Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR074721S
McGuiness, P.J.
Appellant James Dennis O’Hare appeals following revocation of his probation, contending the trial court erred by failing to state reasons for its decision to impose consecutive sentences. Because we conclude appellant waived the sentencing error by failing to object, we affirm the judgment.
Factual and Procedural Background
On January 25, 2008, appellant pleaded guilty to one count of driving under the influence of alcohol (DUI), with three prior offenses in the previous ten years (Veh. Code, §§ 23152, subd. (a), 23550), and one count of driving while his license was suspended (Veh. Code, § 14601.2, subd. (a).) The court suspended imposition of sentence and placed appellant on supervised probation for a period of five years.
A notice of probation violation filed on May 1, 2008, alleged that appellant had violated the terms of his probation by possessing and consuming alcohol, failing to report to his probation officer, and failing to comply with the probation officer’s instructions. It was alleged that appellant had an estimated blood alcohol content of 0.20 percent and displayed symptoms of alcohol intoxication when he was contacted by police officers at a motel in Walnut Creek on April 15, 2008. A search of appellant’s motel room incident to his arrest uncovered an empty 500 milliliter bottle of vodka along with another bottle of vodka that was two-thirds full. Appellant admitted he had violated the terms of his probation.
On August 29, 2008, the court referred appellant to the Department of Corrections and Rehabilitation for a 90-day diagnostic study pursuant to Penal Code section 1203.03. After receiving and reviewing the Penal Code section 1203.03 report, the court expressed its tentative ruling to deny probation at a hearing conducted on December 3, 2008. The court also stated its tentative ruling to impose an aggravated term of three years for the DUI conviction, pointing out that appellant had been on probation for two prior DUI offenses at the time of the current offense, had a total of seven DUI convictions over the years, had many opportunities to address the problem, and more recently had refused to participate in a treatment program.
The court then tentatively ruled it would impose concurrent sentences on the convictions for DUI and driving with a suspended license, as follows: “The next question would be whether to impose the sentence on the driving on a suspended license charge concurrently or consecutively. And while I think arguments could be made that it should be consecutive, the most compelling of those is probably so we can keep him off the streets for as long as possible. I think that’s in the benefit of society. However, I don’t think that is an appropriate basis to impose a consecutive term. I think that the offenses were committed at the same time, same location. They involve different violations, but it’s one-one in the same situation. So my tentative is to run those sentences concurrently.” At defense counsel’s request, sentencing was continued to allow counsel to submit additional materials.
The court sentenced appellant at the continued hearing on December 10, 2008. Before doing so, the court stated it was “not going to reiterate everything that [it had] said previously, ” but rather would incorporate its earlier comments. The court denied probation and sentenced appellant to serve six months in county jail for the misdemeanor conviction for driving with a suspended license. The court also sentenced appellant to serve the aggravated term of three years for the felony DUI conviction, announcing, “I have stated the reasons for that previously.” After discussing sentencing credits, the court stated, “That prison sentence is ordered to be served consecutive to the time on [the misdemeanor conviction], ” resulting in a total sentence of three years, six months. At the time it imposed consecutive sentences, the court did not state any reasons for the sentencing choice, did not refer to its discussion of the issue at an earlier sentencing hearing, and did not explain why it had decided not to adhere to its tentative ruling. Appellant’s trial counsel did not object to the imposition of consecutive sentences.
On April 6, 2009, nearly four months after appellant was sentenced, appellant’s counsel filed a motion requesting that the court recall and modify the sentence on its own motion pursuant to Penal Code section 1170, subdivision (d). In the motion, appellant argued it appeared the court had intended to impose concurrent sentences instead of consecutive sentences but had inadvertently used the word “consecutive” during sentencing.
At a hearing conducted on April 9, 2009, the court indicated it had read the reporter’s transcript. The court declined to “exercise [its] discretion and recall the sentence.” The court stated: “Back when I gave the tentative, initially, I specifically mentioned that there were arguments that could be made on both sides about whether it should be concurrent or consecutive. Included within the arguments about a consecutive sentence would be while they both involve driving, they involve different types of conduct. One is driving on a suspended license, obviously; the other is driving under the influence. And those are separate acts. So an argument could be made that they would be consecutive.”
Discussion
The selection of consecutive or concurrent sentences represents a “sentence choice” for which the court must give a statement of reasons at the time of sentencing. (Pen. Code, § 1170, subd. (c); Cal. Rules of Court, rules 4.406(b)(5), 4.425; People v. Coelho (2001) 89 Cal.App.4th 861, 886.) Appellant contends the court failed to give a statement of reasons supporting the imposition of consecutive sentences. According to appellant, the only statement of reasons offered by the court explained why concurrent sentences were appropriate.
The People assert the claim was forfeited because appellant failed to raise a contemporaneous objection at the sentencing hearing. The People also argue any error was harmless. We agree with both of these contentions.
A defendant who fails to object to a “trial court’s failure to properly make or articulate its discretionary sentencing choices” cannot raise the claim for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) “Included in this category are 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 state any reasons or give a sufficient number of valid reasons.” (Ibid., italics added.)
It is undisputed appellant failed to make a contemporaneous objection to the court’s imposition of consecutive sentences. Filing a motion requesting the court to recall the sentence on its own motion nearly four months after sentencing-while the case was already on appeal-does not correct the failure to object. Further, a defendant has no standing to seek recall of the sentence pursuant to Penal Code section 1170, subdivision (d). (See People v. Chlad (1992) 6 Cal.App.4th 1719, 1725.)
Because appellant had no standing to bring a motion to recall the sentence under Penal Code section 1170, subdivision (d), he likewise has no standing to appeal the denial of such a motion. (People v. Chlad, supra, 6 Cal.App.4th at pp. 1725-1726.)
Appellant contends the forfeiture rule is inapplicable because he was afforded no “meaningful opportunity to object” to the sentencing decision. (See Scott, supra, 9 Cal.4th at p. 356.) “This opportunity can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices.” (Ibid.) Appellant asserts he “had no meaningful opportunity to address the surprise switch” to consecutive sentences after the court had earlier informed the parties of its tentative decision to impose concurrent sentences. He suggests the court was required to give notice of its intended “last minute switch of sentence.”
A meaningful opportunity to object simply means that counsel has the opportunity to address the court on the sentencing issue involved. (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.) A court need not describe its sentencing choices as “ ‘tentative’ so long as it demonstrates a willingness to consider objections.” (People v. Gonzalez (2003) 31 Cal.4th 745, 752.) “It is only if the trial court fails to give the parties any meaningful opportunity to object that the Scott rule becomes inapplicable.” (Ibid.)
Here, appellant was plainly apprised of the court’s decision to impose consecutive sentences at the final sentencing hearing. In addition, after the court imposed consecutive sentences, it demonstrated a willingness to consider objections by asking both counsel if they had “anything further” to raise with the court. Appellant’s trial counsel did not object but instead stated, “Submitted.” Under the circumstances, we conclude appellant had a meaningful opportunity to object but failed to do so, thereby forfeiting the claim on appeal.
Even if appellant’s claim were properly raised on appeal, we would nonetheless conclude “it is ‘not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.’ [Citation.]” (Scott, supra, 9 Cal.4th at p. 355.) “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].” (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Here, that was at least one valid circumstance in aggravation justifying the consecutive sentences. Among other things, the court discussed its concerns that appellant’s drunken driving, and the likelihood that he would do it again, posed an extreme danger to the community. (Cf. Cal. Rules of Court, rule 4.421(b)(1).) Further, the crimes were predominantly independent of each other, a factor that by itself supports consecutive sentences. (Cal. Rules of Court, rule 4.425(a)(1); see In re Hayes (1969) 70 Cal.2d 604, 611 [driving with a suspended license and driving while intoxicated, even if done at the same time, are two distinct and separate criminal acts for which multiple punishment may be imposed].)
Moreover, there is no reason to believe the court would modify the sentence if we were to remand the matter. The brief hearing on appellant’s motion to recall the sentence provided a preview of the court’s views should the case be remanded. The court refused to recall the sentence in order to impose a lesser sentence, even though it had the power to do so under Penal Code section 1170, subdivision (d). The court also acknowledged the two crimes of which appellant was convicted involved different types of conduct and separate acts, thereby justifying consecutive sentences. Any error in failing to articulate the reasons for imposing consecutive sentences is therefore harmless.
Disposition
The judgment is affirmed.
We concur: Pollak, J., Jenkins, J.