Opinion
G057584
08-11-2020
THE PEOPLE, Plaintiff and Appellant, v. ALEXIS FUENTES, Defendant and Respondent.
Todd Spitzer, District Attorney, and David R. Gallivan, Deputy District Attorney, for Plaintiff and Appellant. William D. Farber, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17NF2197) OPINION Appeal from a judgment of the Superior Court of Orange County, Roger B. Robbins, Judge. Affirmed. Todd Spitzer, District Attorney, and David R. Gallivan, Deputy District Attorney, for Plaintiff and Appellant. William D. Farber, under appointment by the Court of Appeal, for Defendant and Respondent.
This is the second time the district attorney has asked us to review the trial court's compliance with Penal Code section 1385 in this case. In our first opinion, we agreed with the district attorney that the trial court's failure to state any reasons for dismissing respondent's sentence enhancements under section 1385 constituted reversible error, even though the prosecution never objected to the lack of stated reasons when the court issued its ruling. Now, the district attorney is challenging the sufficiency of the reasons the trial court gave on remand for dismissing the enhancements. However, unlike a challenge based on the lack of reasons, a challenge based on the sufficiency of reasons is subject to the forfeiture rule governing discretionary sentencing decisions. Because the prosecution did not object to the trial court's stated reasons on remand, the district attorney is barred from challenging their sufficiency on appeal. Therefore, we affirm the judgment.
All further statutory references are to the Penal Code. --------
PROCEDURAL BACKGROUND
The procedural history of this case is set forth in our prior opinion, which we incorporate by reference. (People v. Fuentes (Dec. 4, 2018, G055583) [nonpub. opn.] (Fuentes I).) As described in that opinion, the trial court sentenced respondent to three years in prison for unlawfully taking a vehicle. It also dismissed various sentence enhancements in the furtherance of justice pursuant to section 1385. Without providing any reasons for doing so, the court dismissed a gang enhancement under section 186.22, a prior strike enhancement under section 667, subdivisions (d) and (e)(1), and two prior prison term enhancements under section 667.5. As a result of the gang enhancement being dismissed, a prior serious felony enhancement under section 667, subdivision (a) was also dismissed, by operation of law. (Fuentes I, supra, at p. 2)
In Fuentes I, we reversed on the basis the trial court did not accompany its dismissal order with a statement of reasons, as required under section 1385. Respondent argued the prosecution forfeited its right to challenge the lack of reasons on appeal by failing to raise that issue at the time of sentencing. But we ruled the issue was reviewable without an objection because, while the decision to dismiss an enhancement is discretionary, the trial court has a mandatory duty to include a statement of reasons once it decides to exercise its authority to dismiss. (Fuentes I, supra, at pp. 2-5.) Therefore, we remanded the matter to the trial court to either set forth its reasons for dismissal on the record, or reconsider its decision and sentence respondent anew. (Id. at p. 5.)
The remand hearing was brief. From a substantive standpoint, it consisted of the following statements:
"[Defense Counsel]: I submitted the paperwork for the reasons that the court was striking the prior, the 667(a).
"The Court: Okay. [¶] Under the 1385 requirements now, on the matter of Alexis Fuentes, 17NF2197, the court has stricken the priors for sentencing purposes under 1385 due to the current offense not being a violent or serious felony. The current offense in the abstract is less serious than other felonies. There was no injury or threat of injury to the person in the current offense. The defendant acknowledged wrongdoing at an early stage of the criminal process.
"And the court has considered the general objectives of sentencing, including protection of society, punishment of the defendant, deterring the defendant from future [criminal] conduct and uniformity of sentencing."
Although the prosecutor was present, he did not say a word at the hearing. Nevertheless, as he did after the trial court's initial sentencing decision, the district attorney has appealed on the basis the trial court failed to comply with section 1385.
DISCUSSION
The district attorney contends the trial court's ruling violates section 1385 because the court relied on improper considerations and failed to provide a sufficient factual basis for dismissing respondent's enhancements. The district attorney also argues the case should be assigned to a different judge on remand because the trial court has manifested a deliberate intention to ignore the law respecting the proper application of section 1385.
We can understand the district attorney's frustration with the trial court's actions in this case; it is never easy to be on the losing side of a judicial ruling. But this is the second appeal in which the district attorney has asked us to review a claim he failed to raise in the trial court. While this failure did not prevent us from granting the district attorney relief in the first appeal, we cannot excuse his persistent failure to comply with the objection requirement, a bedrock principle of appellate procedure that is designed to promote fairness and preserve limited judicial resources. (See generally People v. Smith (2001) 24 Cal.4th 849, 852 [the objection requirement reduces both the number of errors committed in the first instance and the number of costly appeals brought on that basis].)
By its terms, section 1385 requires the trial court to state its reasons for dismissal "orally on the record." (§ 1385, subd. (a).) As our prior opinion makes clear, this statutory requirement is not subject to the forfeiture rule because it inures to the benefit of the public by ensuring judicial accountability in the sentencing process. Thus, if the trial court fails to give any reasons for a section 1385 dismissal order, reversal is compelled, even in the absence of an objection at the time of sentencing. (Fuentes I, supra, at pp. 4-5.)
In reaching this conclusion, we drew a distinction between the discretionary authority vested in courts to order a dismissal in the first place, and the mandatory duty to provide reasons for the dismissal, once that discretionary authority has been exercised. (See Fuentes I, supra, at p. 3.) This distinction is important for purposes of the forfeiture rule because while the rule does not apply when the court fails to provide any reasons for ordering a section 1385 dismissal (id. at pp. 3-5), a "timely objection on specific grounds" is required if the prosecution seeks to challenge the sufficiency of the trial court's reasons for exercising its discretion to dismiss under that section. (People v. Smith (1996) 50 Cal.App.4th 1194, 1200.)
Here, the district attorney's principal complaint has to do with the sufficiency of the trial court's reasons for exercising its discretion to dismiss respondent's sentence enhancements. In particular, the district attorney accuses the trial court of simply reciting a "checklist" of mitigating factors without applying them to the particular circumstances of respondent's case. In other words, he claims the trial court's statement of reasons was too conclusory. He also claims the court misconstrued the significance of certain factors and failed to consider other relevant considerations in rendering its decision.
However, "[a] party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial. [Citation.] The rule applies to '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 . . . give a sufficient number of valid reasons'. . . ." (People v. Gonzalez (2003) 31 Cal.4th 745, 751, quoting People v. Scott (1994) 9 Cal.4th 331, 353.)
In this case, the district attorney is challenging the manner in which the trial court made and articulated its discretionary decision to dismiss respondent's enhancements under section 1385. Although the district attorney does not dispute the trial court had the legal authority to dismiss the enhancements, he argues the court did so in a flawed manner. That challenge is barred by virtue of the prosecution's failure to object on that basis in the trial court. (People v. Scott, supra, 9 Cal.4th at p. 354.)
We want to be clear about this. Otherwise the district attorney may miss other opportunities to be heard on such challenges. As explained, the rule is different if the trial court fails to offer any reasons whatsoever for dismissing an enhancement under section 1385. In that situation, an objection is not required to preserve the issue for appellate review. (See Fuentes I, supra.) The district attorney invokes that rule in challenging the trial court's decision to dismiss respondent's gang enhancement. He contends that decision is reviewable on appeal without an objection because while the trial court referred to respondent's "priors" during its statement of decision, it did not mention the gang enhancement.
But although the court did not mention the gang enhancement by name, defense counsel alluded to it indirectly at the outset of the hearing by reminding the court that respondent was facing a prior serious felony enhancement under section 667, subdivision (a). The viability of that enhancement depended on the gang enhancement, because, as a matter of law, the prior serious felony enhancement could not be imposed if the gang enhancement were dismissed. So, when the court offered reasons for dismissing the enhancements related to respondent's "priors" in the first paragraph of its ruling, those reasons presumably extended to both the prior serious felony enhancement and the gang enhancement.
Assuming they did not, the statement of reasons the court provided in the second paragraph of its ruling was expansive enough to encompass the gang enhancement. Indeed, in that part of its ruling, the trial court broadly justified its dismissal order based on "the general objectives of sentencing, including protection of society, punishment of the defendant, deterring the defendant from future [criminal] conduct and uniformity of sentencing." Because the court did not tether those wide-ranging justifications to any particular enhancement, we interpret them as applying generally - or as respondent puts it, "globally" - to all of the enhancements it dismissed, including the gang enhancement.
As such, we see no reason to disturb the trial court's dismissal order. Even though the court's statement of reasons was not a model of clarity, the district attorney forfeited his right to challenge the sufficiency of those reasons on appeal by failing to object to them, and give the trial court the opportunity to respond to his complaints.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.