People v. Neal

• Decision Date: 27 October 1993
• Docket Number: No. B068618,B068618
• Citation: 24 Cal.Rptr.2d 129,19 Cal.App.4th 1114
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Willie B. NEAL et al., Defendants and Appellants.

Page 129

24 Cal.Rptr.2d 129

19 Cal.App.4th 1114

The PEOPLE, Plaintiff and Respondent, v. Willie B. NEAL et al., Defendants and Appellants.

No. B068618.

Court of Appeal, Second District, Division 5, California.

Oct. 27, 1993.

Certified for Partial Publication ^*

Rehearing Denied Nov. 9, 1993.

Review Denied Feb. 3, 1994.

Barbara A. Smith, Spring Valley, David L. Kelly, San Diego, under appointment by the Court of Appeal, for defendants and appellants.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Marc E. Turchin, Supervising Deputy Atty. Gen., Janet E. Burns, Deputy Atty. Gen., for plaintiff and respondent.

TURNER, Presiding Justice.

PROCEDURAL HISTORY

Defendants, Willie Neal and Patrick Shelton, appeal from multiple convictions for a series of armed robberies which they committed at various places during January of 1991. They were jointly charged by an amended information with 17 counts (1 through 6, 8 through 10, 13 through 15, 17 through 20, and 22) of second degree robbery (Pen.Code § 211) ¹, 2 counts (7 and 25) of attempted second degree robbery (§§ 211, 664), and 4 counts (16, 21, 23, and 24) of assault with a firearm. (§ 245, subd. (a)(2).) Mr. Neal alone was charged with second degree robbery in count 11 (§ 211) and in count 12, only Mr. Shelton was charged with receiving stolen property from that robbery. (§ 496, subd. (1).) The amended information also alleged defendants personally used firearms in committing the crimes (§§ 12022.5 and 1203.06, subd. (a)(1)) in counts 1 through 11 and 13 through 25 and that Mr. Neal had served a prior prison term. (§ 667.5, subd. (b).) After a jury found defendants guilty as charged, the trial court sentenced Mr. Neal to 37 years, 8 months in prison with 711 days of credit and Mr. Shelton to 28 years with 651 days of credit. They filed timely appeals from the judgments.

Defendants assert on appeal that: (1) there was insufficient evidence to support their convictions in counts 1 through 5 (robbery) and 11 (robbery and receiving stolen property); (2) the trial court committed reversible error in excluding third party culpability evidence; and (3) the trial court erred in failing to state reasons for imposing consecutive sentences against Mr. Shelton. The Attorney General argues that certain jurisdictional sentencing errors as to Mr. Neal warrant a remand. As to Mr. Shelton, we affirm the judgment, although we have increased the amount of his presentence credits. As to Mr. Neal, we affirm the judgment except as to certain jurisdictional sentencing errors which are to be corrected on remand. In the published portion of this opinion, we hold that Mr. Shelton's contention that the trial judge failed to properly state reasons for imposing consecutive sentences has been waived by the failure to have interposed a contemporaneous objection to the apparent noncompliance with the sentencing rules in superior court.

I. FACTS ^**

II. DISCUSSION

A.-B. ^**

C. The Consecutive Sentences

Mr. Shelton contends the trial court failed to state reasons for imposing numerous consecutive sentences. Mr. Shelton is correct that a sentencing judge must state reasons for a sentence choice. (§ 1170, subd. (c).) A consecutive sentence requires the sentencing judge to articulate a statement of reasons. (People v. Belmontes (1983) 34 Cal.3d 335, 347, 193 Cal.Rptr. 882, 667 P.2d 686; People v. Ramirez (1985) 165 Cal.App.3d 214, 218-219, 212 Cal.Rptr. 1.) In the present case, consecutive sentences were imposed. The sentencing judge did not explicitly state why he had chosen to impose consecutive sentences. However, defense counsel never interposed an objection to the sentencing judge's failure to state reasons for selecting consecutive sentences. We agree with the Attorney General that recent Supreme Court decisional authority leads to the conclusion that defense counsel's failure to have objected to the failure to state reasons for the sentence choice precludes this specific issue from being raised on appeal. ²

First, although the California Supreme Court has never directly addressed the issue of waiver as it applies to a failure to state reasons for a sentence choice, it has set forth general rules applicable to preserving assignments of error on appeal. In People v. Saunders (1993) 5 Cal.4th 580, 589-590, 20 Cal.Rptr.2d 638, 853 P.2d 1093, our Supreme Court described the general rule, as well as its justification, as follows: " ' "An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver.... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial." ' [Citation.] ' "The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had...." ' [Citation.] ' "No procedural principle is more familiar to this Court than that a constitutional right," or a right of any sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." [Citation.]' [p] 'The rationale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal.App. 603, at page 610 ...: " 'In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his [or her] legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to [her or] his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.' " ' [Citation.]" (Original italics; fn. omitted; accord, Doers v. Golden Gate Bridge etc., Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, 151 Cal.Rptr. 837, 588 P.2d 1261.)

Our Supreme Court has applied this general rule of law in varying circumstances in the sentencing context. ³ In People v. Walker (1991) 54 Cal.3d 1013, 1022-1023, 1 Cal.Rptr.2d 902, 819 P.2d 861, the defendant was not advised that a consequence of his guilty plea would be that he would be subject to a restitution fine pursuant to Government Code section 13967, subdivision (a). However, at the time of sentencing, no objection was interposed to the authority of the court to impose a restitution fine because there had been no advisement of that consequence at the time of the guilty plea. Our Supreme Court held: "Second, the error is waived absent a timely objection. In People v. Melton [ (1990) 218 Cal.App.3d 1406, 1408, 267 Cal.Rptr. 640], as in this case, the imposition of a fine was recommended in the probation report. The Melton court held that the defendant's failure to object to the fine at the sentencing hearing waived the failure to advise of the possibility of the fine. We agree. 'The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had.... [p] In this case, the record reflects that defense counsel was familiar with the probation report. Had the recommendation that defendant be ordered to pay a restitution fine come as a genuine surprise, it would have been a simple matter to bring the issue to the attention of the trial court.' [Citation.]" ⁴ (Id. at p. 1023, 1 Cal.Rptr.2d 902, 819 P.2d 861.) Accordingly, in Walker, our Supreme Court applied the waiver rule to a restitution fine imposed at a sentencing hearing.

In People v. Welch (1993) 5 Cal.4th 228, 235-237, 19 Cal.Rptr.2d 520, 851 P.2d 802, a defendant did not object that a particular probation condition was inappropriate in the trial court. Rather, the issue was raised for the first time on appeal. Our Supreme Court held: "It is settled that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal. [Citations.] No different rule should generally apply to probation conditions under consideration at the same time. A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. The parties must, of course, be given a reasonable opportunity to present any relevant argument and evidence. A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis. [Citations.]" (Id. at pp. 234-235, 19 Cal.Rptr.2d 520, 851 P.2d 802, fn. omitted.) Certainly, the same analysis would apply to a failure to state reasons for imposing a consecutive sentence. A timely objection would permit the court to insure that its sentence choice was rationally based. Further, just as a defendant has a duty to object to errors or omissions in a probation report, reason leads inextricably to the conclusion that no different rule should apply to a sentence which is based in part upon what appears in the probation officer's analysis. Accordingly, Welch is substantial authority for the proposition that defense counsel in the present case, if he desired to preserve the issue for appellate review, should have interposed an objection.

In Welch, our Supreme Court construed its prior decision of People v. Chi Ko...