People v. Oseguera
Decision Date | 23 November 1993 |
Docket Number | No. A060986,A060986 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Ramiro Moreno OSEGUERA, Defendant and Appellant. |
Michael B. McPartland, Petaluma, under appointment by the Court of Appeal, for defendant and appellant.
Daniel E. Lundgren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Martin S. Kaye, Deputy Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
Ramiro Moreno Oseguera ("defendant") appeals from the judgment following remand for resentencing after we found in his favor in an earlier appeal. 1 He contends the court erred by failing to direct preparation of a supplemental probation report, and that the court did not state adequate reasons for imposing a consecutive sentence. We affirm.
We adopt the statement of fact from our earlier opinion.
Defendant appealed. We held the trial court had erred by failing to state adequate separate reasons for its apparent choice to impose both the upper terms and a consecutive sentence, though it had evidence before it which would have supported both sentencing choices had it articulated its reasons properly. Under some circumstances, we might have found similar error harmless. However, because the court failed to state any reason for the consecutive sentence, or indeed, to refer at all to that choice, the record left open the possibility the court had been unaware of its discretion not to impose such a sentence. For that reason, we concluded we were unable to find the error harmless, and we reversed and remanded.
On remand, the trial court again sentenced defendant to the upper term of three years on the driving under the influence (DUI) charge, a consecutive eight-month term on the first firearm count, concurrent terms on misdemeanor counts, and a stayed upper term of three years on the second firearm count. During sentencing, the trial court noted its earlier sentence was that recommended by the probation officer. The court stated its choice to deny probation was based on the defendant's "extensive criminal history, ... transitory lifestyle, denial of substance abuse, doubts that he would be able to comply with the terms of probation, and [that he] expresses no remorse for his criminal conduct." The court said it selected the upper terms because the defendant had "numerous" convictions, and the consecutive sentence because the DUI and weapons offenses were "predominantly independent of each other." The court did not order a supplemental probation report, the parties did not request one, and there was no objection or reference to its absence at the hearing or before.
Defendant first contends we must again reverse and remand because the court failed to obtain and consider a supplemental probation report before resentencing. It is established that a trial court must order and consider such a report on remand for resentencing. (Pen.Code, § 1203, subd. (b); People v. Rojas (1962) 57 Cal.2d 676, 682, 21 Cal.Rptr. 564, 371 P.2d 300; see, e.g., People v. McClure (1987) 191 Cal.App.3d 1303, 1305, 237 Cal.Rptr. 90 [ ].) Here, there is no dispute defendant was eligible for probation, and therefore under the stated principle was entitled to a supplemental probation report before resentencing. However, there was no request for a supplemental report, no objection made to the second sentencing proceeding on that ground, and no indication from either defendant or his counsel at the hearing that they were unready to proceed. Accordingly, the requirement of a supplemental report was waived. (People v. Begnaud (1991) 235 Cal.App.3d 1548, 1554-1556, 1 Cal.Rptr.2d 507 [ ].) As in Begnaud, there is nothing in the record indicating any reluctance on defendant's part to proceed without the report, and no indication that defendant believed there were additional facts to be presented to the court that might have influenced the court's decision. 2 (Id. at p. 1556, n. 7, 1 Cal.Rptr.2d 507; cf. People v. Gotto (1955) 138 Cal.App.2d 165, 168, 291 P.2d 41 [ ].) The authorities defendant relies on...
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