in noncapital cases is easily detected and is frequently the only penalty related point urged on appeal. If reviewing courts were not required to consider the asserted harmlessness of the error, they would not have to review the penalty record at all
In these respects the instant case is more comparable to civil nonjury cases where the trial court erroneously fails to explain its decision. (See
Beyond the immediate burden resulting from harmless error review in such cases is the possibility that an appellate willingness to save judgments from the effects of such error actually increases its frequency. Similar concerns prompted Justice Spencer‘s concurrence in Miramar Hotel Corp., supra. Noting that noncompliance with the applicable statute seemed to be on the increase, she wrote, “The far-reaching and burdensome effects of that practice mandate that it end immediately. Since I perceive no means of effecting that result other than per se reversal, I join with the majority.” (163 Cal.App.3d at pp. 1130-1131.)
The interests served by the requirement of a statement of reasons under the DSL seem even more compelling than those served by the requirement in civil cases. The private interest at stake is personal liberty, and the requirement directly serves a public interest--proportional and determinate sentences--whereas a statement of decision in civil cases concerns the
In short, I see no virtue in a rule which requires us to parse the record when the sentence can be corrected by the trial court far more readily and easily than it can be salvaged by us. For the courts of appeal to accept such a burden out of a misplaced sense of obligation works a disservice to every concrete policy involved. If I were writing on a clean slate, I would hold error of this kind reversible per se.
Appellant‘s petition for review by the Supreme Court was denied May 22, 1991. Mosk, J., Broussard, J., and Kennard, J., were of the opinion that the petition should be granted.