Opinion
D041234.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. TAWANDA BELCHER, Defendant and Appellant.
On January 20, 2000, Tawanda Belcher entered a negotiated guilty plea to selling cocaine base. (Health & Saf. Code, § 11352, subd. (a).) The court suspended imposition of sentence and placed her on three years probation including a condition she serve 180 days in custody. On May 23, 2001, the court revoked and reinstated probation on condition Belcher serve 365 days in custody. On December 18, 2001, it again revoked and reinstated probation on condition Belcher serve 365 days in custody. When Belcher requested a brief delay in reporting to custody, the court sentenced her to the four-year middle term and stayed execution of sentence. On November 11, 2002, the court revoked probation and executed the four-year prison term for selling cocaine base. Belcher contends the trial court erred in failing to exercise discretion in choosing the length of the prison term.
Belcher argues that the trial court stayed the four-year prison term imposed on December 18, 2001, on condition she return for incarceration after a short continuance to arrange personal matters. She argues that when she returned on December 26, the condition was satisfied and the four-year sentence should have been deleted. She argues that when the trial court executed the four-year sentence on November 11, 2002, it erroneously relied on the stayed sentence rather than exercising discretion in imposing the prison term.
On December 18, 2001, when the court imposed the four-year term, Belcher asked for several days to report to custody so she could arrange for placement of her children. The court said:
"Its against my better judgment, but Ill go along with this. Probation is denied. You are committed to the Department of Correction for the middle term of four years. Credits today are 168 and 80, for 248 days credit. That term is stayed. Ill reinstate you on probation. Commit you to the custody of the sheriff for 365 with those credits. Im going to release you today. Execution is stayed for 48 hours. Youre to report back to my department."
On December 21, Belcher returned as promised. She requested an additional 10 days to arrange for childcare. The court said, "Ill continue this till Wednesday at 10:00 oclock. You get it done between now and then because youre going into custody on Wednesday. If you dont show up, four years in prison."
Belcher returned on December 26 and the court executed the 365-day term. No mention was made of the previously stayed prison term.
On November 1, 2002, the court imposed the four-year term. It said, "At this time Ill accept the admission, formally revoking probation in this matter. [¶] The defendant was previously sentenced to four years. The sentence was stayed. It would be my intent to impose the four-year term at this time."
Belcher did not object but requested referral to the California Rehabilitation Center (CRC), which the court ordered suspending the prison term. After CRC found Belcher ineligible for CRC, the court sentenced her to prison for four years.
At the outset the People argue the appeal is untimely because Belcher had to have appealed the four-year stayed sentence within 60 days of its imposition on December 18, 2001. (See Cal. Rules of Court, rule 31 (a); People v. Arguello (1963) 59 Cal.2d 475, 476.) However, since Belcher apparently was under the reasonable belief that the four-year sentence would be inoperative if she returned to court as ordered, she was not prejudiced by the stayed sentence and reasonably believed there was nothing to appeal until the sentence was imposed in November 2002. Only aggrieved parties have the right to appeal. (Winter v. Gnaizda (1979) 90 Cal.App.3d 750, 754.)
However, even if Belcher is correct that the four-year middle term imposed on December 18, 2001, was stayed only on the condition she return to court as ordered, and should have been stricken when she returned, her failure to object when the term was executed in November 2002 precludes her from contesting the term on appeal. In People v. Scott (1994) 9 Cal.4th 331, 356, the Supreme Court said, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." Belcher argues that Scott is inapplicable here because she is claiming the trial court did not exercise discretion when it imposed the stayed four-year term not that it erred in exercising discretion in analyzing factors in aggravation and mitigation existing at the time of original sentencing.
A trial court exercises discretion when it chooses the appropriate prison term. Determination as to the appropriate term is within the trial courts broad discretion (People v. Roe (1983) 148 Cal.App.3d 112, 119). In People v. Scott, supra, 9 Cal.4th 331, the defendant challenged the statement of reasons supporting a sentencing choice. Here, Belcher is dissatisfied that the court imposed the presumptively appropriate prison term (see Pen. Code, § 1170, subd. (b)), the middle term, because the middle term had been imposed and stayed, not because it found aggravating factors balanced mitigating factors. She is thus arguing that the reason for imposition of the middle term was improper. Having not objected when the term was imposed or when it was executed, she cannot object for the first time on appeal.
In any case, a remand for resentencing is unnecessary when it is reasonably possible that the defendant would have received the same sentence absent the error. (People v. Avalos (1984) 37 Cal.3d 216, 233.) Here, the initial probation report stated the crime was aggravated by Belcher being on probation when she sold the cocaine base and mitigated by her desire to provide necessities for her family and early guilty plea. It is reasonably probable the court would have imposed the middle term if it had not erred.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J. and HALLER, J. --------------- Notes: Because Belcher entered a guilty plea, we need not recite the facts underlying the conviction. (See Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.)