People v. Sanchez

• Decision Date: 05 April 1994
• Docket Number: No. A059737,A059737
• Citation: 23 Cal.App.4th 1680,29 Cal.Rptr.2d 367
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eliazar SANCHEZ, Defendant and Appellant.

Page 367

29 Cal.Rptr.2d 367

23 Cal.App.4th 1680

The PEOPLE, Plaintiff and Respondent, v. Eliazar SANCHEZ, Defendant and Appellant.

No. A059737.

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

April 5, 1994.

Rehearing Denied May 4, 1994.

Review Denied July 14, 1994.

R. Stevens Condie, Oakland, First District Appellate Project, San Francisco, for appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Violet M. Lee, Christopher W. Grove, Deputy Attys. Gen., San Francisco, for respondent.

BENSON, Associate Justice, Assigned. ^*

Eliazar 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 Leland 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.

Airon 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 boy's 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 year's 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 "[u]nless 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 mid-term on Count Two, 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 mid-term 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 mid-term, 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 Penal Code 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, 278 Cal.Rptr. 748 [internal marks and citation omitted]; 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, 207 Cal.Rptr. 549, 689 P.2d 121; 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 (...