Filed 5/16/17 P. v. Cooper CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD EVERETT COOPER,

Defendant and Appellant.

F073322

(Super. Ct. No. F14901767)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Jr., Judge.
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Keith P. Sager, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Richard Everett Cooper appeals a judgment entered after he pled no contest to numerous offenses arising from an accident he caused while riding a motorcycle under the influence of methamphetamine. He contends that the trial court erred under Penal Code section 1170, subdivision (c), by failing to state reasons for imposing consecutive terms with respect to five of his convictions and this error requires a remand for resentencing. We conclude that appellant’s failure to object to the court’s sentencing choices at the sentencing hearing forfeited his claim of error on appeal and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
One morning in February 2014, appellant, while riding a motorcycle with a female passenger on the back, fled when a police officer tried to conduct a traffic stop after observing appellant was not wearing a helmet. During his flight from the officer, appellant travelled at speeds between 50 to 80 miles per hour through several residential areas, passing an elementary school, and failing to stop at a red traffic light and several stop signs. After he drove through an intersection without stopping, a white truck struck appellant, causing appellant and his passenger to be thrown from the motorcycle. The passenger, who was 18-weeks pregnant at the time, suffered an injury to one of her legs, which later required amputation below the knee, but her fetus was unharmed in the accident. Appellant, who was initially uncooperative with police after the accident, had “a large fix blade knife” which “slid out from under him” before he was handcuffed and searched. The search of appellant revealed he had a stolen, loaded revolver under his shirt. Later toxicological testing indicated appellant had a “potentially toxic level” of methamphetamine in his system at the time of the accident.
On July 30, 2015, appellant pled no contest to all 12 felony counts and one misdemeanor count charged against him based on the February 2014 incident: driving under the influence of a drug causing injury (Veh. Code, § 23153, subd. (e); count 1); evading an officer causing injury (Veh. Code, § 2800.3, subd. (a); count 2); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3); concealed firearm in a vehicle (§ 25400, subd. (a)(1); count 4); concealed firearm on a person; (§ 25400, subd. (a)(2); count 5); carrying a loaded firearm in public (§ 25850, subd. (a); count 6); possession of ammunition by a person prohibited from owning a firearm (§ 30305, subd. (a)(1); count 7); possession of a firearm in a school zone (§ 626.9, subd. (b); count 8); carrying a concealed dirk or dagger (§ 21310; count 9); unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a); count 10); receiving stolen property (vehicle) (§ 496d, subd. (a); count 11); receiving stolen property (personal property) (§ 496, subd. (a); count 12); and driving when privilege suspended for a prior driving-under-the-influence conviction (Veh. Code, § 14601.2, subd. (a); count 13). He also admitted all sentence enhancement and prior conviction allegations, including that he personally inflicted great bodily injury on his motorcycle passenger (§ 12022.7, subd. (a)), and had suffered a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and three prior prison terms (§ 667.5, subd. (b).)
Appellant’s plea agreement included recognition that, as a direct consequence of his plea, he faced a maximum prison term of 34 years. It also recognized appellant’s understanding that the trial court was indicating a “15-year lid” and appellant had the right to withdraw his plea if the court failed to “follow through with that 15-year lid at sentencing.” It was also part of the court’s indicated sentence that it would grant a Romero motion to strike the prior strike conviction that was 29 years old which appellant had suffered as a juvenile.
On January 4, 2016, the probation officer filed a report, recommending sentencing appellant to a total term of 17 years as follows: the upper term of seven years on count 2, doubled for the prior strike conviction, plus three years for the three prison priors. The report further recommended imposing concurrent terms for counts 1, 3, 4, 7, 8, 9, 10, and 12, and staying, pursuant to section 654, the terms imposed for counts 5, 6, and 11.
At the January 4, 2016 sentencing hearing, the trial court granted appellant’s Romero motion to strike his prior strike conviction. It then sentenced him to a total prison term of 14 years four months as follows: the upper term of seven years for count 2, plus a one-year term for the great bodily injury enhancement, five consecutive eight-month terms (one-third the middle term) for counts 1, 3, 4, 7, and 10, and three consecutive one-year terms for the prison priors. Additionally, the court imposed a concurrent three-year term for count 8, a concurrent two-year term for count 9, and stayed the terms imposed for counts 5, 6, and 11.
DISCUSSION
On appeal, appellant contends that the trial court erred under section 1170, subdivision (c) by failing to state reasons for its imposition of consecutive terms for counts 1, 3, 4, 7, and 10, and that the error requires reversal of the sentence and a remand for resentencing. Appellant recognizes that his failure to object to the sentence below would ordinarily waive his claim of error on appeal. However, he argues the waiver rule is inapplicable because, “[a]part from stating it was going to strike the serious felony enhancement, the trial court never stated that it intended to deviate from the [probation report’s recommendation of concurrent terms]” before the court imposed sentence.
“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 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, 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.)
Appellant 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” (Gonzalez, at p. 752; italics omitted & added), 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).
“[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.” (Gonzalez, supra, 31 Cal.4th at p. 752, italics added, fn. omitted.)
Here, in contrast to Dorsey, supra, 50 Cal.App.4th 1216, the record indicates appellant and his counsel had more than one meaningful opportunity to object to his sentence, or to seek clarification if any of the court’s statements during sentencing were confusing or difficult to follow, as appellant now suggests they were. Indeed, during the pronouncement of judgment, the court paused to hold an off-the-record discussion, apparently in response to a question by defense counsel seeking clarification of the sentence the court had imposed for count 8. Moreover, instead of recessing the hearing, as the court did in Dorsey, the court, after imposing sentence on each of the counts, asked appellant, “Do you have any questions, sir?” The court then held another off-the-record discussion. When it returned on the record, the court reiterated that the “[t]otal term is 14 years, 4 months.”
There is simply nothing in the record of the sentencing hearing indicating appellant or his counsel was precluded from objecting to any aspect of appellant’s sentence, which was within the 15-year lid agreed on at the plea hearing, when he was facing a far longer potential term, and less than the total term recommended by the probation officer’s report. Under all these circumstances, we conclude appellant forfeited his appellate challenge to the court’s failure to state reasons for imposing consecutive terms for counts 1, 3, 4, 7, and 10.
DISPOSITION
The judgment is affirmed.