People v. Sanchez

23 Cal. App. 4th 1680, 29 Cal. Rptr. 2d 367, 94 Cal. Daily Op. Serv. 2445, 94 Daily Journal DAR 4637, 1994 Cal. App. LEXIS 297

Opinions

Opinion

BENSON, J.

*

Eli azar Sanchez appeals after a jury convicted him of two counts of robbery. He asserts the case must be remanded for resentencing because the trial court failed to state reasons for imposing consecutive, rather than concurrent, sentences. We affirm.

Facts and Procedural History

Jatindergit Singh testified that on February 15, 1992, he was working at a Quik Stop Store on Lei and Road in Pittsburg. He stated that two men—one African-American, one Latino—came into the store and took beer from the cooler. When Singh asked for money, the African-American man displayed a gun and asked, “[y]ou want money or you want. . . .” The men then left the store without paying. Singh identified appellant as one of the men. The incident was videotaped.

Airón Gauff testified that he too was robbed by an African-American man and a Latino man while working in a store on February 15, 1992. He testified that he was suspicious the men were attempting to steal beer and was watching them. Appellant came up behind Gauff, pulled out a gun and said, “Give me the money.” As the men left, appellant warned, “[i]f you call anybody or if you come after me, I’m going to get you.” This incident also was videotaped; Gauff viewed the videotape at trial and identified appellant as the Latino man who robbed the store that night.

The jury convicted appellant of two counts of robbery. (Pen. Code, §§ 211-212.5.)¹ The jury also found true the allegations that appellant personally used a firearm in connection with count 2 (§ 12022.5, subd. (a)) and was armed in connection with count 1 (§ 12022, subd. (a)(1)).

At sentencing, the court noted at the outset that it had read and considered the probation report, and that apart from two letters on an unrelated topic, it had not received any other matter relating to the sentencing. The probation report reflected that defendant had a criminal record dating to 1984, when a juvenile court petition alleging he had committed a burglary was sustained. In 1985, he was committed to a boys’ ranch after a misdemeanor stolen property charge was sustained. Also, in 1985, he escaped from the facility. In April 1988, he was charged as an adult with burglary, pleaded guilty to a misdemeanor burglary charge, was placed on three years’ probation, and was ordered to serve 120 days in county jail. In August 1988, in connection with an incident in which he repeatedly rammed another car at high speed until that car went into a ditch, he was charged with assault with a deadly weapon and drunk driving. He pleaded guilty to drunk driving. In February 1990, he pleaded guilty to resisting a police officer, and was sentenced to 220 days in jail. In March 1991, he was charged with battery, spousal battery, brandishing a firearm, possessing a concealed weapon, and being a felon in possession of a firearm. He pleaded guilty to misdemeanor battery, and was sentenced to 75 days in jail. In March 1992, under unspecified circumstances, he was convicted of felony drunk driving, placed on four years probation, and ordered to serve four months in county jail. Defendant was on probation for this offense when he committed the robberies that led to the charges in this case. The probation officer noted that defendant, then 25 years old, had “a well-established record of violent acting out behavior and continuous substance abuse,” and noted that “[ujnless he is restrained he will continue to be a danger to himself and to others.” The probation officer noted defendant’s poor performance on probation, and that defendant had been in frequent violation of court orders as a juvenile. The probation officer recommended a state prison sentence, but did not recommend any particular term.

At the sentencing hearing, after reaching agreement with the parties that defendant’s use of a gun precluded probation, the court heard argument. The prosecutor asked the court to select aggravated terms on all counts, and to order those terms served consecutively, for the maximum possible sentence of 11 years. As had the probation officer, the prosecutor noted defendant’s long criminal history and the increasing seriousness of the offenses he committed. In response, defendant argued for a lesser term based on defendant’s dependence on alcohol and on the fact that defendant’s accomplice had received a sentence of four years after pleading guilty.

At the conclusion of argument, the court noted that defendant’s offenses were serious, especially because he had used a gun, and stated that in view of those factors, defendant was not “entitled to any special leniency.” The court then referred to defendant’s criminal record, and though noting his record was not as serious as some, the court stated that “this man really does seem out of control.” The court then said that its “sense under the circumstances is that this is not a man who deserves an aggravated term because this isn’t an aggravated offense, but there isn’t a whole lot of evidence by which a Court could find mitigation either.” The court then sentenced defendant to the midterm on count 2 robbery, remarking that it was a “garden-variety” robbery. With respect to the enhancement based on defendant’s use of a firearm in the offense, the court imposed the midterm sentence, noting that the offense appeared to be a “garden-variety-type, no mitigation, no aggravation-type use of the weapon.”² On the second robbery charge, the court imposed the midterm, and ordered that term served consecutively, but without specifying its reason for doing so. Finally, with the remark that it was at least “one area of grace of discretion that I should give you in this particular case,” the court struck an additional enhancing allegation under section 12022.

Discussion

Section 1170, subdivision (c), provides that the court “shall state the reasons for its sentence choice on the record at the time of sentencing.” The decision to impose consecutive rather than concurrent sentences is a “sentence choice” within the meaning of this section. (People v. Bejarano (1981) 114 Cal.App.3d 693, 704 [173 Cal.Rptr. 71]; People v. Reiley (1987) 192 Cal.App.3d 1487, 1489 [238 Cal.Rptr. 297].) An express statement of reasons is required to support such a choice. (People v. Whitehouse (1980) 112 Cal.App.3d 479, 486 [169 Cal.Rptr. 199].) However, where the sentencing court fails to state such reasons, remand for resentencing is not automatic; we are to reverse the sentence only if “it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; see, e.g., People v. Avalos (1984) 37 Cal.3d 216, 233 [207 Cal.Rptr. 549, 689 P.2d 121]; People v. Gutierrez (1991) 227 Cal.App.3d 1634, 1639 [278 Cal.Rptr. 748].)

Appellant complains that, although the court generally discussed some of the factors relevant to its sentence choice, it failed to indicate which of these reasons was used to support its decision to impose a consecutive term for the robbery charged in count 1. Respondent concedes that the court “did not specifically designate any particular factor to support the imposition of a consecutive term,” but contends the court’s discussion of its reasoning was sufficient to support the one sentence choice (the consecutive sentence on count 1) that required a statement of reasons. Though we agree the court erred by failing to state a separate reason for consecutive sentencing, in view of defendant’s extensive criminal history as set out in the probation report, we find it is not reasonably probable that the result would have been different had the court been reminded to state its reasons, and accordingly, we conclude there is no basis for reversal. However, before directly addressing that question, we treat defendant’s claim that the Watson test for reversible error should not apply to a trial court’s failure to state sufficient reasons for its sentencing choices.

Defendant suggests we should follow People v. May (1990) 221 Cal.App.3d 836, 839 [270 Cal.Rptr. 690], in which the court held that the “appropriate harmless error test” for failure to state adequate reasons for consecutive terms was whether “[there is] a reasonable possibility that a statement of reasons would have altered the trial judge’s conclusion or revealed reversible error.” We decline the suggestion because in our view, May’s adoption of that standard was based on an unthinking and mistaken reading of the law.

The vast majority of cases that apply an explicit harmless error standard for procedural error in the selection and statement of reasons for sentencing choices hold that an appellate court should not remand for resentencing unless “ ' “ ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error.’ ” ’ ” (See, e.g., People v. Gutierrez, supra, 227 Cal.App.3d at p. 1638; People v. Price (1991) 1 Cal.4th 324, 492 [3 Cal.Rptr.2d 106, 821 P.2d 610]; People v. Avalos, supra, 37 Cal.3d at p. 233; People v. Edwards (1993) 13 Cal.App.4th 75, 79 [16 Cal.Rptr.2d 572]; People v. McLeod (1989) 210 Cal.App.3d 585, 590 [258 Cal.Rptr. 496]; People v. Scott (1988) 200 Cal.App.3d 1090, 1096 [246 Cal.Rptr. 406]; People v. Jackson (1987) 196 Cal.App.3d 380, 392 [242 Cal.Rptr. 1]; People v. Porter (1987) 194 Cal.App.3d 34, 39 [239 Cal.Rptr. 269].) However, in a few cases, courts have stated the test for such error in the terms defendant suggests, that the appellate court should find the error harmless only if it appears there is no “ ‘reasonable possibility’ ” the result would have been more favorable to the defendant if the error had not occurred. (People v. Gutierrez, supra, 227 Cal.App.3d at pp. 1643-1644 (conc. opn. of Kline, P. J.); People v. May, supra, 221 Cal.App.3d at p. 839; People v. Thompson (1989) 209 Cal. App.3d 1075, 1086 [257 Cal.Rptr. 658]; People v. Preyer (1985) 164 Cal.App.3d 568, 577 [210 Cal.Rptr. 807].) Defendant relies on the latter group to support his claim we should apply a reasonable possibility standard here. However, we believe the courts that have expressed the standard in those terms have mistakenly adopted a test for prejudice which was devised for capital cases, and which is equivalent to the “harmless beyond a reasonable doubt” standard applicable to deprivations of federal constitutional rights. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].) Because we find that standard inappropriate to cases involving ordinary sentencing error, we reject defendant’s claim.

It is established beyond question that with few exceptions, an ordinary criminal judgment may not be reversed for nonconstitutional error unless it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. (Cal. Const., art. VI, § 13; see, e.g., People v. Cahill (1993) 5 Cal.4th 478, 487-493 [20 Cal.Rptr.2d 582, 853 P.2d 1037].) As we have pointed out, that standard has almost universally been applied to a trial court’s failure to either select or articulate proper reasons for a noncapital sentence. Application of that standard to such error is appropriate; as one court put it in an oft-quoted phrase, courts are “unwilling to engage in idle gestures or reach ridiculous results by slavish adherence to ritualistic form.” (People v. Blessing (1979) 94 Cal.App.3d 835, 839 [155 Cal.Rptr. 780].) Where, as in this case, it is improbable that a lower court’s sentencing choice would have been different if it had been reminded to state a proper reason, the constitutional provision forbidding reversal for insubstantial errors should apply, a conclusion which is reinforced by our Supreme Court’s endorsement of that principle in People v. Price, supra, 1 Cal.4th at page 492 and People v. Avalos, supra, 37 Cal.3d at page 233.

In contrast, on review of error occurring in the penalty phase of a capital case, a jury’s judgment of death will be reversed if it is “reasonably possible” that the jury might have reached a different result had a given error not occurred. (People v. Brown (1988) 46 Cal.3d 432, 446-448 [250 Cal.Rptr. 604, 758 P.2d 1135] [rejecting specific challenge to reasonable possibility standard]; see People v. Ashmus (1991) 54 Cal.3d 932, 983 [2 Cal.Rptr.2d 112, 820 P.2d 214]; People v. Hamilton (1963) 60 Cal.2d 105, 136-137 [32 Cal.Rptr. 4, 383 P.2d 412]; and see People v. Crew (1991) 1 Cal.App.4th 1591, 1606 [2 Cal.Rptr.2d 755].) The reasons for applying that stricter standard were explained at length in Brown, supra, in response to a specific claim that absent federal constitutional error, the proper standard for determining prejudice should be that announced in People v. Watson, supra, 46 Cal.2d at page 836. (Brown, supra, 46 Cal.3d at pp. 446-447.) The Brown court pointed out that a capital jury does more than find facts in the penalty phase; it “render[s] an individualized, normative determination about the penalty appropriate for the particular defendant—i.e., whether he should live or die.” (Id. at p. 448.) The court reasoned that “[w]hen the ‘result’ under review is such a normative conclusion based on guided, individualized discretion, the Watson standard of review is simply insufficient to ensure ‘reliability in the determination that death is the appropriate punishment in a specific case.’ [Citations.]” (Ibid.) In later cases, the “reasonable possibility” inquiry has been equated with the “harmless beyond a reasonable doubt” test applicable to cases involving deprivation of federal constitutional rights. (Chapman v. California, supra, 386 U.S. 18; see People v. Heishman (1988) 45 Cal.3d 147, 201 [246 Cal.Rptr. 673, 753 P.2d 629]; People v. Crew, supra, 1 Cal.App.4th at pp. 1605-1606; and see Chapman, supra, 386 U.S. at pp. 22-24 [17 L.Ed.2d at pp. 709-711] [stating that there is little if any difference between the inquiry whether there is a reasonable possibility an error contributed to a verdict and requiring the beneficiary of the error to prove it harmless beyond a reasonable doubt].) Such a standard is appropriate where sentence choice under review is between life or death. (Caldwell v. Missisippi (1985) 472 U.S. 320, 329 [86 L.Ed.2d 231, 239, 105 S.Ct. 2633] [“ ‘the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination’ ”].) However, there is no basis in either the reasoning or the holdings of these cases for application of that standard in review of noncapital sentencing error.

In our view, the few cases which have applied the “reasonable possibility” standard to such error are mistaken, probably because those courts failed to recognize any distinction between the two tests. People v. May, supra, illustrates the point. As here, the defendant in May contended the trial court had erred by failing to state proper reasons for consecutive sentencing. (People v. May, supra, 221 Cal.App.3d at p. 838.) Without discussion, reasoning, or explanation, the court cited People v. Heishman, supra, 45 Cal.3d 147, 201, for the proposition that the defendant was entitled to reversal if there was a “reasonable possibility” the result would have been different had proper reasons been stated. (May, supra, at pp. 839-840.) However, Heishman is one of the many examples of the application of the reasonable possibility test to error occurring in the penalty phase of a capital trial.⁴ For the reasons we have stated, we find such cases do not support the proposition for which Heishman was cited in May, and a fortiori, that May's reliance on Heishman was misplaced.

For similar reasons, we also disapprove the few other cases we have found in which ostensibly apply the reasonable possibility standard to error arising out of a failure to select or state reasons for sentence choices. In People v. Preyer, supra, 164 Cal.App.3d at page 577, the court announced that a failure to state proper reasons for a sentencing choice was harmless because “there [was] no reasonable possibility” the sentence would be different on remand, but immediately cited People v. Watson, supra, 46 Cal.2d at page 836 as authority for the proposition. Watson does not adopt the reasonable possibility test; accordingly, we believe the Preyer court did not intend the dis tinction it appears to make. People v. Thompson, supra, 209 Cal.App.3d at page 1086, quotes the passage from Preyer without additional reasoning, and therefore suffers from the same defect. Finally, because we do not agree that in every case, “. . . there will always appear to be at least an even chance that the court would have imposed the same sentence even without the error,” we also decline to follow the reasoning of the concurring opinion in People v. Guitierrez, supra. (227 Cal.App.3d at p. 1643 [arguing that application of the Watson standard “eviscerate[s] a legislative safeguard central to the DSL”].) Unlike the choice between life and death, there is no quality of ordinary sentencing choices which would require us to ignore the constitutional command that we are to reverse a judgment only where there has been a miscarriage of justice, or in other words, where it is “reasonably probable” the error affected the outcome. (Watson, supra, at p. 836.)

In sum, we conclude that those cases which have stated that a sentencing error in a noncapital case should be reversed if there is a reasonable possibility the result would be more favorable to the defendant on remand are mistaken. The correct test for harmless error in such cases is that announced in People v. Watson, supra, 46 Cal.2d at page 836.⁵ With that conclusion in mind, we return to the facts of this case.

As we have discussed, the court failed to give any specific reason for its decision to impose consecutive sentences. However, in view of the contents of the probation report, we find it improbable the result would have been different had the court been reminded to state its reasons for consecutive sentencing. Taken in context, the court’s statements that defendant did not deserve the aggravated term and that the robberies were “garden variety” appear to be explanations why it chose not to follow the prosecutor’s recommendation for the aggravated terms, not evidence it would not have imposed a consecutive sentence had it been reminded to state its reasons. Given defendant’s long criminal history, his execrable performance on probation, the escalating seriousness of his offenses, and the probation officer’s and the court’s observations that the defendant was out of control and a danger to the community, we conclude the court would not have sentenced defendant differently if reasons had been stated. (Cal. Rules of Court, rule 425(b) [court may refer to “[a]ny circumstances in aggravation or mitigation” in deciding whether to impose consecutive sentences]; see People v. Bravot (1986) 183 Cal.App.3d 93, 98 [227 Cal.Rptr. 810] [different result not reasonably probable where choice of consecutive sentence was supported by the record and consistent with court’s view that defendant was a “ ‘sociopath’ ” and a “ ‘menace to society’ ”].)

Disposition

The judgment is affirmed.

Smith, J., concurred.

Retired Associate Justice of the Court of Appeal, First District, sitting under assignment by the Chairperson of the Judicial Council.

1 All subsequent statutory references are to the Penal Code unless otherwise indicated.

2 A consecutive sentence on this firearm enhancement was required by statute. (Pen. Code, § 12022.5, subd. (a).)

4 Apart from the citation to Heishman, May betrays no consciousness of the distinction between the ordinary Watson standard and the more restrictive reasonable possibility test. In fact, in its general discussion of harmless error in sentencing, May cites numerous cases applying the Watson standard to noncapital sentencing error, and then notes that the same standard was adopted by our Supreme Court in Heishman, a statement which is simply incorrect. (People v. May, supra, 221 Cal.App.3d at pp. 839-840.)

5 A fortiori, we also reject defendant’s claim that due process requires a rule of per se reversal. In view of the universal acceptance of the principle that some form of harmless error analysis should apply to errors occurring in the selection and statement of reasons for ordinary sentencing choices, we find defendant’s argument borders on the frivolous.