Opinion
G061457
10-16-2023
THE PEOPLE, Plaintiff and Respondent, v. DONALD RALPH PIERCE, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Michael J. Patty, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 14CF0536 Kimberly Menninger, Judge. Affirmed.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Michael J. Patty, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOETHALS, J.
Donald Ralph Pierce appeals from the trial court's resentencing order after the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended that he be resentenced pursuant to Penal Code section 1170.03, subdivision (a)(1). Pierce's sole contention is that the court's order must be reversed because the court failed to state on the record its reasons for the new sentence it imposed, as required by California Rules of Court, rule 4.420(i).
Penal Code section 1170.03 was renumbered as section 1172.1 with no substantive change effective June 30, 2022 (Stats. 2022, ch. 58, § 9). Unless otherwise indicated, all further statutory references are to this Code.
However, as Pierce acknowledges, he did not object to the court's error at the time it was made, and consequently the claim is forfeited. The order is therefore affirmed.
FACTS
In 2014, Pierce was convicted by a jury of one count of carjacking in violation of section 215, subdivision (a), and one count of an unlawful taking of vehicle in violation of Vehicle Code section 10851, subdivision (a). He admitted prior strike convictions and that he had served a prior prison term as a result of a felony conviction for possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a).
The court sentenced Pierce to serve a total of sixteen years in state prison after dismissing his prison prior and exercising its discretion to strike one of his strike priors. The 16-year term was comprised of six years (double the low term due to his prior strike) for the carjacking count, a concurrent four years on the count of an unlawful taking of a vehicle, plus a consecutive five-year term for each of the two prior serious felonies.
This court later vacated the sentence imposed on the Vehicle Code section 10851 count and ordered sentencing on that count permanently stayed.
In January 2022, the Secretary of the CDCR sent the trial court a letter pursuant to former section 1170.03, requesting that it consider recalling Pierce's sentence and resentencing him in light of the earlier change in section 1385 that gave courts the discretion to strike punishment imposed related to prior serious felony convictions.
On March 16, 2022, the court appointed counsel for Pierce and set the matter for status conference on March 25, 2022. At that status conference, the court met with counsel in chambers, and then stated in open court that section 1170.03 required it to recall Pierce's sentence unless the prosecutor was able to overcome the presumption created by the CDCR request by showing Pierce would pose an unreasonable risk to public safety if his sentence was reduced. The court noted it appeared the prosecutor would not be making such a showing. The court then "ma[d]e an offer on the record," and stated its proposed new sentence would be 15 years, consisting of double the midterm of five years on the carjacking count, plus five years for one of the prior serious felony counts. Pierce's counsel requested permission to discuss the offer with him, so the court continued the hearing to April 8, 2022.
At the April 8 hearing, the court indicated it had read and considered the letters submitted by the defense and observed "it looks like [Pierce] has changed, and the court is inclined to resentence him from the 16 year sentence to 15 years." The court then imposed the 15-year sentence it had proposed at the status conference. Pierce's counsel offered no objection and made no argument for a lesser term. Counsel did not ask the court to state its reasons for the new sentence.
DISCUSSION
Section 1172.1 gives the court discretion to recall a defendant's sentence and impose a new sentence. The court can do so in its own motion within 120 days of the defendant's commitment to the CDCR, or at any time at the request of the Secretary of the CDCR. The statute further provides that where, as here, the recall request is initiated by the CDCR, the court must apply a presumption in favor of recall that can be overcome only by a finding that the defendant poses an unreasonable risk to public safety, as defined in section 1170.18, subdivision (c). (§ 1172.1, subd. (b)(2).)
Section 1172.1 also requires a court to state its reasons on the record for granting or denying recall and resentencing (id., subd. (a)(6)) and states that "[r]esentencing shall not be denied . . . without a hearing ...." (id., subd. (a)(8)).
California Rules of Court, rule 4.420 sets forth the requirements for imposition of any term of imprisonment. Subdivision (i) of rule 4.420 states that "[t]he reasons for selecting one of the three authorized terms of imprisonment referred to in section 1170(b) must be stated orally on the record."
Pierce's sole contention in this appeal is that the trial court erred by failing to state its reasons for sentencing him to the middle term on his carjacking count. The Attorney General counters by asserting the issue is forfeited because Pierce did not raise the issue in the court below. We agree, based on People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).
As explained by our Supreme Court in People v. Stowell (2003) 31 Cal.4th 1107, "[t]he forfeiture doctrine is a 'well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been-but were not-raised in the trial court. [Citation.]' [Citations.] Strong policy reasons support this rule: 'It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]' [Citation.] '"'"The law casts upon the party the duty of looking after his 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 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."'"'" (Id. at p. 1114.)
In Scott, the Supreme Court held the forfeiture rule applies in this situation: "Courts of Appeal have applied the waiver doctrine to various issues concerning the manner in which sentence is imposed and the hearing is conducted. Most notable are a minority of cases holding that a defendant cannot complain for the first time on appeal about the court's failure to state reasons for a sentencing choice. [Citations.] [¶] Faced squarely with the issue for the first time, we adhere to this minority view. We conclude that the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are 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." (Scott, supra, 9 Cal.4th at pp. 352-353, fn. omitted.)
Although Pierce argues the forfeiture rule should not be applied, largely because the Attorney General has conceded the error, we are bound by Scott. And even if we were not, the forfeiture rule makes particular sense in the context of an appeal where the sole claim of error is the court's failure to state reasons for a ruling. Pierce does not challenge the sentencing decision on the merits. He suggests only that if the court were required to articulate its reasons for its sentencing choice on remand, it would have made a different, and likely more favorable decision. (People v. Zamarron (1994) 30 Cal.App.4th 865, 870.) While Scott provides some support for the idea that requiring courts to articulate reasons could affect the merits of their sentencing decisions (Scott, supra, 9 Cal.4th at p. 351 ["The requirement [that the court state its reasons] encourages the careful exercise of discretion and decreases the risk of error"]), that assertion does not provide a persuasive basis for reversal here.
We will not presume the court's error in failing to state its reasons was harmful because to do so would suggest the court did not carefully consider its ruling. Absent affirmative evidence to the contrary, we are required to presume the court appropriately considered its decision, and it was based on proper reasoning. "[T]he general rule is that, faced with a silent record, an appellate court will presume that the trial court performed its duty and acted in the lawful exercise of its jurisdiction." (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 715.) With that presumption in mind, we cannot conclude that requiring the court to make a record of its reasoning on remand would change its decision.
In any event, we believe the more salient justification for the rule requiring courts to state the reasons for their sentencing decisions is the second one raised in Scott: i.e., in "[t]he statement of reasons also supplies the reviewing court with information needed to assess the merits of any sentencing claim and the prejudicial effect of any error." (Scott, supra, 9 Cal.4th at p. 351.) In other words, the rule recognizes that without an explanation of the trial court's reasoning, a reviewing court often lacks a sufficient basis to assess whether the lower court abused its discretion in choosing a sentence.
People v. McLeod (1989) 210 Cal.App.3d 585 (McLeod) also makes this point. In McLeod, the trial court failed to state reasons for its decision to impose consecutive sentences, stating only "that it would 'follow the recommendation of the probation officer'" in doing so. (Id. at p. 590.) The appellate court concluded the court's failure to state its reasons was harmless error because "[t]he probation report is in the record. It contains an ample statement of reasons for the recommendation that appellant receive consecutive sentences. Our ability to review the trial court's decision to follow that recommendation is not impaired." (Ibid.)
When we focus on that justification for requiring the court to state its reasons, it underscores the inefficiency of allowing a defendant to raise this issue for the first time on appeal. For a defendant to obtain meaningful relief-i.e., a lower sentence-it would require two separate appeals: the first to obtain the ruling obligating the court to state the reasons for its decision, and the second to allow the defendant to argue why those reasons demonstrate error on the merits of the decision.
We cannot endorse such an attenuated process, when the alternative requires only that a defendant who is dissatisfied with the court's sentencing decision make a minimal effort in the trial court to ensure the record is sufficient to allow an appeal on the merits. We consequently affirm the court's ruling.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: MOORE, ACTING P. J. SANCHEZ, J.