Opinion
F056019
7-7-2009
THE PEOPLE, Plaintiff and Respondent, v. ROLANDO REYNOSO, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
OPINION
THE COURT
Before Levy, Acting P.J., Gomes, J., and Dawson, J.
PROCEEDINGS
On March 11, 2008, an information was filed charging appellant, Rolando Reynoso, with one count of second degree robbery (Pen. Code, § 211). The information also alleged that appellant had a prior serious felony conviction or juvenile adjudication within the meaning of the three strikes law. On June 12, 2008, appellant entered into a plea bargain. Under the agreement, appellant would admit the allegations and would face a three-year lid. Appellant could also request that the court strike the prior serious felony allegation. The appellant waived his constitutional rights pursuant to Boykin/Tahl after the court advised him of his rights as well as the consequences of his plea.
Unless otherwise noted, all statutory references are to the Penal Code.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
The parties stipulated to a factual basis for the plea. Appellant pled no contest to the robbery allegation and admitted the prior serious felony conviction or juvenile adjudication. The probation officers report noted as aggravating factors that the offense involved the threat of great bodily harm, appellant was engaged in violent conduct indicating a serious danger to society, appellant was on parole when he reoffended, and appellants prior performance on probation or parole was unsatisfactory. The probation officer noted no mitigating circumstances. The probation officer recommended appellant be sentenced to the midterm of three years doubled to six years pursuant to the three strikes law.
Appellant executed a felony advisement, waiver of rights, and plea form acknowledging and waiving his constitutional rights and the consequences of his plea. Appellant further acknowledged he would admit the robbery allegation and the strike prior with a three-year lid on his sentence.
At the sentencing hearing on August 6, 2008, the court denied a Marsden motion appellant brought on July 24, 2008. Defense counsel argued appellant wanted the two-year offer initially made at the early stages of the proceedings. Counsel noted the point had been discussed during the July 24, 2008, Marsden hearing and in chambers just prior to the sentencing hearing. Counsel then argued appellant was still young, had two children, was married, and was working. Defense counsel argued appellant should receive the low term of two years. The prosecutor argued appellant had absconded from parole and that the midterm of three years was an appropriate sentence.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Prior to the preliminary hearing, there was a two-year plea offer to appellant that was set to expire on February 20, 2008. The offer expired without appellant accepting it. The gist of the Marsden motion was a claim by appellant that, at an early stage of the proceedings, he was offered a plea bargain for a two-year prison sentence. Appellant asserted his trial counsel at that time thought he could get a better deal, but appellant insisted that he always wanted the two-year offer.
The trial court noted it had read and considered the probation report as well as the preliminary hearing transcript. The court observed that appellant did not indicate during the preliminary hearing that he was willing to accept a two-year offer. The court stated there was substantial discussion in early June 2008 concerning a possible plea bargain with a three-year sentence. The court noted that during those discussions, appellant never brought up the two-year prison term offer made prior to the preliminary hearing.
The court stated it was standing by the sentence indicated during the change of plea hearing of three years. The court found appellant was a very young man and stated it would exercise its discretion under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike the prior serious felony adjudication. The court stated that if it did not strike the prior felony adjudication, it would result in a sentence that was "severe, unreasonable, and disproportionate." The court noted appellants last criminal adjudication was eight years earlier. The court stated that while it was a close call, the court was going to strike the prior adjudication. The court found "[t]hat in this case, the three-year [midterm] is the appropriate sentence."
FACTS
C. is 12 years old. On October 30, 2007, C. was in front of an elementary school in Fresno riding his skateboard. C. saw appellant walking toward him on the same sidewalk. As appellant was passing C., he pushed C. on C.s chest and hit C.s face with his other hand. As appellant hit C., he demanded that C. "[g]ive me your shit." C. stumbled off his skateboard into the street.
C. tried to get his skateboard, but appellant picked it up and then raised it as though he was going to hit C. C. was scared appellant was going to hit him. Appellant began chasing C. C. pulled out a phone and called the police. Appellant did not catch up to C. C. yelled for help and ran up to a residence.
Based on C.s description, the police apprehended appellant. C. confirmed appellants identification. Appellant initially claimed the skateboard was his. Appellant then voluntarily surrendered the skateboard and fled. He was apprehended about 20 minutes later.
DISCUSSION
Appellant contends the trial court erred in failing to state reasons for imposing the midterm sentence. We disagree and will affirm.
Section 1170, subdivisions (b) and (c) expressly state the trial court shall state the reasons for its sentencing choice. California Rules of Court, rules 4.406 and 4.420(e) require that the trial court state the reasons for its sentencing choice. In People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval), the Supreme Court noted that under the revised sentencing scheme, a trial court is required to state reasons for the term selected. The court noted, however, that the requirement in the former version of subdivision (e) of rule 4.420 that the court must "`include a concise statement of the ultimate facts that the court deemed to constitute circumstances in aggravation or mitigation" was no longer mandated. (Sandoval, supra, 41 Cal.4th at p. 847.)
References to California Rules of Court will hereinafter be referenced simply as the applicable rule.
Currently, subdivision (e) of rule 4.420 provides: "The reasons for selecting one of the three authorized prison terms referred to in section 1170(b) must be stated orally on the record."
In the instant action, the trial court made lengthy observations and findings concerning an earlier plea offer to appellant of two years in prison. That offer expired on February 20, 2008, without appellant accepting it. The court proceeded to find that appellant was a young man and had last offended eight years earlier. The court found that application of the three strikes law in appellants case would be severe, unreasonable, and disproportionate. The court exercised its discretion under Romero and section 1385 to strike the prior juvenile adjudication. The court then announced its finding that the three-year midterm was the appropriate sentence.
We find that the courts pronouncements satisfied the requirement that it state reasons for its sentencing choice. As the Supreme Court noted in Sandoval, the old requirement that the trial court state ultimate facts in selecting a sentence is no longer operative. Here, the court carefully considered and rejected a two-year term that had been an offer appellant did not accept during the early stages of the proceedings. It found mitigating factors not set forth in the probation report, appellants youth and the remoteness of the prior juvenile adjudication, while exercising its discretion under Romero to strike the prior juvenile adjudication. The court announced the midterm of three years was the proper sentence. We find the court complied with section 1170 and rule 4.420(e) and reject appellants assertions to the contrary.
There are two further reasons to reject appellants argument. First, appellants plea agreement included a sentence lid of three years. Appellant received precisely the sentence for which he bargained. Second, the record clearly demonstrates the trial court carefully considered appellants sentence. It is obvious that the court would impose the same sentence on remand. Where the trial court improperly imposes sentence upon a dual use of the same fact, no prejudice occurs in the resulting sentence where it is not reasonably probable that a more favorable sentence would have been imposed in absence of the error. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Even if we found the trial courts pronouncement of sentence failed to state adequate reasons, any error here would not be prejudicial.
The parties have not raised, and we do not decide this case on, the doctrine of forfeiture. (See People v. Scott (1994) 9 Cal.4th 331, 354.) We note that appellants trial counsel did not object to the courts statement of reasons for imposing a three-year prison term.
DISPOSITION
The judgment is affirmed.