People v. Gutierrez

• Decision Date: 01 March 1991
• Docket Number: No. A049255,A049255
• Citation: 227 Cal.App.3d 1634,278 Cal.Rptr. 748
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael S. GUTIERREZ, Defendant and Appellant.

Page 748

278 Cal.Rptr. 748

227 Cal.App.3d 1634

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael S. GUTIERREZ, Defendant and Appellant.

No. A049255.

Court of Appeal, First District, Division 2, California.

March 1, 1991.

Review Denied May 22, 1991.

Alison Hardy, San Quentin, First Dist. Appellate Project, San Francisco, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., Richard B. Inglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Morris Beatus, Supervising Deputy Atty. Gen., Matthew R. Golde, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

BENSON, Associate Justice.

Michael Gutierrez appeals under Penal Code section 1237, from the sentence imposed on him in case No. 16778 C for violations of PENAL CODE SECTIONS 459¹ (residential burglary), 496 (receiving stolen property), and in case No. 16135-C for violation of section 666 (theft). Appellant was found guilty of residential burglary and receiving stolen property in a jury trial, and in a separate and unrelated case, pled guilty to the theft charges. The sole issue on appeal is whether the trial court's failure to state reasons for imposing a consecutive sentence for the unrelated theft offense constitutes harmless error. Appellant also requests that the abstract of judgment be modified to reflect the correct amount of credit for time served as shown by the reporter's transcript of the sentencing hearing.

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 section 666 with a one-year enhancement imposed under section 667.5, subdivision (b) for a prior prison sentence. This theft offense had occurred on January 21, 1989.

On December 12, 1989, an information was filed in the Sonoma County Superior Court charging appellant with two counts of burglary in violation of section 459, two counts of possession/receiving stolen property in violation of section 496, and alleging one prior prison term within the meaning of section 667.5, subdivision (b). The burglary occurred on November 3, 1989. The stolen property was found in appellant's car on November 9, 1989.

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 stolen property. He was acquitted of the other charges. The trial court found true the charged prior prison term.

Sentencing

On March 26, 1990 appellant was sentenced on the burglary and receiving stolen goods charges, and resentenced pursuant to section 669 on the prior theft charge.

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 section 462, subdivision (a), finding no unusual circumstance and noting that appellant's prior performance on probation had been unsatisfactory. The court also found appellant's "prior convictions as an adult and adjudications, and commissions of crimes as a juvenile are numerous." The court then stated, "And based upon that the Court finds that the aggravated term for Section 459 is appropriate," sentencing appellant to six years on that count. The court then sentenced appellant to one-third the midterm, eight months, to run concurrently on the receiving stolen property count. (This sentence was later amended to two years, concurrent and stayed.) The court determined the term would run concurrently because the crimes were so close in time as to indicate a single period of aberrant behavior. The court sentenced appellant to one year under section 667.5 for the prior prison term, for a total of seven years.

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 for theft. In imposing a different sentence in March 1990, the judge was required to specify how the second sentence should run with respect to the prior sentence. Section 669 allows the court the option of running a sentence concurrently or consecutively. If imposing a sentence consecutively, the court was required by section 1170.1 to aggregate the sentences into one term of imprisonment. This aggregate term is to be composed of the sum of a principal term, a subordinate term, and any enhancements imposed under section 667.5. The subordinate term for a consecutive offense is to consist of one-third of the middle term of imprisonment prescribed for that offense.

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, 258 Cal.Rptr. 496.)

"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.

The presence of both these factors suggests imposition of a consecutive sentence in the present case. The theft occurred on January 21, 1989; the residential burglary and receiving stolen property crimes occurred on November 3 and 9, 1989. The January and November crimes were obviously independent of each other, and committed at different times and places.

Under 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 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 459, the court stated that the decision was based on appellant's prior criminal history and poor performance on probation. In imposing an upper term for the theft at the earlier hearing, the sentencing court there could not have considered these factors since the present case had not yet resulted in conviction. Thus, the rule prohibiting the dual use of facts could not have been violated.

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...