Opinion
H025303.
10-17-2003
THE PEOPLE, Plaintiff and Respondent, v. JILL RENEE DIEHL, Defendant and Appellant.
Defendant Jill Diehl has been convicted twice of petty theft with a prior (Pen. Code, § 666) by her pleas in two Santa Cruz County Superior Court cases, Nos. F03589 and F04790. In case No. F04790, she admitted serving a prior prison term (& sect; 667.5, subd. (b)) as the result of two convictions, one in 1998 of forging a prescription (Bus. & Prof. Code, § 4324, subd. (a)), the other in 1999 of possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The second petty theft (No. F04790) violated the probation granted after the first petty theft (No. F03589).
Unspecified section references are to the Penal Code.
In case No. F04790 she pleaded guilty to two misdemeanors that are irrelevant to this appeal.
The trial court imposed a total prison sentence of four years, eight months as follows: the upper term of three years for the second petty theft, enhanced by one year for the prior prison term, with eight consecutive months, one-third the midterm, for the first petty theft. The trial court suspended execution of this sentence and granted defendant probation. After defendant again violated probation, the court imposed this prison sentence.
On appeal defendant contends that the trial court erred in failing to state reasons for imposing the eight-month consecutive sentence or the one-year enhancement and that the trial court based its prison commitment on unreliable hearsay. For the reasons stated below, we will affirm the judgment.
PROCEEDINGS
A description of defendants crimes is irrelevant to her appellate contentions. We focus on the statements by the trial court at three different hearings.
On June 4, 2002, defendant pleaded guilty to the charges in the later case (No. F04790) and waived a probation report. At that hearing Judge Barton granted defendant formal probation after imposing and suspending execution of the sentence of four years, eight months. The court stated: "I will impose the upper term of four years.[] That is based upon your record and based upon the fact that you were on formal probation at the time" in case No. F03589. "I will impose the midterm of two years, which is — actually, Im sorry, one-third of the midterm for eight months consecutive to F04790, I will suspend, pending successful completion of probation. [¶] So, you will owe me four years, eight months in state prison." Defendant did not question the imposition of a consecutive sentence at this hearing.
The upper term for a petty theft with a prior is three years. Four years results from adding in the one-year prior prison term enhancement.
On October 17, 2002, Judge Kelley found defendant in violation of probation in both cases for failing to appear for drug testing as directed by the probation department.
On October 31, 2002, the court held a sentencing hearing in both cases. Defense counsel acknowledged that defendant "doesnt seem to get it, over and over again." Counsel argued for Delancey Street instead of prison. Counsel told Judge Kelley that "[y]ou already know a lot about her."
At the hearing the court decided the following. "On F04790 this will be a commitment to the Department of Corrections. The four-year prison term that was previously imposed is suspended [sic]. Three years as to Count 2, plus [sic] aggravated term, plus one year for the prior conviction, total of four, and one-third the middle term, or eight months, consecutive on F03589, for a total of four years, eight months." The court terminated probation in both cases.
Defense counsel asked the court "to reconsider one aspect of this. With regard to the aggravated term, I have some disagreement. It could be a middle term."
The court answered as follows. "You know, if I could give her more time, I would, I dont know how to do it.
"You know, never has one person consumed more resources with less result than you, Jill Diehl. You had drug court. You had everything available, and youve never 100 percent embraced it. I dont know what it is. You know, your entire life is a manipulation. You figure out how to get welfare. You figure out how to get all these services. Because Ive watched you over these years. You are always figuring out how you can get get get; but, you know, youve never given.
"Youve never given yourself a chance. You may partially embrace recovery at times, but its never been lasting; its never been meaningful. You figure out ways to get drugs into jail even times you turn in yourself. I know people who do.
"Your house becomes a crash pad for other people on 36. They bomb out and they come to see you. I had a gal here yesterday. She got in trouble because she came to your place. Youre out there undoing half the work Im doing in here. Youre like the anti-Christ of 36. You really have to get a grip on your life. Youve already been to prison before, and youre going to go again. Youre going to violate parole unless you finally embrace a total life-style change.
"Quit figuring out ways to get get get and use use use. This is a dead end. The amazing thing is youre not — that youre still on earth. I expect to see you in the obituaries every day I open the paper. Amazingly enough, somebody has a plan for you. Theyve kept you alive. I dont know what that plan is. Do you know what your plan is?"
After some discussion between defendant and the court, the court indicated that the credit calculation would be done another day. Defense counsel stated, "perhaps we can address this. You made your decision. You certainly expressed your reasons for the aggravated time, for not — to impose the prior, you have to state the reason." Judge Kelley responded, "Im trusting Judge Barton when he imposed it."
The parties mistakenly assume that this statement referred to imposition of the consecutive sentence.
The prosecutor indicated that defense counsel wanted to revisit the aggravated term determination. Defense counsel replied, "No. I wish to revisit the eight months that was made consecutive because theres no finding necessary to — to not do that." The court commented, "Well, the extensive history of criminality, the unsuccessful completion of various grants of probation all speak in favor of the aggravated term. This is aside from the prison prior. Im not using that as an aggravating fact." Defense counsel said he would submit it next time regarding the eight months.
It appears that Judge Kelley discussed the aggravated term because defense counsel and the prosecutor had just mentioned it, though defense counsels last point pertained to the consecutive sentence.
At the credit calculation hearing on November 8, 2002, the court announced, "I dont plan on changing my sentence." The court made the following statements. "Jill, youre going to have to find recovery on your own time. I think its important that you do this prison sentence as a deterrent for other people. For you it may not be the best thing, although it could be. But clearly, a message goes out to the other women in the program that you absolutely have to take responsibility. Youve had more chances. Youve had a lot of chances, quite a few chances; and it really disturbed me that your house became the place for other people to come to and get dirty.
"You had — Anna Montezuma was in here in tears, talking about her experience going to your place, losing her sobriety. We had Berebaums daughter at your place, also dirty after I released her from custody to give her a fresh start.
"Its — you know, its just like whatever Im doing here, youre undoing on the streets. Youve got to take a look at yourself. This is absolutely a deadend; and not only do you go down yourself, youre taking other people down with you."
Defendant responded, "Um, you know, I know — Ive known Anna for a long time, you know, and weve been in and out, and I know I take responsibility for my whole part in that. And like Michelle, Michelle was my best friend, you know; and I pray for her; and I hope the best for her; and we both knew like we were both staying clean there for awhile; and were both like kind of skeptical about being around each other, but, you know, I took responsibility for my part; and she should take responsibility for her part; and I hope the best for her; and its like, you know, some of those people didnt have places to stay. Id let them stay whether they were clean or not; and at that time, I really did try. I really did. And I apologize and I really hope the best for everybody, but Ive been to — done prison time and I really want to change."
Later during the hearing the court stated, "Im worried about I think the word will go forth that Jill Diehl went to prison, and shes well known in all the drug circles around town." "[Y]ou sentence people for three things. One is punishment; ones rehabilitation; the other one is deterrence. And the deterrence is the primary factor Im looking at here. Ive given you so many chances over the couple, three years weve worked together, and I just have to stop." Defendant acknowledged that Judge Kelley had sent her to prison before.
After the court calculated the credits due defendant, the court clerk mentioned that there were actually two prior prison terms. Defense counsel stated: "We have not come to a conclusion. Maybe you have, but I thought we were still discussing whether eight months needed to be imposed consecutively." The court responded to the clerks statement, "What Ill do is strike 1385, strike the second prison prior."
From the record of the prior hearing on June 4, 2002, it appears that defendant had one prison commitment arising from her two prior convictions.
1. THE REASONS FOR REVOKING SUSPENSION OF THE SENTENCE
On appeal defendant argues that she "was deprived of due process and a fair sentencing hearing by the trial courts reliance on unreliable hearsay information from other pending cases as a basis for his decision to send [defendant] to prison." Defendant asserts that the trial court relied on undisclosed information that defendant was a bad influence on other drug users.
A sentencing judge is entitled to rely on information that may be inadmissible at the guilt trial. (People v. Peterson (1973) 9 Cal.3d 717, 725.) For example, "courts routinely rely upon hearsay statements contained in probation reports to make factual findings concerning the details of the crime." (People v. Otto (2001) 26 Cal.4th 200, 212.)
People v. Lamb (1999) 76 Cal.App.4th 664 explained at page 683: "[A] sentencing court may consider a broad range of information in deciding whether to grant probation in a particular case. Due process does not require that a criminal defendant be afforded the same evidentiary protections at sentencing proceedings as exist at trial. (Williams v. New York (1949) 337 U.S. 241, 251; People v. Arbuckle (1978) 22 Cal.3d 749, 754.) A sentencing judge may consider responsible unsworn or out-of-court statements concerning the convicted persons life and characteristics. (Williams v. Oklahoma (1959) 358 U.S. 576, 584; People v. Arbuckle, supra, 22 Cal.3d at p. 754.) Fundamental fairness, however, requires that there be a substantial basis for believing the information is reliable. (People v. Arbuckle, supra, 22 Cal.3d at pp. 754-755.)"
A defendant who believes that the sentencing judge is relying on erroneous or otherwise unreliable information waives this issue on appeal by not making this objection at the time of sentencing. (People v. Welch (1993) 5 Cal.4th 228, 234-235; People v. Evans (1983) 141 Cal.App.3d 1019, 1021.)
In this case, defense counsel acknowledged that the trial judge knew a lot about defendant. In the absence of a probation report the trial judge disclosed his own knowledge of "the prior history and record of the person" (§ 1203, subd. (b)), including her involvement in the criminal troubles of others. The judge gave defendant opportunities to respond to his statements at two hearings. Defendant not only failed to object to the judges statements, she conceded her involvement with the specific individuals named by the trial judge.
Under these circumstances we conclude that defendant not only waived any appellate challenge to the information on which the trial judge relied, defendant conceded its reliability when given an opportunity to respond. We conclude that there was no deprivation of due process.
2. SENTENCING REASONS
On appeal defendant contends that she has never been given reasons for imposition of the eight-month consecutive sentence or the one-year enhancement. We agree, but we will explain that this does not warrant reversing the judgment.
Sentencing judges are required to state reasons for discretionary sentencing choices such as "(1) granting probation; [¶] (2) imposing a prison sentence and thereby denying probation; . . . [¶] (4) selecting a term other than the middle statutory term for either an offense or an enhancement; [¶] (5) imposing consecutive sentences." (Cal. Rules of Court, rule 4.406(b) ; cf. § 1170, subds. (b), (c); People v. Scott (1994) 9 Cal.4th 331, 349 (Scott).) The court should state the reasons at the time it is making its discretionary sentencing choices, even if execution of the sentence is to be suspended during probation. (Rule 4.433(c).)
Unspecified Rule references are to the California Rules of Court.
No statement of reasons is required for the virtually mandatory imposition of a one-year enhancement for a prior prison term. (& sect;§ 667.5, subd. (b), 1170.1, subd. (d); People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1553; People v. Peace (1980) 107 Cal.App.3d 996, 1002.) Sentencing courts are only required to state reasons for striking this enhancement. (People v. Jordan (1986) 42 Cal.3d 308, 314.)
Defendants sentence of four years, eight months was imposed on June 4, 2002 by Judge Barton, though he suspended its execution. At the time he explained that he was imposing the upper term for the second petty theft due to defendants record and the fact that she was on probation at the time. (See Rule 4.421(b)(2) & (4).) He did not give reasons for the discretionary choice of imposing eight months consecutive.
After a sentence has been imposed and suspended, the court has the "discretion, on revocation and termination of probation, either (1) to revoke the suspension of sentence and commit the probationer to prison for the term prescribed in the suspended sentence, or (2) to decline to revoke the suspension or to order confinement." (People v. Howard (1997) 16 Cal.4th 1081, 1094; italics in original.) The court does not have discretion to modify the previously imposed sentence. "If the court does order a prison commitment, however, both section 1203.2, subdivision (c), and rule 435(b)(2) consistently set forth the rule that the previously suspended judgment shall `be in full force and effect. " (Ibid.)
On October 31, 2002, Judge Kelley committed defendant to prison pursuant to the previously imposed sentence. When asked why defendant received the consecutive sentence, he replied, "Well, the extensive history of criminality, the unsuccessful completion of various grants of probation all speak in favor of the aggravated term. This is aside from the prison prior. Im not using that as an aggravating fact." We understand this statement to explain the aggravated term, not the consecutive sentence.
While the court gave no reasons for imposing the consecutive sentence, Judge Barton was not asked to explain this choice on June 4, 2002, when it was imposed. A defendant waives an appellate challenge to a discretionary sentence choice by not objecting when the choice is made at a sentencing hearing. (Scott, supra, 9 Cal.4th at p. 353; People v. Minder (1996) 46 Cal.App.4th 1784, 1790-1792.) This rule applies even though execution of the sentence is suspended. It is too late to object at a later hearing, here on October 31, 2002, when the suspended sentence is imposed. (People v. Chagolla (1984) 151 Cal.App.3d 1045, 1048; People v. Preyer (1985) 164 Cal.App.3d 568, 576.)
The reason for the waiver rule is that "[r]outine defects in the courts statement of reasons are easily prevented and corrected if called to the courts attention." (Scott, supra, 9 Cal.4th at p. 353.) Requiring a timely objection conserves judicial resources. (Ibid.)
Several types of aggravating factors may justify a consecutive sentence, except that the trial court cannot rely on a fact used to enhance the sentence or on a fact used to impose the upper term. (Rule 4.425(b); People v. Osband (1996) 13 Cal.4th 622, 728.) "Only a single aggravating factor is required to impose the upper term [citation], and the same is true of the choice to impose a consecutive sentence [citation]." (Id. at pp. 728-729.) Had defendant made a timely objection, "the court could have selected disparate facts from among those it recited to justify the imposition of . . . the upper term, and on this record we discern no reasonable probability that it would not have done so. Resentencing is not required." (Id. at p. 729.) We conclude that defendant was not prejudiced by his counsels failure to timely object to imposition of the consecutive sentence. (People v. Hester (2000) 22 Cal.4th 290, 296-297.)
Rule 4.425(b) provides: "Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except (i) a fact used to impose the upper term, (ii) a fact used to otherwise enhance the defendants prison sentence, and (iii) a fact that is an element of the crime shall not be used to impose consecutive sentences."
DISPOSITION
The judgment is affirmed.
WE CONCUR: WUNDERLICH, J., MIHARA, J.