Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE288531, Allan J. Preckel, Judge.
IRION, J.
On the day set for trial, Gregory P. Mims pled guilty to first degree residential burglary (Pen. Code, §§ 459/460) and admitted the truth of six prior prison term allegations (§ 667.5, subd. (b)), two prior serious felony conviction allegations (§ 667, subd. (a)(1)) and two strike prior allegations (§§ 667, subds. (b)-(i), 1170.12). The trial court found a factual basis for Mims's plea and admissions. It further found that Mims knowingly and voluntarily entered into the guilty plea, and accepted the plea.
All further statutory references are to the Penal Code.
Mims appeals, contending that in pronouncing sentence the trial court failed to adequately state its reasons for imposing the upper term on his residential burglary conviction. He requests that his sentence be reversed and the case remanded for resentencing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At sentencing on Mims's guilty plea, the trial court stated it had read and considered the various written submissions, and then heard from defense counsel, Mims and the district attorney. Thereafter, the trial court found Mims ineligible for probation, stating that even if it had some measure of discretion, it would deny probation based on the seriousness of Mims's present offense and his criminal history. The trial court stated it was sentencing Mims by setting the base term for residential burglary at the upper term of six years, doubled to 12 years for one of the two strike priors admitted by Mims, and was adding two 5 year terms for the prior serious felony enhancements, for a total aggregate prison term of 22 years. The court then exercised its discretion under section 1385, subdivision (a) and struck Mims's other admitted strike prior, and all six prison priors. In the course of exercising its discretion to strike the prison priors, the trial court said, "... I have taken my decision to strike what would otherwise be those additional enhancements. I've taken that into consideration as part of the rationale for determining that the base term on count 1 [residential burglary] is appropriately set at the upper term of six years." The court imposed the sentence, stating: "Accordingly, it is the judgment and sentence of the court that probation be denied, that Mr. Mims be committed to the Department of Corrections and Rehabilitation for the total term of 22 years, calculated as stated...." After awarding various credits and imposing various fines, the court asked defense counsel, "[A]nything further for the record on your client's behalf?" Defense counsel thanked the court, but did not make any objections.
DISCUSSION
On appeal, Mims claims that the trial court erred in failing to adequately state its reasons for imposition of the upper term on his residential burglary conviction. He claims the court's reference to the upper term when striking his six prior prison term allegations was insufficient to support an upper term sentence, as a court is required to state all of its reasons for a sentencing choice. The People respond that the claim is forfeited, and even if it were not, the trial court properly imposed the upper term sentencing choice. We agree.
"I've taken that into consideration as part of the rationale for determining that the base term on count 1 is appropriately set at the upper term...." (Italics added.)
"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." (People v. Gonzalez (2003) 31 Cal.4th 745, 751 (Gonzalez), citing People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) The Scott rule of forfeiture applies to cases, such as the present one, where it is asserted that the trial court failed to state a sufficient number of valid reasons for its sentencing choice. (Gonzalez, at p. 751.) The rationale for the rule is elementary: "[C]ounsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the sentencing hearing[, and r]outine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Scott, supra, 9 Cal.4th at p. 353.) As long as there is a meaningful opportunity for counsel to object to purported deficiencies in the trial court's statement of reasons for its sentence choices during the sentencing hearing, counsel's failure to do so waives any appellate claim of error. (Id. at p. 356.).
The waiver rule does not apply to legally unauthorized sentences, an exception not relevant here. (Scott, supra, 9 Cal.4th at p. 354.)
Mims asserts that Gonzalez, supra, 31 Cal.4th 745, 752, requires that counsel be given an opportunity to object before sentencing, or the Scott rule does not apply. We disagree. While Gonzalez stated that "parties are given an adequate opportunity to seek such clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing" (id., at p. 752), it clarified that "[i]t is only if the trial court fails to give the parties any meaningful opportunity to object that the Scott rule becomes inapplicable." (Ibid.) In expounding upon what it meant by failure to provide "any meaningful opportunity to object, " the Gonzalez court cited to People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216 (Dorsey). (Gonzalez, at p. 752, italics added.) "[In Dorsey, ] the trial court placed the defendant on probation in the 'interests of justice, ' even though he was presumptively ineligible. After asking the defendant if he accepted the terms of probation, the trial court immediately declared a recess without hearing from either party. Because of the immediate recess, the Court of Appeal held that 'the prosecutor had no opportunity, meaningful or otherwise, to object.' [Citation.] Accordingly, Dorsey correctly held that the prosecution could challenge the sentence on appeal." (Ibid., italics added.) That is not the situation presented here.
Here, the trial court announced its intended sentencing decision but, according to Mims, only gave "part of" its reasons for imposition of its upper term sentencing choice (see fn. 1, ante), and then pronounced judgment. However, instead of recessing the hearing, as did the court in Dorsey, the trial court explicitly asked defense counsel if he had anything further for the record on his client's behalf. Had counsel at that time objected that the court failed to adequately state its reasons for imposing the upper term sentence, the court could have recalled Mims's sentence and resentence him with a full explanation of its reasons for the choice made. (See § 1170, subd. (d); Dix v. Superior Court (1991) 53 Cal.3d 442, 460, 463.) Under these circumstances, an objection, even after pronouncement of judgment, would have served the purposes of the Scott forfeiture rule to prevent errors and preserve the judicial resources required to correct them. (Scott, supra, 9 Cal.4th at p. 354.) Accordingly, we determine Mims's appellate sentencing challenge forfeited.
Even if we were to address the merits of Mims's claim, we would not find any basis for reversal and remand for resentencing. In People v. Black (2007) 41 Cal.4th 799, 815-820, our Supreme Court held that remand for resentencing is unnecessary where the record shows that in imposing an upper term sentence the trial court relied on a single aggravating factor which meets constitutional standards, such as the defendant's criminal history. Here the record discloses that the court validly exercised its discretion to choose among its three sentencing choices under the amended determinate sentencing law (§ 1170, subd. (b)) by using as a circumstance in aggravation the fact of Mims's stricken prior prison terms. (See Cal. Rules of Court, rule 4.420(c) ["To comply with section 1170[, subdivision ](b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so."] & rule 4.421(b)(3) [fact that defendant served a prior prison term is an accepted sentencing circumstance in aggravation].) Accordingly, even were we to determine that the court failed to adequately state the reasons for its upper term sentencing choice, we would not reverse and remand for resentencing.
DISPOSTION
The judgment is affirmed.
WE CONCUR: McINTYRE, Acting P.J., O'ROURKE, J.