Opinion
F041904.
11-18-2003
THE PEOPLE, Plaintiff and Respondent, v. JACK LEON BARTON, JR., Defendant and Appellant.
Louis Marinus Wijsen, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Raymond L. Brosterhous and Charles Fennessey, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Defendant, Jack Leon Barton, was convicted of numerous offenses. The court imposed the aggravated term on the principal count and sentenced consecutively on other counts. Defendant appeals, claiming the matter must be remanded for resentencing because the trial court erred in applying factors in aggravation in selecting the aggravated term and in sentencing consecutively. Respondent claims error, if any, was waived. We apply the recent California Supreme Court case of People v. Gonzalez (2003) 31 Cal.4th 745 to find that defendant waived any sentencing error.
Discussion
Defendant was convicted of numerous charges as well as multiple enhancement allegations. The trial court imposed the aggravated seven-year term on count V (manufacture of a controlled substance, Health & Saf. Code, § 11379.6, subd. (a)), with a one-year arming enhancement. The court imposed consecutive sentences on counts I (eight months), III (16 months) and VI (16 months). In addition, it imposed a two-year on-bail enhancement for count VI, a one-year prior prison term enhancement, and a six-year arming enhancement. The court stayed counts II and IV. The total term of imprisonment was 20 years and four months.
Prior to sentencing, defendant filed a statement in mitigation arguing that the court should consider defendants addiction as a mitigating factor. In addition, he asserted the court should stay counts I and II and the Penal Code section 12022 arming enhancement should be stayed, and he asked for leniency on other counts and enhancements.
The probation officers report listed several factors in aggravation as to each count and also listed criteria justifying the imposition of consecutive sentences.
At sentencing, the court acknowledged it had received the probation report. It asked for additions or corrections to the report. The court made corrections to the report on the request of the district attorney. The court began imposing sentence. The district attorney interrupted and asked if the court wanted them to argue sentencing; the court allowed the parties to argue their positions.
Defense counsel stated that he had addressed all of the issues by way of argument in his statement in mitigation. Defense counsel asked the court to stay some of the enhancements based on his statement in mitigation. The court agreed that defendant was facing a tremendous amount of time but that defendant had been properly convicted of the offenses and enhancements. The court deemed the statement in mitigation to be filed and pronounced sentence.
The court concluded its pronouncement of sentence and asked if there was anything further. The district attorney asked for a restitution order and the court granted it. Defense counsel then stated there were a couple of other matters. Defense counsel asked about a registration requirement. The court imposed the registration requirement. Defense counsel then asked if the court was imposing consecutive or concurrent sentences. The court responded the sentences were imposed consecutively. Defense counsel then requested his client be released to take care of matters before his incarceration. The court denied defense counsels request.
Defendant now claims the trial court erroneously imposed the aggravated term without a statement of reasons. Defendant challenges three of the four aggravating factors listed in the probation report as erroneous. Defendant also claims the trial court made a dual use of facts in imposing the aggravated term and consecutive sentences.
Respondent claims that pursuant to People v. Scott (1994) 9 Cal.4th 331 defendant waived these issues on appeal by failing to object at sentencing.
Defendant replies that he did not waive the issues. First, he argues that his statement in mitigation preserved the issues now raised on appeal. We reject this argument. Defendants statement in mitigation did not challenge any of the circumstances in aggravation nor did it challenge reasons for imposing consecutive sentences. In discussing the term for count V in his statement in mitigation, defense counsel argued that the court should give credence to his drug addiction but then went on to state: "It would appear that 7 years [the aggravated term] is arguably appropriate for this count."
Next, defendant argues that the "perfunctory sentencing procedures" adopted by the trial court deprived his counsel of any meaningful opportunity to object at sentencing to the errors he now raises on appeal. He claims that a meaningful opportunity to object requires the trial court to clearly apprise the parties of its sentence choices and the reasons for the choices before the parties make any objections and before sentence is imposed.
In People v. Scott, supra, 9 Cal.4th 331, the California Supreme Court held "that a party in a criminal case may not challenge the trial courts discretionary sentencing choices on appeal if that party did not object at trial. Scott stressed, however, that counsel must have a `meaningful opportunity to object [which] can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary sentencing choices." (People v. Gonzalez, supra, 31 Cal.4th at p. 748.)
In People v. Gonzalez, supra, 31 Cal.4th 745 the California Supreme Court recently held that a trial court is not required to issue a tentative decision before the sentencing hearing. "It is only if the trial court fails to give the parties any meaningful opportunity to object that the Scott rule becomes inapplicable." (Id. at p. 752.) In Gonzalez the trial court sentenced the defendants. As part of the sentence, it relied on the defendants firearm use as a reason for its sentence. It relied on this factor without giving the parties notice of its intention to do so. On appeal, defendants claimed the trial court erred in relying on the fact they were armed to both impose the upper term and then as a firearm use enhancement. The California Supreme Court found the defendants waived this issue by failing to object at sentencing. Although the Supreme Court found the trial court "should have more clearly given the parties a meaningful opportunity to object by saying it was announcing proposed sentences for each defendant and its reasons for the sentences, that the prosecutor and defendants were entitled to object, and that if the objections were meritorious it would alter the sentences appropriately" (id. at p. 755), the parties were in any event given a meaningful opportunity to object. A meaningful opportunity was found because after sentence was imposed the trial court allowed the defendants to object to portions of the sentence (not raised on appeal) and did not tell them their objection was untimely or impermissible. The court considered and rejected their objections. Thus, the defendants had a meaningful opportunity to object within the meaning of Scott. (Ibid.)
The trial court here acted similarly to the trial court in Gonzalez. The court imposed sentence without first giving a tentative decision, with the exception of one brief comment that it was going to impose the aggravated term. But, after it imposed sentence, it asked the parties if there was anything further. At this time, the district attorney brought up a point and defense counsel brought up several points. The court did not preclude them from making any arguments nor did it state that their objections were untimely or impermissible.
Defendant was given a meaningful opportunity to object to the sentence imposed by the trial court. Defendant did not object on the grounds he now raises on appeal. Therefore, he may not now raise these claims.
Disposition
The judgment is affirmed. --------------- Notes: Before Vartabedian, Acting P.J., Buckley, J. and Cornell, J.