People v. Gonzalez

• Decision Date: 21 August 2003
• Docket Number: No. S107167.,S107167.
• Citation: 74 P.3d 771,31 Cal.4th 745,3 Cal.Rptr.3d 676
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alejandro P. GONZALEZ et al., Defendants and Appellants.

3 Cal.Rptr.3d 676

31 Cal.4th 745

74 P.3d 771

The PEOPLE, Plaintiff and Respondent, v. Alejandro P. GONZALEZ et al., Defendants and Appellants.

No. S107167.

Supreme Court of California.

August 21, 2003.

Harvey L. Goldhammer, under appointment by the Supreme Court, Glendale, for Defendant and Appellant Alejandro P. Gonzalez.

Deborah L. Hawkins, under appointment by the Supreme Court, San Diego, for Defendant and Appellant Jaime Pano.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting, Pamela R. Ratner and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

In People v. Scott (1994) 9 Cal.4th 331, 36 Cal.Rptr.2d 627, 885 P.2d 1040 (Scott), this court held that a party in a criminal case may not challenge the trial court's discretionary sentencing choices on appeal if that party did not object at trial. Scott stressed, however, that counsel must have a "meaningful opportunity to object ... [which] can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose, and the reasons that support any discretionary sentencing choices." (Id. at p. 356, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) To effectuate that requirement, must the trial court issue a tentative decision before the sentencing hearing? The answer is "no."

I

As jewelry salesman Dominguez Sosa backed his car out of his garage, codefendants Alejandro Gonzalez and Jaime Pano accosted him at gunpoint and got in the car, ordering Sosa into the passenger seat. They threatened to harm Sosa's family if he did not cooperate, claiming that two people were in his garage waiting for instructions. After defendants drove with Sosa for several hours, taking his gold ring, the car stalled on the freeway shoulder. Shortly thereafter, a patrol car with two officers pulled up. While the officers talked to defendants, Sosa alerted them to his capture by handing them an envelope on which he had written, "Help me. He's got a gun." Sosa later discovered that jewelry had been stolen from his home while defendants held him captive. Defendants were charged with kidnapping for robbery (Pen.Code, § 209),¹ carjacking (§ 215, subd. (a)), second degree robbery (§ 211), criminal threats (§ 422), and kidnapping for carjacking (§ 209.5, subd. (a)). The information also alleged, as sentence enhancements, that each defendant used a firearm during the commission of these crimes (§ 12022.53, subd. (b)), and that defendant Gonzalez had served a prior prison term (§ 667.5, subd. (b)).

Defendants waived the right to a jury trial, and they agreed to submit the matter to the trial court based on the investigative reports and the transcript of the preliminary hearing. The court convicted both defendants of kidnapping (a lesser offense necessarily included in the charged crime of kidnapping for robbery), as well as the charged crimes of carjacking, robbery, and criminal threats. The court acquitted defendants of kidnapping for carjacking. It found the firearm use enhancement to be true as to each defendant. Defendant Gonzalez admitted the prior prison term enhancement.

Each defendant's probation report listed the planned nature of the crimes as an aggravating circumstance, and defendant Gonzalez's report also mentioned that he was on parole when he committed the offenses. Defendant Gonzalez's probation report listed no mitigating circumstances, while defendant Pano's probation report listed his lack of a prior criminal record as the only mitigating circumstance. The probation reports recommended that each defendant pay a restitution fine of $1,000.

At the sentencing hearing, Sosa requested the court to order defendants to pay restitution for jewelry that was stolen from his home while defendants had kidnapped him. He initially said his loss was "about $9,000," but he then corrected himself, stating that he had lost approximately $5,000 and that he had brought receipts with him to court. After listening to Sosa's statement, the court said it would "consider restitution."

After hearing arguments from the prosecutor and counsel for defendant Gonzalez, and a personal statement from defendant Pano, the trial court announced its sentence. For each defendant, it stayed execution of sentence for the charges of kidnapping and criminal threats. (§ 654.) It selected the crime of carjacking as the base term for each defendant and chose the aggravated term, nine years in prison, because they were armed when they committed that offense. It sentenced each defendant to one year in prison for robbery, to be served consecutive to the sentence for carjacking, and it sentenced each defendant to 10 consecutive years in prison for the firearm-use enhancement. It also sentenced defendant Gonzalez to one consecutive year for his prior prison term. Thus, the court sentenced Gonzalez to a total of 21 years in prison and Pano to 20 years. It also ordered defendants to pay restitution of $5,000 to Sosa, for which they were jointly and severally responsible, and it ordered each defendant to pay a restitution fine of $5,000.

Defendants objected to the restitution order, arguing that it was for a loss related to a crime they were neither charged with nor convicted of committing. The court responded: "The objection [is] noted for the record."

On appeal, defendants argued that in imposing sentence, the trial court had impermissibly relied twice on the fact that they were armed when they committed the crimes: first to impose the upper term for carjacking, and then to impose the firearmuse enhancement. They further argued that the restitution order violated their due process rights because the court had not given them notice and an opportunity to be heard, and that the restitution was improper because they were not convicted of stealing Sosa's jewelry. The Attorney General responded that the first two of these claims were not properly before the Court of Appeal because of defendants' failure to raise them in the trial court.

The Court of Appeal held that none of defendants' claims was barred on appeal. It reasoned that because the probation reports did not list firearm use as an aggravating circumstance, and the trial court did not indicate before it imposed sentence that it would use this circumstance as an aggravating factor, defendants did not know the trial court would impermissibly use this fact twice. Accordingly, the Court of Appeal held that the trial court did not apprise defendants of this aspect of its intended sentence and the reasons for its sentencing choices before it pronounced judgment, and therefore Scott, supra, 9 Cal.4th 331, 36 Cal.Rptr.2d 627, 885 P.2d 1040, did not bar them from challenging the sentence on this ground. The Court of Appeal also held that defendants could raise an appellate challenge to the trial court's restitution order on the ground that the trial court had ordered them to pay restitution without giving them notice and an opportunity to contest the restitution amount. Concluding that the trial court's sentence was improper in each of these respects, the Court of Appeal reversed the judgment and remanded the case to the trial court for resentencing.

We granted the Attorney General's petition for review.

II

In Scott, this court prospectively announced a new rule: A party in a criminal case may not, on appeal, raise "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" if the party did not object to the sentence at trial. (Scott, supra, 9 Cal.4th at p. 353, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) The rule applies to "cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons" (ibid.), but the rule does not apply when the sentence is legally unauthorized (id. at p. 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040).

Scott reasoned: "[C]ounsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Scott, supra, 9 Cal.4th at p. 353,36 Cal.Rptr.2d 627,885 P.2d 1040.) Such a requirement would "reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them." (Ibid.) Scott perceived no unfairness to the parties. It explained: "The parties have ample opportunity to influence the court's sentencing choices under the determinate scheme. As a practical matter, both sides often know before the hearing what sentence is likely to be imposed and the reasons therefor. Such information is contained in the probation report, which is required in every felony case and generally provided to the court and parties before sentencing. [Citations.] In anticipation of the hearing, the defense may file, among other things, a statement in mitigation urging specific sentencing choices and challenging the information and recommendations contained in the probation report. [Citations.] Relevant argument and evidence also may be presented at sentencing. [Citations.] ... [A] defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent." (Scott, supra, 9 Cal.4th at pp. 350-351,36 Cal. Rptr.2d 627,885 P.2d 1040.)²

But Scott went on to say: "[T]here must be a meaningful opportunity to object to the kinds of claims otherwise deemed waived by today's decision." (Scott, supra, 9 Cal.4th at p. 356, ...