The PEOPLE, Plaintiff and Respondent, v. Clifford A. SCOTT, Defendant and Appellant.
Clifford Scott appeals from his jury convictions and sentence for 13 counts of performing lewd acts on a child under 14 years of age without force or fear (Pen.Code, § 288, subd. (a)) 2 and 1 count of performing a similar act by means of force or fear (§ 288, subd. (b)), committed while he occupied a position of special trust with the child (§ 1203.066, subd. (a)(9): counts 1, 3 through 13). On several different theories he claims the evidence was insufficient to support conviction on certain of the counts and claims various sentencing errors.3
We agree with his contention two of the counts were improperly “fragmented” from other counts, strike those convictions and affirm the judgment as modified. As to his sentencing contentions, we conclude he has waived any claim of judicial error concerning the consecutive and upper term sentences imposed, his claim of dual use is harmless error, and his section 654 claim has no merit.
FACTUAL AND PROCEDURAL BACKGROUND
Because all of Scott's contentions essentially involve arguments the facts are insufficient to support either conviction of an offense or a particular sentence, we follow the traditional pattern of stating the facts in a light most favorable to the judgment. (People v. Thomas (1992) 2 Cal.4th 489, 514, 7 Cal.Rptr.2d 199, 828 P.2d 101.)
Scott and his girlfriend Susan Carter, a frequent cocaine user, began living with each other in 1988. Because of her drug usage, Carter was incarcerated between June and September 1990. At that time, Scott became the principal caretaker for Carter's four children: Latoya M., then eleven years old; two other daughters, aged three and one; and a six-month-old son.
In April and May 1991, Scott was charged in amended and supplemental informations with two counts of molestation by force (counts 4 and 13) and ten counts of molestation without force stemming from incidents involving Latoya that commenced in the summer of 1990 through January 1991. With the exceptions of counts 2 and 14, all counts alleged Scott occupied a position of special trust with Latoya during the time the lewd acts were committed. Scott was also alleged to have suffered two out-of-state prior serious felony convictions (§ 667, subd. (a)) and an out-of-state prior prison term (§ 667.5, subd. (a)). The present charges were bifurcated from the priors for jury trial.
At the jury trial, Latoya testified Scott began sexually molesting her in July 1990. She recounted 10 separate incidents which gave rise to the 14 counts.
Counts 1 and 2 (July 1990: “penile/genital” contact and “breast/vaginal/buttocks fondling”) 4
As to these counts, Latoya testified that sometime in July 1990 she and her siblings were in Scott's bedroom watching television. She was wearing “regular” clothes. Scott instructed her to take her sisters and brother into the other bedroom and to return to his room. When she did, he told her to take off her clothes. Scott touched her breasts and buttocks and had sexual intercourse with her. When asked to define “sexual intercourse,” Latoya explained, “he [ ] stuck his private in mine.” When asked to explain “private,” Latoya circled the vaginal area on a nude female drawing and the genital area on a nude male drawing. She testified that when Scott finished moving and got off of her, she went into the bathroom and took a shower to wash the “white stuff” off her leg.
Count 3 (August 1990: “penile/genital” contact)
Latoya testified about a similar incident that occurred the following month. Again all four children were in Scott's bedroom watching television. Latoya was in her pajamas. When all three younger children fell asleep, Latoya moved them to their bedroom and returned to Scott, who had been drinking. He instructed her to remove her clothes and then had sex with her. Again when he was finished, she went to the bathroom and washed off.
Count 4 (August 1990: “penile/genital” contact)
The next incident occurred later in August. Latoya testified Scott put his “private” inside her “private” while they were lying on a brown blanket on the floor in his bedroom. Afterward he licked her “private” and told her it was going to feel good. Scott then told her he would kill her, her mother and sisters if she told anyone what he had been doing to her. She believed him and was frightened because she understood he had previously killed his own sister. She promised not to tell anyone.
Counts 5 and 6 (September 1990: “oral vaginal” and “penile/vaginal” contact)
Shortly before Carter was released from jail on September 10, Scott again had sex with Latoya and then licked her “private.” The incident again occurred on the brown blanket on the floor while the other children were asleep.5 Latoya showered afterwards to wash off the “white stuff.”
Count 7 (September 1990: “penile/vaginal” contact)
Later in September, Scott again had sex with Latoya and licked her. The incident occurred at night and Latoya was wearing her pajamas. On this occasion, Latoya's sisters and brother were staying with one of their aunts, which they did on occasion. Latoya explained that sometimes Scott would not permit her to accompany her sisters and brother, telling her aunts she was on restriction for misbehaving.
Counts 8 and 9 (October 1990: “penile/vaginal” and “oral vaginal” contact)
During the middle of October, Scott again had sex with Latoya. She testified he licked her before they had sex. The incident occurred in Latoya's room while her sisters and brother were asleep. When they were finished Scott again told Latoya he would kill her if she told anyone.
Count 10 (November 1990: “penile/vaginal” contact)
Again in November, Scott had sex with Latoya on the floor of his bedroom lying on top of the brown blanket. Latoya was wearing her pajamas. After they finished she took a shower to wash off the “white stuff.”
Count 11 (December 1990: “penile/vaginal” contact)
On the night of December 25, 1990, after various friends and relatives had left, Latoya's mother, sisters and brothers were asleep in their bedrooms. Scott approached Latoya in the kitchen, told her to get down on the floor and had sex with her. Latoya complied because she was afraid. After they finished she washed off and went to bed.
Count 12 (January 1991: “penile/vaginal” contact)
Early in the morning on New Year's Day, Scott told Latoya to come into his room where he had sex with her. Friends of Scott's who had spent the night were in the living room asleep. Afterwards she went to the bathroom to wash off and then went to bed.
Counts 13 and 14 (January 1991: “penile/vaginal” contact and “breast/buttocks fondling”)
The final incident occurred on the evening of January 22. Latoya was in the living room with her sisters and brother when Scott began pulling her hair and pushing one of her sisters on top of her. When Latoya began to cry, Scott told her to go into his room. After the younger children went to bed, Scott came into the room. He fondled Latoya and they had sex. After Latoya washed off, Scott told her to get back into bed where they both fell asleep.
Early the next morning Carter returned home and discovered her daughter Latoya in bed with Scott. She took her into another room and asked for an explanation. After some prodding Latoya admitted what had been going on. Carter called the police and Scott was arrested. One of the arresting officers testified that while sitting in the back of a police car, Scott appeared to be talking to himself and twice said, “All this time and she says something now.”
The jury found Scott guilty on all counts as charged with the exception of count 4, as to which it convicted him of the lesser included offense of molestation without force, and found he occupied a special trust with Latoya as alleged.
Scott then admitted the truth of the alleged priors. After denying Scott's motion for a new trial, the trial court sentenced Scott to a total 44–year prison term. Scott timely appealed from the judgment.
ISufficiency of the Evidence *
After reading and considering the probation officer's report, the statements in aggravation and in mitigation, and hearing argument from counsel, the trial court found Scott ineligible for probation due to the jury's findings he occupied a position of special trust with Latoya when he committed the acts of sexual conduct. The court then noted it found it difficult to find any mitigating factors, but gave Scott the benefit of having had “a successful period of adjustment to parole.” However, the court found this factor was far outweighed by any of the aggravating factors.
In determining the upper term was appropriate the court stated:
“[T]he fact that this case involves threats of great bodily harm on more than one occasion not only to the victim but to do something to the mother and the siblings of the victim, I think, illustrates that this offense is beyond the elements contained in [section 288, subdivisions (a) and (b) ] and, under [California Rules of Court, rule 421(a)(1) ],10 is a matter in aggravation. [¶] In addition, under [rule] 421(b)(1), you've engaged in violent conduct which indicates that you are a serious danger to society by abusing a child to whom you were not related. In addition to that, your prior convictions as an adult are numerous and more increasing. These matters in aggravation far outweigh any in mitigation. Therefore, the upper term is warranted.”
The court then determined the terms should be run consecutively to each other for the following reasons:
“Under [rule] 425(a)(1), the crimes and their objectives were predominately [sic ] independent of each other and each act created a distinct and separate degradation and humiliation of this little girl. Under [rule] 425(a)(2), the case involves separate acts of violence or threats of violence to the victim as well as to her immediate family. [¶] In addition to that, the crimes were committed at different times and separate places rather than being committed so close in time as to indicate a single period of aberrant behavior. This under rule 425(a)(3).”
The trial court imposed a total 44–year term, breaking that term down using count 1 as the base upper term for the “reasons previously stated.” The court then imposed the remaining upper terms (counts 2 through 14) consecutively, stating at the end that “[a]s to each count, the sentence imposed, for the reasons earlier stated, is to run consecutive to that period of imprisonment previously imposed in the preceding count.” The court then added five years for each prior serious felony conviction.
The trial court in imposing sentence did not specify the applicability of any particular rule of court to the imposition of the upper term for any particular count, or for running a specific count consecutive. Rather it lumped all the rules together for imposing the upper and consecutive terms, respectively, on all counts. At the end of its recitation of sentence, the trial court asked counsel if there was anything further regarding the term imposed before advising Scott of his appellate rights. No further comments were made and defense counsel did not interpose any objections to the sentence as imposed.
Scott's opening appellate brief contends the trial court erred in sentencing him to aggravated and consecutive sentences. He specifically argues the court erred by not staying counts 2, 6, 9, and 14 under section 654 because they were all part of a continuing course of conduct with counts 1, 5, 8, and 13; erred when it imposed consecutive rather than concurrent terms for counts 1 and 2, 5 and 6, 8 and 9, and 13 and 14 as they were not independent of one another; erred when it used “separate acts or threats of violence” to both impose consecutive and aggravated terms (dual use); erred in imposing upper terms based on his having engaged in violent conduct by abusing a child not related to him which indicated he was a serious danger to society; erred in imposing upper terms relying on his prior convictions as an adult as having been “numerous and ever increasing,” while at the same time using his only two previous offenses for enhancement of his sentence; and erred in imposing the upper terms where there was only one possible aggravating factor to be balanced with the mitigating factor he had successful performance on parole which mandated the imposition of a middle term.
At oral argument on this matter, we asked Scott's counsel whether Scott had waived any sentencing errors on appeal because of his trial counsel's failure to object to any such error below. As neither party had briefed the issue, we thereafter entertained supplemental briefing concerning the issue.
Subsequently, on July 9, 1993, we vacated our previous order of submission and invited the parties to submit additional letter briefing in light of the recent California Supreme Court decision in People v. Welch (1993) 5 Cal.4th 228, 19 Cal.Rptr.2d 520, 851 P.2d 802, which held the failure to timely challenge a probation condition in the trial court on grounds it was unreasonable or inappropriate waived the claim on appeal. (Id. at p. 237, 19 Cal.Rptr.2d 520, 851 P.2d 802.)
Having reviewed the supplemental briefing and case law on the issue, we conclude Scott's failure to object to the trial court's statement of reasons for imposing the upper terms and the consecutive sentences in this case precludes his raising claims of error which do not challenge “unauthorized” sentences, or terms imposed which exceeded the trial court's jurisdiction.11 We explain.
Although the California Supreme Court has not directly addressed the issue of waiver as it applies to the failure to state reasonable or adequate reasons for a sentence choice, it has emphatically set forth the general rules applicable to preserving claims of error on appeal (People v. Saunders (1993) 5 Cal.4th 580, 589–590, 20 Cal.Rptr.2d 638, 853 P.2d 1093), and has applied these rules in the context of sentencing issues concerning probation and restitution. (See People v. Welch, supra, 5 Cal.4th 228, 19 Cal.Rptr.2d 520, 851 P.2d 802; People v. Walker (1991) 54 Cal.3d 1013, 1022–1023, 1 Cal.Rptr.2d 902, 819 P.2d 861; and People v. Chi Ko Wong (1976) 18 Cal.3d 698, 725, 135 Cal.Rptr. 392, 557 P.2d 976, overruled on another ground in People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.) Those rules, and their justification, bear repeating:
“ ‘ “An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method․ The circumstances may involve such intentional acts or acquiesence as to be appropriately classified under the headings of estoppel or waiver․ Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” ’ [Citation.] ‘ “The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had․” ’ [Citation.] ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation.] [¶] ‘The rationale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal.App. 603 at page 610 [204 P. 33] ․: “ ‘In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.’ ” ' [Citation.]” (People v. Saunders, supra, 5 Cal.4th at pp. 590–591, 20 Cal.Rptr.2d 638, 853 P.2d 1093, original italics, fn. omitted.)
In Chi Ko Wong, the Supreme Court held a failure to object to errors in a probation report at the sentencing hearing precluded those issues from being raised on appeal. (People v. Chi Ko Wong, supra, 18 Cal.3d at p. 725, 135 Cal.Rptr. 392, 557 P.2d 976.)
In Walker, the Supreme Court applied the waiver rule to a restitution fine imposed at the time of sentencing, stressing that because defense counsel was familiar with the probation report which disclosed the matter of the fine, and could have easily alerted the trial court to any error concerning it so that it could have been “ ‘corrected or avoided[,]’ ” the matter had been waived absent a timely objection. (People v. Walker, supra, 54 Cal.3d at pp. 1022–1023, 1 Cal.Rptr.2d 902, 819 P.2d 861; accord, People v. Melton (1990) 218 Cal.App.3d 1406, 1409, 267 Cal.Rptr. 640.)
In Welch, our Supreme Court applied the general “waiver” rule to foreclose the defendant from raising on appeal the issue a particular probation condition was inappropriate as she had not objected to it in the trial court. (People v. Welch, supra, 5 Cal.4th at pp. 235–237, 19 Cal.Rptr.2d 520, 851 P.2d 802.) In doing so, the Supreme Court stated:
“It is settled that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal. [Citations.] No different rule should generally apply to probation conditions under consideration at the same time. A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. The parties must, of course, be given a reasonable opportunity to present any relevant argument and evidence. A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis. [Citations.]” (People v. Welch, supra, 5 Cal.4th at pp. 234–235, fn. omitted, 19 Cal.Rptr.2d 520, 851 P.2d 802.)
In arriving at its holding, the court in Welch recognized the sentencing court's broad discretion to determine whether a defendant is suitable for probation and what conditions should be imposed. (People v. Welch, supra, 5 Cal.4th at p. 233, 19 Cal.Rptr.2d 520, 851 P.2d 802.) The court noted the statutory scheme for probation consideration (§§ 1203–1204, which require a presentence investigation and report that is available to the court and parties within a specified time before sentencing and require a hearing about the report and its recommendations, and permit the taking of additional evidence) “obviously contemplates that all issues relevant to the probation determination will be litigated in the sentencing court.” (Id. at p. 234, 19 Cal.Rptr.2d 520, 851 P.2d 802.)
Certainly, the reasoning of Welch, Walker, and Chi Ko Wong apply directly to other sentencing matters wherein the trial court is given broad discretion in its choices of sentence based on information contained in the required presentence report that is by the time of the sentencing hearing familiar to defense counsel. A timely objection to a sentence choice or the reasons therefore would permit the court to modify or delete a reason found unacceptable to the defendant.
Scott asserts Welch, which furthers the rationales of Walker and Chi Ko Wong, is inapplicable here where the trial court's statement of allegedly invalid reasons for upper and consecutive terms arguably results in his suffering an “unauthorized sentence.” Scott, however, does not appreciate the distinction between truly “unauthorized” sentences which are in excess of the trial court's jurisdiction, or void on the face of the record (see People v. Karaman (1992) 4 Cal.4th 335, 345–346, fn. 11, 14 Cal.Rptr.2d 801, 842 P.2d 100), and those which are merely so-called “unauthorized” because the factors in support of a permissible and lawful sentence have not been properly stated on the record. (See People v. Montalvo (1982) 128 Cal.App.3d 57, 63–64, 183 Cal.Rptr. 242, explaining the difference between unauthorized custody credits and those that were judicially incorrectly computed credits.)
In Welch, the defendant had similarly argued as Scott does here the improper probation condition rendered her sentence “unauthorized.” (People v. Welch, supra, 5 Cal.4th at p. 235, 19 Cal.Rptr.2d 520, 851 P.2d 802.) In response to this contention, the Supreme Court stated:
“Whatever precise meaning the ‘unauthorized sentence’ and ‘excess of jurisdiction’ concepts may have in determining whether claims are waivable on appeal or cognizable on habeas corpus, the authorities cited by defendant do not support her position. These cases generally involve pure questions of law that can be resolved without reference to the particular sentencing report developed in the trial court. (In re Ricky H.  30 Cal.3d 176, 190–193 [178 Cal.Rptr. 324, 636 P.2d 13] [failure to characterize offense and apply permissible term of confinement]; In re Sandel  64 Cal.2d 412, 418 [50 Cal.Rptr. 462, 412 P.2d 806] [violation of statute mandating consecutive terms for escape]; People v. Irvin (1991) 230 Cal.App.3d 180, 192–193 [281 Cal.Rptr. 195] [failure to strike or impose enhancement]; People v. Skeirik (1991) 229 Cal.App.3d 444, 468 [280 Cal.Rptr. 175] [erroneous imposition of determinate terms]; People v. Baylor (1989) 207 Cal.App.3d 232, 235–236 [255 Cal.Rptr. 172] [erroneous stay of sentence]; People v. Levell (1988) 201 Cal.App.3d 749, 751 [247 Cal.Rptr. 489] [applicability of enhancement]; People v. White (1981) 117 Cal.App.3d 270, 278–279 [172 Cal.Rptr. 612] [alleged dual use of aggravating fact and nonuse of mitigating fact]; People v. Salazar (1980) 108 Cal.App.3d 992, 1000–1001 & fn. 4 [167 Cal.Rptr. 38] [failure to state reasons for prison term].) Implicit in each of these decisions is the reviewing court's unwillingness to ignore clear and correctable legal error, particularly where the defendant might otherwise spend too much or too little time in custody. [Citation.] [¶] Defendant's claim of ‘unreasonable’ probation conditions presents far different considerations. Despite some attempt to cast her contentions in various per se, ‘jurisdictional,’ and ‘fundamental’ terms, she essentially argues only that the court exercised its otherwise lawful authority in an erroneous manner under the particular facts. As previously explained, probation conditions are rarely invalidated on this basis, and the appellate court is not best suited to determining how such an outcome might affect the defendant's suitability for probation. Traditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.” (People v. Welch, supra, 5 Cal.4th at pp. 235–236, 19 Cal.Rptr.2d 520, 851 P.2d 802, italics added.)
Using the analysis of Welch, we can find no distinction between the trial court exercising its discretion to impose an invalid condition of probation and the court exercising its discretion to impose an upper or consecutive term based on invalid reasons. When a trial court decides to send a defendant to prison, it has the discretion to choose among three terms for each offense and, where there are multiple offenses, it also has the discretion to choose between running the terms imposed for the multiple counts to be served either concurrently or consecutively. In each situation if an error is made it is made by the trial court while exercising “its otherwise lawful authority in an erroneous manner under the particular facts” of that case. Moreover, each discretionary decision is made depending upon the particular sentencing record developed in the trial court. Thus each decision, like that in Welch, regardless of whether it is erroneous, is within the trial court's jurisdiction to make.
As the appellate court in People v. Neal (1993) 19 Cal.App.4th 1114, 24 Cal.Rptr.2d 129 recently noted in holding a “defense counsel's failure to have objected to the failure to state reasons for the sentence choice precludes this specific issue from being raised on appeal [id. at p. 1117, 24 Cal.Rptr.2d 129]”:
“[T]he Supreme Court has made it abundantly clear[, however,] that certain kinds of sentencing errors need not be the subject of an objection.12 For example, no objection need be interposed in the event a sentence is violative of section 654 because it impermissibly punishes the same act twice. (People v. Perez (1979) 23 Cal.3d 545, 549–550, fn. 3 [153 Cal.Rptr. 40, 591 P.2d 63].) ․ [S]entencing errors which go to the jurisdiction of the court, such as a violation of section 654, can be raised at any time by either the prosecution or the defense even though no objection was interposed in the trial court. [Citation.] This is because a sentence which is not authorized by law exceeds the jurisdiction of the court.” (People v. Neal, supra, 19 Cal.App.4th at p. 1120, 24 Cal.Rptr.2d 129, fn. added.)
It therefore follows that matters which do not go to the jurisdiction of the trial court, or that are not legally void on the face of the record (People v. Karaman, supra, 14 Cal.4th at pp. 345–346, fn. 11, 14 Cal.Rptr.2d 801, 842 P.2d 100), are authorized and may be waived if not timely raised at the trial court level.
Thus the consecutive terms imposed here, as those that were imposed in Neal, were authorized under section 1170.1, subdivision (a) and “cannot logically be characterized as being in excess of jurisdiction.” (People v. Neal, supra, 19 Cal.App.4th at p. 1120, 24 Cal.Rptr.2d at p. 129.)
Likewise, the upper terms imposed here were authorized by sections 288 and 1170, subdivision (b). (See People v. Olken (1981) 125 Cal.App.3d 1064, 1067, 178 Cal.Rptr. 497.) In Olken, the appellate court addressed whether the failure to state reasons for an aggravated term was an unauthorized sentence or in excess of the trial court's jurisdiction. In finding it was not, the court stated:
“A ‘defendant must demonstrate more than mere legal error or irregularities in the trial court's proceedings; he must show that the trial court exceeded its jurisdiction in some manner. [Citations.]’ [Citation.] The manner in which the trial court here pronounced judgment constituted the only judicial error [citation]. The sentence itself was authorized by law. [Citations.] Consequently, the court did not exceed its jurisdiction in imposing it. [Citations.]” (People v. Olken, supra, 125 Cal.App.3d at p. 1067, 178 Cal.Rptr. 497, original italics.)
Although Scott is challenging the particular reasons on which the court here based its decision and not the mere failure to state reasons as in Neal and Olken, we can discern no reasonable difference between a challenge to a court imposing “authorized” upper or consecutive terms without a statement of reasons from one challenging the given reasons as unreasonable or inadequate for such “authorized” choices.13
We find further support for this position in In re Harris (1993) 5 Cal.4th 813, 21 Cal.Rptr.2d 373, 855 P.2d 391. Although Harris dealt with the issues of waiver and excess of jurisdiction in the context of a habeas corpus petition, its reasoning is instructive. In defining the concept of “excess of jurisdiction,” the Supreme Court stated:
“As we explained in In re Zerbe (1964) 60 Cal.2d 666 [36 Cal.Rptr. 286, 388 P.2d 182]: ‘Habeas corpus is available in cases where the court has acted in excess of its jurisdiction. [Citations.] For purposes of [the writ of habeas corpus], the term “jurisdiction” is not limited to its fundamental meaning, and in such proceedings judicial acts may be restrained or annulled if determined to be in excess of the court's powers as defined by constitutional provision, statute, or rules developed by courts.’ (Id. at pp. 667–668 [36 Cal.Rptr. 286, 388 P.2d 182].) This view is consistent with the statutory scheme governing habeas corpus, which provides that a prisoner may be discharged from custody ‘When the jurisdiction of [the committing] court ․ has been exceeded.’ (§ 1487, subd. 1, italics added.) [¶] This aspect of habeas corpus jurisprudence has been invoked in the past by this court to review claims that a criminal defendant was sentenced to serve an illegal sentence. Thus, for example, where a defendant was sentenced to an indeterminate term when the law provided for a determinate term, habeas corpus was available. (In re Lee (1918) 177 Cal. 690 [171 P. 958].) The writ was likewise available to review a claim that the sentencing court acted in excess of its jurisdiction by imposing a sentence on the petitioner that was longer than that permitted by law. [Citations.] [¶] ․ [¶] We again involved this rule in a case in which a habeas corpus petitioner claimed two enhancement provisions were improperly applied to lengthen his overall sentence. (In re Harris (1989) 49 Cal.3d 131 [260 Cal.Rptr. 288, 775 P.2d 1057].) Although the petitioner [there] had raised the issue unsuccessfully on direct appeal, we ruled he was entitled to renew the claim on habeas corpus because a misinterpretation of the penal statute would result in a longer sentence than was permitted by law, and imposition of the sentence was therefore in excess of the trial court's jurisdiction. [Citation.] [¶] Thus, ․ ‘[f]undamental jurisdictional defects [i.e., acts in excess of jurisdiction], like constitutional defects, do not become irremediable when a judgment of conviction becomes final, even after affirmance on appeal.’ [Citation, italics deleted, fn. omitted.]” (In re Harris, supra, 5 Cal.4th at pp. 838–840, 21 Cal.Rptr.2d 373, 855 P.2d 391.)
The court in Harris, however, clarified the “excess of jurisdiction” exception for claiming error without an objection at the trial court level was a narrow one, and stated:
“A rule providing for the postappeal review of legal issues that requires an appellate court to reopen factual issues already sifted, evaluated, and decided at trial both poses a significant threat to the legal repose of such judgments, and threatens to consume scarce judicial resources needlessly. In such cases, the states's interest in the finality of its judgments is strong. By contrast, where such review does not require a redetermination of the facts, and thus poses a strictly legal issue, the state's interest is reduced. In such circumstances, an individual's interest in obtaining judicial review of an allegedly illegal sentence cannot be ignored. [¶] In sum, we reiterate that a claim a court acted in excess of its jurisdiction, where such issue was raised and rejected on direct appeal (or could have been raised on appeal) may be entertained ․, provided a redetermination of the facts underlying the claim is unnecessary.” (In re Harris, supra, 5 Cal.4th at pp. 840–841, 21 Cal.Rptr.2d 373, 855 P.2d 391, italics added.)
Further, in finding that the waiver rule did not apply in Harris, the Supreme Court distinguished Harris from Chi Ko Wong (supra, 18 Cal.3d at p. 716, 135 Cal.Rptr. 392, 557 P.2d 976) where the defendant merely raised ordinary “garden-variety evidentiary” (inflammatory hearsay statements were introduced against him at the fitness hearing) and “familiar procedural” (the referee failed to state his reasons for finding him unfit) challenges to the certification order in that case. (In re Harris, supra, 5 Cal.4th at pp. 842–843, 21 Cal.Rptr.2d 373, 855 P.2d 391.) The Supreme Court found neither challenge by Chi Ko Wong rose to the fundamental level of the “excess of jurisdiction” claim asserted by Harris. (Id. at p. 843, 21 Cal.Rptr.2d 373, 855 P.2d 391.) The court stated:
“In short, the petitioner in Chi Ko Wong challenged the correctness of the fitness determination, but did not dispute his eligibility to be tried as an adult. Petitioner Harris, by contrast, challenges his eligibility for the entire fitness determination process.” (In re Harris, supra, 5 Cal.4th at p. 843, 21 Cal.Rptr.2d 373, 855 P.2d 391, original italics.)
By analogy to Harris, in claiming error in the trial court's statement of reasons for imposing the upper and consecutive terms in this case, Scott is challenging the “correctness” of those determinations on “garden-variety evidentiary” and “ordinary procedural” laments, the review of which would require redetermination of the facts presented in the probation report and at the sentencing hearing. Scott's claims of error are thus not the same type of “strictly legal issue” recognized by the Supreme Court in Harris or in Welch as being in excess of jurisdiction and always correctable, and are waived on this appeal.
We are well aware our views on the sentencing waiver issue are not uniformly held. As pointed out by the court in Neal, there is an existing contrary line of authority holding it is not necessary to interpose an objection to preserve an appellate issue about a trial court's failure to state reasons for a particular sentence. (People v. Neal, supra, 19 Cal.App.4th at pp. 1121 & 1124, fn. 7, 24 Cal.Rptr.2d 129.) Citing these contrary authorities, Scott asserts they represent the “settled law” in California regarding the issue of the inapplicability of the waiver doctrine to errors made in violation of the sentencing statutes or rules. We do not find the law settled, nor the contrary authorities persuasive or binding. The contrary line of cases, commencing with People v. Ramos (1980) 106 Cal.App.3d 591, 598, fn. 1, 165 Cal.Rptr. 179, and going up through People v. Wortman (1992) 11 Cal.App.4th 650, 653, 14 Cal.Rptr.2d 223,14 reject the waiver doctrine for sentencing issues with little or no analysis and we decline to follow them. We choose instead to follow the reasoning from our Supreme Court and the other existing Courts of Appeal cases discussed above which support the use of the general waiver rule for issues involving “authorized” sentences.
Moreover, because there has long existed a split in authority on the waiver of such sentencing issues as Scott's challenge to the applicability of certain factors for aggravating or consecutive terms and no uniform rule has yet emerged, our holding does not present a new rule of law which would be unfair to apply. Contrary to the new rule of law announced in Welch regarding the reasonableness of the probation condition imposed there (People v. Welch, supra, 5 Cal.4th at pp. 237–238, 19 Cal.Rptr.2d 520, 851 P.2d 802), substantive law in existence at the time of Scott's sentencing fully supported the necessity of defense counsel objecting to any perceived incorrect factors being stated for the imposition of an upper or consecutive term. (See In re Harris, supra, 5 Cal.4th at p. 841, 21 Cal.Rptr.2d 373, 855 P.2d 391.) 15
Nor are we persuaded, or afraid, that our holding Scott has waived the right to raise issues concerning the reasons for his upper and consecutive terms will result in an increased number of habeas corpus petitions asserting ineffective assistance of counsel for failure to so object. (See People v. Wortman, supra, 11 Cal.App.4th at p. 653, 14 Cal.Rptr.2d 223.) A claim of ineffective assistance of counsel regarding sentencing issues, as with other trial issues, is not new. (See People v. Cropper (1979) 89 Cal.App.3d 716, 719–720, 152 Cal.Rptr. 555.) To reason that recognition of the application of the general waiver doctrine to sentencing issues would open the floodgates to more appeals or petitions for habeas corpus based on claims of ineffective counsel simply has no logic; otherwise such argument would have essentially prohibited the application of the waiver doctrine to all aspects of a criminal trial.
Our conclusion Scott has waived certain sentencing issues, however, does not fully address all of his sentencing contentions. As noted earlier, Scott makes several section 654 claims of error and contends the trial court committed clear legal error in violation of section 1170, subdivision (b)'s proscription against “dual-use-of-facts.” Because the record reflects on its face that the trial court did indeed use the same fact to aggravate and to run consecutively Scott's terms (“each involved violence or the threat of violence”) and also that it used the same fact to impose the upper term and to impose two prior serious felony enhancements (“prior convictions are numerous or of increasing seriousness”), we find these issues cognizable on appeal even though Scott failed to raise objections below; such plain “dual use” violations render his sentence “unauthorized” under our reasoning above. Likewise, his section 654 issues are cognizable on this appeal.
Turning to these issues, we first conclude, notwithstanding the prohibited dual use of the same facts for enhancing his sentence twice by both imposing upper and consecutive terms and adding enhancements, it is not reasonably probable the trial court in this case would have sentenced Scott differently. (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243; People v. Dozier (1979) 90 Cal.App.3d 174, 179, 153 Cal.Rptr. 53.) While the record shows the trial court only recited three factors for its imposition of the upper term, two of which we find improper as dual use violations, leaving only one valid factor (that Scott was engaging in violent conduct during the continuing child molestations of a child not related to him which indicated a serious danger to society) 16 to be weighed against Scott's one mitigating factor, the sentencing record reflects the court reluctantly acknowledged that mitigating factor and other valid circumstances were available to support the imposition of the upper terms. In particular, the trial court specifically found as a factor to deny probation, the fact the jury found Scott occupied a position of trust with the child during the ongoing molestations. This factor alone could have easily been used to support imposition of the aggravated terms in this case without constituting a dual-use-of-facts. (People v. Burg (1981) 120 Cal.App.3d 304, 174 Cal.Rptr. 491.) Clearly this factor together with the valid factor found by the court at sentencing outweighs the one mitigating factor. Thus, in light of the record, we find the dual use error harmless. (People v. Watson, supra, 46 Cal.2d 818, 299 P.2d 243.)
Addressing Scott's section 654 contentions,17 we initially note because we have already determined the convictions for counts 2 and 14 must be stricken and consequently the punishment for those counts stricken, no section 654 claims concerning counts 1 and 13 remain. Further, if section 654 applies to preclude multiple punishment, the trial court may not even impose concurrent terms. (People v. Miller (1977) 18 Cal.3d 873, 886, 135 Cal.Rptr. 654, 558 P.2d 552.)
Section 654's 18 test against multiple punishment, as originally set forth in Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839, and recently reaffirmed in People v. Latimer (1993) 5 Cal.4th 1203, 23 Cal.Rptr.2d 144, 858 P.2d 611, states:
“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California, supra, 55 Cal.2d at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839.)
Our Supreme Court in People v. Perez (1979) 23 Cal.3d 545, 552, 153 Cal.Rptr. 40, 591 P.2d 63, however, limited the Neal rule as it applies to cases involving multiple sex acts, finding the general intent or objective to obtain sexual gratification was “much too broad and amorphous to determine the applicability of section 654.” Thus the Supreme Court in Perez concluded each separate criminal sexual act may be punished where none of the sex acts had been committed as a means of committing any other. (Id. at pp. 551–554, 153 Cal.Rptr. 40, 591 P.2d 63.) This limitation was reaffirmed in People v. Harrison (1989) 48 Cal.3d 321, 334–338, 256 Cal.Rptr. 401, 768 P.2d 1078, where the Supreme Court found numerous acts of penetration were multiple sex crimes each having the separate objective of achieving additional sexual gratification. Although the Supreme Court in Harrison continued to recognize that “if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once” (id. at p. 335, 256 Cal.Rptr. 401, 768 P.2d 1078), it stated:
“If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison, supra, 48 Cal.3d at p. 335, 256 Cal.Rptr. 401, 768 P.2d 1078.)
In reviewing section 654 contentions, appellate courts uphold a trial court's sentencing rulings on the factual issues concerning the application of section 654 if there is any substantial evidence to support them. (People v. Porter (1987) 194 Cal.App.3d 34, 38, 239 Cal.Rptr. 269; see also People v. Ferguson (1969) 1 Cal.App.3d 68, 74, 81 Cal.Rptr. 418.)
In applying section 654 analysis here, we conclude no prohibited multiple punishment occurred. After being alerted by the probation report to a possible section 654 problem concerning the evidence to support separate punishment on certain counts, the sentencing judge, who had been the trial judge, specifically found each crime was independent of the other and “each created a distinct and separate degradation and humiliation of [Latoya].” Impliedly, the court thus found the so-called “defined acts” of counts 5, 6, 8 and 9 to which Latoya had testified—violations of section 288 which also constituted violations of other penal statutes (i.e., §§ 261.5 [rape] and 288a, subd. (b) [oral copulation] )—were committed with multiple objectives and were not merely incidental to each other, although counts 5 and 8 arguably were committed as part of otherwise indivisible respective courses of conduct with counts 6 and 9. Under the reasoning of Harrison, these implied findings are fully supported by the record.
The judgment is modified to strike the convictions on counts 2 and 14. As modified, the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment (reflecting no sentence for the stricken counts and to thus reflect a total term of 40 years) and to forward it to the appropriate authorities.
The defendant in this case, Clifford Scott, committed a reprehensible series of crimes involving Latoya M. I fully concur in the majority opinion to the extent it affirms his convictions. But the reprehensibility of a defendant's conduct in a particular case does not eliminate our responsibility to articulate and apply rules of law which are fair to defendants in all cases. Here the majority opinion holds that Scott waived his challenge to the sufficiency of the trial court's reasons for choosing upper and consecutive sentence terms.1 In creating such a rule, the majority profess to tolerate the possibility that some criminal defendants will spend a longer period of time in prison than is supported by the record because their trial counsel failed to raise an objection at the sentencing hearing. From this portion of the majority opinion I dissent.2
Despite the majority's efforts in citing a host of cases, the rule they propose is completely unsupported by precedent. Substantively, the rule is fundamentally unfair in that a defendant's liberty interest is sacrificed due to an error of counsel. Finally, the procedural efficiency considerations which presumably motivate the majority are actually retarded rather than advanced by the decision. It does not eliminate work for the appellate courts, but merely repackages the issue in the form of an additional claim alleging ineffective assistance of counsel and justifying relief in virtually every instance. The result, I would suggest, is to litter the now-greased tracks of our appellate rail system with yet additional clutter.
The majority find support for their new rule in the Supreme Court's recent decision in People v. Welch (1993) 5 Cal.4th 228, 19 Cal.Rptr.2d 520, 851 P.2d 802, holding that a defendant must object at trial before challenging an invalid probation condition on appeal. They read Welch as a signal that any error which is not “jurisdictional” will be waived absent an objection in the trial court. Respectfully, Welch neither stands for nor suggests such a broad proposition. Significantly, the Supreme Court referred with apparent approval to an extensive list of cases in which the courts of appeal considered claims of sentencing error in the absence of an objection. (Id. at pp. 235–236, 19 Cal.Rptr.2d 520, 851 P.2d 802.) Included among them is People v. White (1981) 117 Cal.App.3d 270, 172 Cal.Rptr. 612 in which the court rejected the Attorney General's waiver argument in the context of a defendant's claim that the trial court's statement of reasons in support of its sentence choices were inadequate. (Id. at p. 279, 172 Cal.Rptr. 612.) The Supreme Court in Welch explained that “[i]mplicit in each of these decisions is the reviewing court's unwillingness to ignore clear and correctable legal error, particularly where the defendant might otherwise spend too much or too little time in custody.” (5 Cal.4th at p. 236, 19 Cal.Rptr.2d 520, 851 P.2d 802, emphasis added.)
Citing People v. Saunders (1993) 5 Cal.4th 580, 20 Cal.Rptr.2d 638, 853 P.2d 1093, the majority suggest that a waiver rule can be justified whenever the trial court's error is not “jurisdictional” because “it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at trial.” (Id. at p. 590, 20 Cal.Rptr.2d 638, 853 P.2d 1093, emphasis and internal quotes omitted.) The opinion then goes on to define “jurisdictional” errors and, concluding that the sentencing error claimed in this case is not jurisdictional, finds it waived by the failure of Scott's trial counsel to object.
In their search for a bright-line rule, the majority fail to appreciate the practical basis for the concept of waiver. Certainly unfairness and convenience are factors which would support a waiver rule, and they are particularly significant in civil cases where parties are expected to bear the burden of their counsel's failings. In criminal cases, however, where defendants are permitted to raise various errors even in the absence of an objection by counsel (e.g., Pen.Code, §§ 1176, 1259 [instructional error is never waived] ), obviously more is involved than mere inconvenience or a generalized perception of unfairness to the trial court.
It seems to me a “waiver” or “forfeiture” rule in criminal cases is warranted in one or possibly two types of situations. It is clearly justified where the possibility of reversal in the absence of an objection would encourage a defendant to remain deliberately silent hoping for a favorable decision at the trial level but preserving the basis for a successful appeal. This is the reason for the rule requiring an objection to preserve a claim of evidentiary error. (See Evid.Code, § 353; see also People v. Chi Ko Wong (1976) 18 Cal.3d 698, 724–725, 135 Cal.Rptr. 392, 557 P.2d 976, overruled on another ground in People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468 [validity of evidence included in probation report must be disputed at time of sentencing].) In a slightly modified fashion it also supports the recent decision in People v. Welch, supra, 5 Cal.4th 228, 19 Cal.Rptr.2d 520, 851 P.2d 802 in which the Supreme Court held that a defendant must object at trial before challenging an invalid probation condition on appeal. The court expressed concern that were the rule otherwise, a defendant might frustrate the trial court's legitimate discretion by remaining silent in order to obtain probation and then challenging the condition on appeal which would leave probation without the condition intact.3 (See also People v. Walker (1991) 54 Cal.3d 1013, 1024–1026, 1 Cal.Rptr.2d 902, 819 P.2d 861 [because trial court has discretion not to approve a plea bargain, defendant must object if court attempts to impose previously unmentioned restitution fine].)
A waiver rule may also be justified where the significance of the defendant's interest in challenging the error is outweighed by the significant efficiencies which will accrue if the challenge is not permitted. A portion of the Supreme Court's decision in People v. Walker, supra, 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861 is arguably based on this rationale. In Walker, the court held that in the case of a nonnegotiated guilty plea, the defendant waives any objection to the imposition of a restitution fine of which he or she was not advised prior to the plea if the issue is not raised at or before the time of sentencing. The court noted that withdrawal of a plea based on an incomplete advisement of consequences requires a showing of prejudice. (Id. at pp. 1022–1023, 1 Cal.Rptr.2d 902, 819 P.2d 861.) It emphasized the ease with which such a determination could be made if raised at the time of sentencing. (Id. at p. 1023, 1 Cal.Rptr.2d 902, 819 P.2d 861.) Inferentially as well, the effect on a defendant's property interests of being required to pay a fine is not nearly as significant as the effect on his or her liberty interests of serving a prison term. In this regard the court noted that an unadvised but monetarily minimal fine would rarely if ever be prejudicial. (Id. at p. 1023, 1 Cal.Rptr.2d 902, 819 P.2d 861.)
The sentencing error raised by Scott in this case does not fall into either of these two categories. Scott argues that the reasons specified by the trial court fail to support the imposition of the upper term and consecutive sentences on at least certain of the counts. (See post, p. 518, fn. 5.) This is not a situation in which the defendant stands to gain anything by failing to object in the trial court. Unlike a case of evidentiary error at trial, there was no possible favorable outcome which Scott might hope to achieve after the court expressed its intention to impose consecutive upper terms. Nor does resolution of a legal sufficiency claim require a redetermination of facts. Unlike Welch and Walker, Scott's silence can in no way deprive the trial court of its opportunity to exercise its discretion. Scott's remedy, if he were successful, is a remand for resentencing. Finally, the efficiencies to be achieved are not, in the big picture, significant. A new sentencing hearing on remand is not particularly time consuming. Balanced against that is Scott's liberty interest which could be seriously impaired if waiver of his claim results in his spending substantially more time in prison than is warranted.
More importantly, the majority's analysis glosses over a critical issue. The opinion relies significantly on the recent decision in People v. Neal (1993) 19 Cal.App.4th 1114, 24 Cal.Rptr.2d 129 which held that lack of an objection waived any claim that the trial court erred in failing to specify reasons to support the imposition of consecutive sentences. It cites Neal principally for the proposition that the imposition of consecutive sentences here “cannot logically be characterized as being in excess of jurisdiction.” (Id. at p. 1120, 24 Cal.Rptr.2d 129; see maj. opn., ante, p. 509.) Recognizing that Neal involves a somewhat different issue—the lack of a statement of reasons rather than the insufficiency of the stated reasons—the majority dismiss the distinction by noting, “[W]e can discern no reasonable difference between a challenge to a court imposing ‘authorized’ upper or consecutive terms without a statement of reasons from one challenging the given reasons as unreasonable or inadequate for such ‘authorized’ choices.” (Maj. opn., ante, p. 509.) 4
Apparently, however, the Neal court found the distinction significant. Distinguishing the case of People v. White, supra, 117 Cal.App.3d at p. 279, 172 Cal.Rptr. 612 (which considered a challenge to the sufficiency of the reasons articulated by the trial judge), Neal explains, “The Court of Appeal [in White] rejected the waiver argument, quite obviously because issues of sufficiency of the evidence are never waived, ․” (Id. at p. 1122, 24 Cal.Rptr.2d 129.) Focused exclusively on the concept of “jurisdictional” error, the majority inexplicably fail to confront the fact that not a single case has applied a waiver rule to a sufficiency-of-the-reasons challenge and the most recent case supportive of the waiver concept (Neal) expressly states that a challenge to the sufficiency of sentencing reasons may still be raised even in the absence of an objection in the trial court.
The incorrectness of the majority's decision is only matched by its harshness. In People v. Wortman (1992) 11 Cal.App.4th 650, 14 Cal.Rptr.2d 223, Division Two of this court refused to create a waiver rule applicable to a defendant's contention that the trial court's statement of reasons was inadequate. Although expressing some philosophical sympathy for the waiver concept, the court cited an unbroken line of prior contrary decisions and concluded that the People's argument for change “is better addressed to the Supreme Court or the Legislature, in light of the consistent application of the rule since the inception of the determinate sentencing scheme.” (Id. at pp. 652–653, 14 Cal.Rptr.2d 223, emphasis added.) Not only do my colleagues ignore what I believe is the prudent judgment call made by the Wortman court to leave this issue to the Supreme Court and the Legislature (I would note that the Supreme Court denied the Attorney General's petition for review in Wortman without dissent), they go on to apply their novel approach to the defendant in this case despite the fact that the sentencing hearing took place a year and a half before the court in Wortman observed that the refusal to apply a waiver rule was “consistent.” Even were I to agree with the majority's substantive analysis, I would conclude as did the Supreme Court in Welch that a waiver rule should not apply to any defendant whose sentencing hearing occurred before the decision in this case because a “defendant should not be penalized for failing to object where existing law overwhelmingly said no such objection was required.” (5 Cal.4th at p. 238, 19 Cal.Rptr.2d 520, 851 P.2d 802.)
I have explained why I believe there is no persuasive rationale for applying a waiver or forfeiture rule in the context of claims by a criminal defendant that the trial court's statement of reasons in support of a particular sentence choice is inadequate. The majority's premise—that some criminal defendants should spend more time in prison than is justified by the record because of a need for procedural efficiency—I find astonishing, unsupported by any precedent and impliedly inconsistent with the Supreme Court's statements in Welch. I have noted the consistency of application of a contrary rule in prior cases and how even the cases on which the majority rely expressly decline to apply the waiver concept in the context of challenges to the sufficiency of the trial court's statement of reasons.
The majority's decision is also counterproductive even to the interests of procedural efficiency they seek to advance. Where a defendant's appellate counsel identifies an issue regarding the adequacy of the trial court's statement of reasons but determines that trial counsel failed to object at the time of sentencing, I submit that appellate counsel is necessarily obligated to argue ineffective assistance of trial counsel, either as part of the appeal as counsel has done here or in a companion petition for writ of habeas corpus. I also believe the appellate court must necessarily conclude that trial counsel was ineffective. Unlike a case of a trial court's failure to state any reasons, where it could at least be argued that an objection would merely have allowed the court to correct its error, I can conceive of no tactical purpose in failing to object to a judge's articulation of inadequate reasons to support a sentencing choice. If I am correct, the majority's decision has merely transferred the same issue from one heading of the appeal to another, or from a simpler direct procedural context to a more complex collateral one. The only real losers in this transfer are the harried public defenders and other defense counsel whose competence will be called into question. (See Bus. & Prof.Code, § 6086.7, subd. (b).) While I take some solace in the fact that, as a practical matter, few if any defendants will spend too much time in prison as a result of the majority's decision, I seriously question what has been achieved other than to make the appellate process more cumbersome and more expensive.
Scott has raised issues concerning the sufficiency of the reasons articulated by the trial court to support the imposition of upper and consecutive terms. As I explain in greater detail below, the contentions are in part meritorious.5 The majority depart from a consistent line of prior cases to adopt a waiver rule, failing to appreciate that the rationales which support the concept of waiver have no application in the context of this case. Applied to Scott, the majority's rule purports to require that he serve a substantially longer prison term than is warranted by the trial court record. Such a conclusion is inconsistent with even the guiding Supreme Court precedent which the majority seek to extend. I predict, however, that any effect of this sort is illusory because of the inevitable ineffective assistance claim which necessarily follows. Indeed, if a waiver rule is to be the law, I am prepared to conclude that counsel was necessarily ineffective in failing to object to the trial court's statement of reasons. Accordingly, I would affirm the judgment as modified and remand for resentencing.
2. All statutory references are to the Penal Code.
3. By way of supplemental brief (letter dated Oct. 14, 1993), Scott also raises the issue of the constitutionality of CALJIC No. 2.90, the California jury instruction on the presumption of innocence and proof beyond a reasonable doubt. Relying on the United States Supreme Court's recent grant of certiorari in Sandoval v. California (1993) 509 U.S. 954, 114 S.Ct. 40, 125 L.Ed.2d 789, to decide whether the definition of “reasonable doubt” in CALJIC No. 2.90 is valid under the due process clause of the United States Constitution, Scott argues the use of that instruction in his trial requires reversal because he was denied due process of law by being convicted based on “moral certainty” rather than “evidentiary certainty.” (See Cage v. Louisiana (1990) 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339.)However, as Scott acknowledges, the California Supreme Court has already determined CALJIC No. 2.90 is constitutional in People v. Johnson (1992) 3 Cal.4th 1183, 1234–1235, 14 Cal.Rptr.2d 702, 842 P.2d 1 and People v. Jennings (1991) 53 Cal.3d 334, 385–386, 279 Cal.Rptr. 780, 807 P.2d 1009, and we are bound by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454, 20 Cal.Rptr. 321, 369 P.2d 937 to follow those precedents.
4. The nature of the acts alleged in the information is specified in the heading which precedes the discussion of the incident.
5. Latoya testified inconsistently on direct and cross-examination that the September incident occurred either in Scott and her mother's bedroom or her bedroom.
FOOTNOTE. See footnote 1, ante.
10. All rule references are to the California Rules of Court.
11. Contrary to Scott's argument he has preserved any sentencing challenge by filing a statement in mitigation requesting the court only impose the middle term and concurrent sentences for his convictions, his mitigating statement did not challenge any of the reasons stated for the imposition of upper or consecutive terms listed in the Probation Officer's Report prepared for the sentencing hearing in this case. Rather it merely argued insufficiency of the medical evidence to show penetration for the acts of intercourse found by the jury and the possibility the jury panel had been poisoned by public statements concerning molestation charges in general. These matters were raised in his motion for new trial which was denied before the sentencing hearing commenced.
12. That unauthorized sentencing errors are not subject to waiver and are correctable whenever they are discovered is well settled. (See People v. Serrato (1973) 9 Cal.3d 753, 763, 109 Cal.Rptr. 65, 512 P.2d 289, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144; In re Sandel (1966) 64 Cal.2d 412, 50 Cal.Rptr. 462, 412 P.2d 806.)
13. Further, as noted in Neal, numerous courts have recognized the general waiver rule applies to “non-jurisdictional” or “authorized” sentencing errors. (People v. Neal, supra, 19 Cal.App.4th at pp. 1122–1123, 24 Cal.Rptr.2d 129; i.e., regarding errors in restitution: People v. Foster (1993) 14 Cal.App.4th 939, 944, 18 Cal.Rptr.2d 1; People v. DeFilippis (1992) 9 Cal.App.4th 1876, 1879–1880, 12 Cal.Rptr.2d 431; People v. Zito (1992) 8 Cal.App.4th 736, 742, 10 Cal.Rptr.2d 491; People v. McMahan (1992) 3 Cal.App.4th 740, 750, 4 Cal.Rptr.2d 708; People v. Rivera (1989) 212 Cal.App.3d 1153, 1160, 261 Cal.Rptr. 93; People v. Keele (1986) 178 Cal.App.3d 701, 707–708, 224 Cal.Rptr. 32; regarding procedural defects in preparation of probation reports or their contents: People v. Jones (1992) 10 Cal.App.4th 1566, 1574, 14 Cal.Rptr.2d 9; People v. Begnaud (1991) 235 Cal.App.3d 1548, 1554–1555, 1 Cal.Rptr.2d 507; People v. Mockel (1990) 226 Cal.App.3d 581, 586–587, 276 Cal.Rptr. 559; People v. Goldstein (1990) 223 Cal.App.3d 465, 472, 272 Cal.Rptr. 881; People v. Evans (1983) 141 Cal.App.3d 1019, 1021, 190 Cal.Rptr. 633; People v. Jarvis (1982) 135 Cal.App.3d 154, 158, 185 Cal.Rptr. 16; People v. Santana (1982) 134 Cal.App.3d 773, 785, 184 Cal.Rptr. 733; People v. Ramirez (1980) 109 Cal.App.3d 529, 544, 167 Cal.Rptr. 174; People v. Betterton (1979) 93 Cal.App.3d 406, 414, 155 Cal.Rptr. 537; People v. Wagoner (1979) 89 Cal.App.3d 605, 616, 152 Cal.Rptr. 639; People v. Medina (1978) 78 Cal.App.3d 1000, 1006–1008, 144 Cal.Rptr. 581; People v. Girard (1971) 15 Cal.App.3d 1005, 1008, 93 Cal.Rptr. 676; regarding noncompliance with statutory requirements of time or notice: People v. Birmingham (1990) 217 Cal.App.3d 180, 183–184, 265 Cal.Rptr. 780; People v. Gann (1968) 259 Cal.App.2d 706, 716, 66 Cal.Rptr. 508; People v. Rocha (1955) 130 Cal.App.2d 656, 663, 279 P.2d 836; People v. Farber (1937) 19 Cal.App.2d 189, 193–194, 64 P.2d 1138; regarding other procedural matters: People v. Daly (1959) 168 Cal.App.2d 169, 173–174, 335 P.2d 503; regarding the constitutionality of a statute affecting matters at sentencing: People v. Walker (1968) 266 Cal.App.2d 562, 567, 72 Cal.Rptr. 224; and regarding the failure to make required statutory findings: People v. Peel (1993) 17 Cal.App.4th 594, 598–600, 21 Cal.Rptr.2d 449.)
14. Ramos, Wortman, People v. Robinson (1992) 11 Cal.App.4th 609, 616–617, 14 Cal.Rptr.2d 88, People v. Callahan (1983) 149 Cal.App.3d 1183, 1188, 198 Cal.Rptr. 12, People v. Lutes (1981) 117 Cal.App.3d 830, 832–833, 173 Cal.Rptr. 300, People v. Jones (1980) 111 Cal.App.3d 597, 604–605, 169 Cal.Rptr. 28, and People v. Salazar, supra, 108 Cal.App.3d at pp. 1000–1001, 167 Cal.Rptr. 38, have all applied the “no-waiver” sentencing rule without reasoned analysis, or by relying on other cases that made such determination without analysis.For example, Ramos, in a footnote and without analysis, found waiver inapplicable to sentencing because the issue was not timely raised, it could find “no indication” waiver applied to sentencing, and the defendant's sentencing arguments resembled a challenge to the sufficiency of the evidence. (People v. Ramos, supra, 106 Cal.App.3d at p. 598, fn. 1, 165 Cal.Rptr. 179.) As to this last reason, we acknowledge issues of sufficiency of the evidence to support a conviction are not waived by the failure to interpose an objection at trial, but disagree a sentencing argument going to the invalidity or unreasonableness of an aggravating factor or consecutive reason, like inaccuracies in probation reports or the reasonableness of probation conditions, is the same thing.Jones 's conclusion waiver would not apply because “a defendant can gain no advantage over the People by his failure to make a timely objection below ․” (People v. Jones, supra, 111 Cal.App.3d at p. 605, 169 Cal.Rptr. 28) is just that, conclusory and without authority or analysis.In Lutes the court relied on Jones and stated without analysis or authority that the California Rules of Court impose a sua sponte duty on the trial court to articulate reasons for its sentencing choice. (People v. Lutes, supra, 117 Cal.App.3d at pp. 832–833, 173 Cal.Rptr. 300.) The rules, however, merely provide the guidelines for the trial court's exercise of its statutory sentencing duties.The more recent cases like Wortman and Robinson do not contain any analysis beyond citing and quoting from the earlier cases and stating the law is settled. (People v. Wortman, supra, 11 Cal.App.4th at pp. 652–653, 14 Cal.Rptr.2d 223; People v. Robinson, supra, 11 Cal.App.4th at pp. 616–618, 14 Cal.Rptr.2d 88.) As Neal observes, the court in Wortman, at least recognizes the “provocative and attractive arguments for requiring sentencing errors, like other errors, to be addressed when they can be corrected by the trial court, thereby avoiding needless appeals.” (People v. Neal, supra, 19 Cal.App.4th at p. 1124, fn. 7, 24 Cal.Rptr.2d 129.)
15. Although the court in People v. Crouch (1982) 131 Cal.App.3d 902, 905, 182 Cal.Rptr. 701 did not directly entertain a waiver issue, it did address the impact of the sentencing error (the failure to state reasons for imposing a prison term) found in that case. Regarding remand for resentencing, that court found the record adequate to support the prison term, stating: “It appears to us that the record in this case justifies the order made, hence defense counsel's tacit acceptance of the sentence without statement of reasons can be construed as a waiver or invited error. To hold otherwise merely places form over substance and contributes to a ‘make-work’ slowdown in the courts. [¶] As an officer of the court, defense counsel has an obligation to assist the court in avoiding errors which merely squander court time and in no way constitute an exercise of the client's right to a fair trial.” (Ibid.)
16. As we have determined above, this factor's validity has been waived by Scott's failure to object at sentencing.
17. To reiterate, Scott claims the trial court erred by not staying counts 2, 6, 9 and 14 because they were all part of a continuing course of conduct with counts 1, 5, 8, and 13, respectively. He also argues the court erred when it imposed consecutive rather than concurrent terms for counts 1 and 2, 5 and 6, 8 and 9, and 13 and 14, as they were not independent of one another.
18. Section 654, provides in pertinent part: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; ․”
1. I would note at the outset that the Attorney General never raised the waiver issue in this case. In briefing and at oral argument the People asserted that the upper term and consecutive sentences were justified by the record and the reasons articulated by the trial judge. It was only after we raised the issue during oral argument that the deputy attorney general asked for the opportunity to present supplemental briefing. The People's good fortune is reminiscent of Justice Mosk's analogy in Moradi–Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 250 Cal.Rptr. 116, 758 P.2d 58 to the bakery customer who asked for a loaf of bread and was handed the keys to the bakery. (Id. at p. 314, 250 Cal.Rptr. 116, 758 P.2d 58 (dis. opn. of Mosk, J.).) The Attorney General's failure to initially argue for waiver is at least impliedly inconsistent with the majority's conclusion that their holding is not a new rule of law. (Maj. opn., ante, p. 512; see post, pp. 517–518.)
2. Because the majority do not reach the merits of Scott's contentions in the same fashion as I, I prefer not to deflect the thrust of my comments with a lengthy discussion of the merits at this point. Suffice it to say I agree with Scott that the trial court's statement of reasons does not support consecutive sentences on counts 5 and 6, and on counts 8 and 9. It also does not support imposition of the upper term on counts 1 and 3. (See post, p. 518, fn. 5.)
3. The court explained, “[W]e can conceive of cases in which the court, having legitimate concerns about the defendant's suitability, considers it necessary to condition the grant of probation on one or more terms the defendant finds unreasonable. Contrary to defendant's suggestion, we cannot reduce the risks of challenging such conditions in the sentencing court without unduly foreclosing the permissible exercise of discretion.” (5 Cal.4th at p. 237, 19 Cal.Rptr.2d 520, 851 P.2d 802; see also id. at p. 239, 19 Cal.Rptr.2d 520, 851 P.2d 802 (conc. opn. of Arabian, J.) [“If the trial court determines in the proper exercise of its discretion that it cannot achieve the rehabilitative goals of probation without imposing an objectionable condition, then it will be fully justified in denying probation on that basis if the defendant declines to accept it.”].)
4. In a later footnote, disagreeing with yet another case, the majority comment, “[W]e acknowledge issues of sufficiency of the evidence to support a conviction are not waived by the failure to interpose an objection at trial, but disagree a sentencing argument going to the invalidity or unreasonableness of an aggravating factor or consecutive reason, like inaccuracies in probation reports or the reasonableness of probation conditions, is the same thing.” (Maj. opn., ante, p. 511–512, fn. 14.) This conclusionary statement is particularly noteworthy in a footnote which declines to follow a wealth of consistent precedent on the ground that the analysis contained in those cases is conclusionary.
5. The trial court imposed the upper term on all counts and made the sentence on each count consecutive. The trial judge referred to all three subparts of California Rules of Court, rule 425(a), as support for his decision to impose consecutive sentences. He did not specify the applicability of particular subparts to particular counts. Scott takes issue with the court's reliance on rule 425(a)(2)—separate acts of violence or threats of violence—as to all counts. In any event, he argues, none of the cited criteria support consecutive sentencing as to counts 5 and 9, both of which involved “oral vaginal” contact and occurred at the same time and in the same place as counts 6 and 8 (sexual intercourse).I have no problem with the court's use of rule 425(a)(2) in making the sentences on certain of the counts consecutive, specifically counts 4 and 8 (or 9) which involved separate threats of violence against Latoya and members of her family. The fact that the threats were made to prevent Latoya from revealing the acts rather than to compel the acts (see People v. Bergschneider (1989) 211 Cal.App.3d 144, 154, fn. 8, 259 Cal.Rptr. 219) does not mean that the crimes did not “involve” threats within the meaning of rule 425(a)(2). In any event, with the exception of counts 5/6 and 8/9, the remaining criteria referred to by the trial court (different place/time; independent objective) provide sufficient basis for sentencing consecutively. Indeed, Scott's reply brief seems to concede as much.The factors listed in rule 425(a), however, do not apply in the case of the offenses charged in counts 5/6 and 8/9 because the acts of oral sex and intercourse charged in those paired counts took place at the same time in the same location with an undifferentiated objective. It is true that for section 654 purposes the Supreme Court has rejected the notion that the “intent” to achieve sexual gratification is a single criminal objective. (People v. Perez (1979) 23 Cal.3d 545, 552, 153 Cal.Rptr. 40, 591 P.2d 63.) But Perez is expressly limited to the section 654 issue: “Such an intent and objective is much too broad and amorphous to determine the applicability of section 654.” (Ibid.; emphasis added.) It does not apply to determining whether consecutive or concurrent sentences should be imposed. Indeed, if it did, every sex crime would automatically qualify under rule 425(a)(1). Yet even in Perez itself the trial court imposed concurrent sentences. (23 Cal.3d at p. 548, 153 Cal.Rptr. 40, 591 P.2d 63.) Resentencing as to counts 5, 6, 8 and 9 should therefore be required.The trial court imposed the upper term as to all counts, referring to three factors listed in rule 421 in support of its sentencing choice: The crimes involved violence or the threat of violence (rule 421(a)(1)); the defendant engaged in violent conduct indicating a serious danger to society (rule 421(b)(1)); and the defendant's prior convictions are numerous or of increasing seriousness (rule 421(b)(2)). Scott appears to concede the applicability of rule 421(a)(1) to some of the counts. I agree that counts 4, 8 and 9 involved “threat[s] of great bodily harm.” In addition, because rule 421(a)(1), unlike rule 425(a)(2), does not require “separate” threats of violence, the court would be justified in applying it to all the crimes which followed the first threat in August 1990 and thus “involved” a threat.Rule 421(a)(1), however, cannot be used to support the aggravated term as to crimes which occurred before the first threat was made and otherwise did not involve violence or the threat of violence. As to counts 1 and 3 therefore, we must look to the other reasons specified by the trial court. The first of these is rule 421(b)(1), reflecting that the defendant “has engaged in violent conduct which indicates a serious danger to society.” The People argue that the same facts which supported invocation of rule 421(a)(1) will also support 421(b)(1). The logic of this approach, which would in effect make 421(a)(1) redundant, is questionable. Beyond that, 421(b)(1) refers to “violent conduct” rather than merely the “threat” of violence. Here there was no testimony as to actual violent conduct by Scott apart from the hair-pulling incident. But more than some evidence of violence is required; the level of violence must be such as to indicate “a serious danger to society.” A single instance of hair pulling, while unpleasant, does not meet this standard. I would conclude rule 421(b)(1) is inapplicable on these facts.The court also referred to rule 421(b)(2) in suggesting that Scott's prior convictions were numerous and increasing. Scott argues reference to this factor is inappropriate because sentence enhancements were imposed as to each of his two prior convictions. The People do not attempt to argue the correctness of this factor, but merely suggest that any error was harmless in light of other appropriate factors. Since there are no proper factors to support the upper term as to counts 1 and 3, and since count 1 was used as the principal term, a remand for resentencing is necessary.
HUFFMAN, Associate Justice.
BENKE, J., concurs.