Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Carol Koppel, Judge. Los Angeles County Super. Ct. No. MA011420. Affirmed.
Richard J. Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Defendant and appellant Clarence Jones contends that a remand is necessary because he was sentenced without the benefit of having counsel present and because the trial court imposed sentence without stating reasons for its discretionary sentencing choices. The claims are without merit. Defendant did have counsel. And the court stated its reasons for its sentencing choices at defendant’s original sentencing hearing in 1996. We therefore affirm the judgment.
BACKGROUND
I. Defendant’s 1996 conviction and the subsequent appellate proceedings.
In 1996, a jury convicted defendant of carjacking under Penal Code section 215, subd. (a) (count 1), second degree robbery under section 211 (count 2), and of grand theft vehicle under section 487h, subd. (a) (count 3). The trial court sentenced defendant to 28 years in prison, as follows: “count 1/carjacking (§ 215(a) – 18 years (the upper term of nine years, doubled), plus three years for the deadly weapon use enhancement (§ 12022(b)(2)); count 2/robbery (§ 211) – two years (double the one-third mid-term sentence of three years). In addition, the court imposed a term of five years for the serious felony prior conviction (§ 667(a)(1)). On count 3/grand theft vehicle (§ 487h, subd. (a)) the court stayed the sentence without first imposing any sentence. On counts 2 and 3 the court selected and stayed one year for each section 12022(b)(1) enhancement allegation. (§ 1170.1, subd. (a).)” (People v. Jones, supra, B110539, fn. omitted.)
All further undesignated statutory references are to the Penal Code.
The facts underlying defendant’s offenses are not relevant to this appeal, and we therefore do not repeat them here. They are set forth in People v. Jones (Aug. 21, 1998, B110539 [nonpub. opn.]).
In People v. Jones, supra, B110539, we affirmed the judgment, but we remanded based only on the trial judge’s failure to orally pronounce sentence on count 3 and on the weapon enhancements as to counts 2 and 3. We said, “The failure to properly sentence on count [3] and on the enhancements on counts 2 and 3 was error. . . . [W]e remand for the trial court to orally pronounce sentence to that extent . . . .” (People v. Jones, supra, B110539.)
Pursuant to the remand, the trial court on February 26, 2001, held a second sentencing hearing at which defendant was not present and resentenced him. Defendant then filed a petition in the superior court demanding to be present for resentencing, but the superior court denied the petition. Upon petition to this court, we issued an order notifying the superior court of our intent to issue a peremptory writ of mandate in the first instance directing it to order and to arrange transport of defendant to the Los Angeles Superior Court to hear the oral pronouncement of his sentence. (Clarence Jones v. Superior Court (Nov. 29, 2006, B192500.)
The trial court held the third sentencing hearing on January 4, 2007. Defendant was present at that hearing. The court again sentenced defendant to 28 years in prison.
DISCUSSION
I. Defendant was not denied his right to counsel at his sentencing hearing.
At his January 4, 2007 hearing, the trial court asked for appearances. The deputy district attorney stated her appearance. Although according to the minute order Lawrence Miller, a deputy public defender, had been representing defendant, David Houchin stated he was “appearing as a friend of the court” for defendant. Arguing that Mr. Houchin was acting more in the capacity of an amicus curiae rather than as counsel, defendant now contends his state and federal rights to effective assistance of counsel were violated. (See generally, Cal. Const. art. I, § 15; U.S. Const., 6th & 14th Amends.; see Anders v. California (1967) 386 U.S. 738, 744 [“The constitutional requirement . . . can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae”].) We reject defendant’s contention.
Notwithstanding Mr. Houchin’s technical characterization that he was appearing as “a friend of the court,” the substance of the hearing demonstrates he was appearing as defendant’s advocate and counsel. When the trial court asked if defendant waived arraignment for pronouncement of judgment, Mr. Houchin replied, “Yes.” When the court asked if there was any legal cause why sentence should not be pronounced, Mr. Houchin replied, “There is none.” Mr. Houchin also inquired as to defendant’s appellate rights, and Mr. Houchin and defendant conferred off the record twice during the brief hearing. Therefore, although Mr. Houchin described himself as a “friend of the court”—an albeit odd turn of phrase—the record is clear that he was appearing to, and did, represent defendant. No violation of defendant’s right to effective assistance of counsel occurred.
II. The trial court’s failure to restate the reasons for the sentence does not warrant a remand.
At the January 4, 2007 sentencing hearing, the trial court again sentenced defendant to 28 years in prison. The court pronounced sentence but did not state the reasons for its discretionary sentencing choices, namely, imposition of the upper term on count 1 and the consecutive sentences. Defendant now contends that he is entitled to another remand for resentencing. He is not.
“[D]efendant is ordered imprisoned in the state prison for a total of 28 years. . . . [T]he court selects two times the high term of nine years, which equals 18 years for the base term as to count 1 . . . plus three years pursuant to 12022(b) of the Penal Code. [¶] As to count 2, the court selects one third the mid term of three years . . . times two for a total of two years pursuant to sections 1170.1(a)/1170.12(e), pursuant to Penal Code section 654. [¶] As to count 3, the court selects one third the mid term times two for two years total pursuant to 1170.1(a), 1170.12(c)(1), which time is stayed pursuant to Penal Code section 654; the court selects the high term of five years as the enhancements pursuant to Penal Code section 667(a)(1), of the Penal Code[.] [A]s to counts 2, 3, the court selects the one year as to each enhancement allegation of which there is one on each count pursuant to 12022(b)(1) of the Penal Code which time is stayed as mandatory pursuant to section 1170.1(a) of the Penal Code.”
Defendant’s failure to object at the time to this lack of statement of reasons forfeits for appeal any error in such failure. (People v. Scott (1994) 9 Cal.4th 331, 356.) “[T]he statement of reasons is intended to facilitate review of sentencing decisions that otherwise rest within the sound discretion of the trial court. When that court errs in identifying or articulating its sentencing choices, the reviewing court has no choice but to remand the matter for resentencing unless it finds the error nonprejudicial, i.e., it is ‘not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.’ [Citation.]” (Id. at p. 355.)
Even if the issue was not forfeited, it has no substantive merit. It was unnecessary for the trial to state its reasons for the sentence for at least two reasons. First, the trial court stated reasons for its sentencing decision at the original sentencing hearing in 1996. The court said: “The court considered the following circumstances in aggravation: [¶] [The] crime[s] involved great violence. Threat of great bodily harm or other acts constituting a high degree of cruelty, viciousness or callousness. [¶] In this case, the defendant held a broken bottle to the throat of the victim in this case, and without provocation threatened to kill the victim. [¶] The manner in which the crime was carried out indicated planning, sophistication and professionalism. [¶] The defendant first approached the victim, asked him for money, and then came back a few minutes later and committed the robbery. The first contact was clearly to ascertain whether this was a proper victim, whether it would be – he would be able to carry out his objective without any problem, and then he did return later on. The victim was particularly vulnerable, was unarmed, did not speak English, or spoke very poor English. [¶] This defendant has engaged in a pattern of violent conduct which indicates he is a serious danger to society. His prior convictions as an adult and his adjudication as a juvenile are numerous and of increasing seriousness. He has served prior prison terms. His prior performance on probation and parole have been unsatisfactory. [¶] The defendant has indicated or demonstrated by his behavior, both in court during the trial and after the trial, that he is an extremely dangerous and violent person. He has engaged in violent conduct, and he is a serious danger to society. [¶] With regard to the circumstances in mitigation, there do not appear to be any. [¶] Taking each of the circumstances in aggravation, each by itself outweighs the lack of any mitigating circumstances. And thus the court does choose the high base term.” The court went on to impose sentence. Therefore, the court—albeit at the original sentencing hearing—did state the reasons for its sentencing choices.
The second reason why it was unnecessary for the trial court to restate the reasons for its sentencing choices at the January 4, 2007 hearing is that this court’s order remanding the case was for a limited purpose only. In People v. Jones, supra, B110539, we remanded only so that the court could orally pronounce sentence on count 3 and on the enhancements on counts 2 and 3. We did not remand for general resentencing. Indeed, we noted that the errors to be corrected on remand were “without penal consequence.” (Ibid.) Therefore, the remand did not implicate the imposition of the upper term on count 2 or of consecutive sentences. Similarly, our order in Clarence Jones v. Superior Court, supra, B192500, did not reopen sentencing. Rather, the purpose of our order was to permit defendant to be present at his sentencing hearing.
Defendant is therefore not entitled to a remand for resentencing.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.