PEOPLE v. RICHARDSON (1980)

A jury found defendant guilty of grand theft, person (Pen. Code § 487, subd. 2). Probation was denied and he was sentenced to the middle term of two years. His appeal raises two issues: (1) the sufficiency of the evidence; and (2) the claim that the trial court did not comply with California Rule of Court 439, subdivision (d), in that it failed to state the reasons for denying probation.

FACTS

The victim, Jose Teodoro, was at the Sports Arena at Santa Barbara and Figueroa in the late afternoon of June 19, 1979 to buy tickets for a soccer game. Before he went to the ticket window he saw defendant and another man—“X”—on the grass area. When Teodoro arrived at the ticket window, defendant was about two meters behind him. X had remained on the grass. Teodoro bought his tickets and put his change into his bus pass folder which he put into his left hip pocket.

Teodoro then started to walk toward the bus stop at the corner of Santa Barbara and Figueroa. Defendant followed him, and eventually caught up with him and asked him for a cigarette. Teodoro did not have any. He then saw X walking about three meters behind defendant. The three men then crossed Figueroa. Defendant and X were ahead of Teodoro. After they had crossed the street defendant sat down on one of the bus benches. When the bus approached, he looked in the direction of Teodoro and X. Teodoro saw defendant close his right eye and nod in his direction. When Teodoro started to climb onto the bus with his bus pass in his left hand, X grabbed it. Teodoro demanded its return but X kept it from him by turning and jumping away. Eventually he threw the folder to defendant. Teodoro then ran to defendant and demanded the folder from him. Defendant held it behind his back. Both he and X were laughing. After a couple of minutes defendant threw the folder back to X and started to leave the scene. Teodoro then got into a fight with X, during which X attacked him with a knife. X got away, but defendant was stopped by a witness who was a retired peace officer.

Defendant testified. He admitted being at the scene but, in essence, denied any involvement in the theft of the victim's folder.

After the jury had found defendant guilty, he applied for probation. After the probation report had been prepared, the matter came on for sentencing. The relevant proceedings are copied below.¹ It is apparent that the court gave no reason for denying probation and sentencing defendant to prison.

DISCUSSION

The argument that the evidence is insufficient to support defendant's conviction is too insubstantial to deserve detailed refutation in a published opinion. Clearly there was more than sufficient evidence to support the prosecution's theory that defendant and X worked in concert.

More substantial is the complaint that the trial court failed to state reasons for denying probation.²

The sentencing rules adopted by the Judicial Council pursuant to section 1170.3 of the Penal Code define, in subdivision (f) of rule 405 the term “sentence choice” to mean “the selection of any disposition of the case which does not amount to a dismissal, acquittal, or grant of a new trial.” Consistent with that definition, subdivision (d) of rule 439 states that the “[s] election of the middle term does not relieve the court of its obligation under section 1170(c) [of the Penal Code] to state the reasons for imprisonment as its sentence choice.” Consequently in People v. Arceo (1979) 95 Cal.App.3d 117, 120-122, 157 Cal.Rptr. 10, the court held that where the trial court denies probation and imposes any prison sentence—even, as here, the middle term—it must state its reasons for doing so. Absent such a statement the case must be remanded with directions to resentence the defendant.

Although our perusal of the probation report before the trial court in this case amply justifies the denial of probation, we find it difficult to distinguish Arceo on the primary basis urged by the People: that the appeal is governed by People v. Blessing (1979) 94 Cal.App.3d 835, 155 Cal.Rptr. 780—that to demand compliance with subdivision (d) of rule 439 would be “to engage in idle gestures or [to] reach ridiculous results by slavish adherence to ritualistic form.” (Id., p. 839, 155 Cal.Rptr., p. 781.) We certainly cannot say that it would have been an abuse of discretion to grant probation, nor can we take it upon ourselves to exercise a discretion which properly belongs to the trial court.

Nevertheless, defendant is not entitled to a remand for resentencing. As their second rejoinder to his claim, the People point out that defendant's trial attorney failed to make the point raised by appellate counsel. While no decision known to us discusses the issue whether total failure to comply with the Judicial Council's sentencing rules must be raised at the trial level, we think that analogous precedent and the efficient administration of justice compel an affirmative answer.

Since 1872 section 1200 of the Penal Code has provided for the right of allocution—that the defendant “when asked by the court whether he has any legal cause to show why judgment should not be pronounced against him.” Yet it is well established that where the defendant is represented by counsel, failure to comply with section 1200 is “not fatal where defendant is present and represented by counsel and no prejudice appears.” (People v Thomas (1955) 45 Cal.2d 433, 438, 290 P.2d 491, 495; see also People v. Maese (1980) 105 Cal.App.3d 710, 724, 164 Cal.Rptr. 485.) Yet, as the cases demonstrate, the right to allocution is not a mere formality but, depending upon the circumstances, a substantial right. (See, e. g., Stenback v. Municipal Court (1969) 272 Cal.App.2d 27, 30-31, 76 Cal.Rptr. 917.) The obvious assumption is that if there is any reason why judgment should not be pronounced, counsel will speak up. It would be ludicrous to reverse and remand for resentencing only to discover that there is really no reason why judgment should not be pronounced.

We can see no functional difference between the right of allocution and the trial court's statement of reasons for its sentence choice. If trial counsel feels that the articulation required by the sentencing rules would reveal that the trial court's sentence choice is based on improper criteria, all he has to do is to nudge the court into compliance with the rules.³

Realistically, we do not doubt that if counsel feels that an articulation of the trial court's reasons for its sentence choice would reveal either to that court or, if necessary, to an appellate court, that the client has been too harshly dealt with, counsel would politely but promptly remind the court that something remains to be done. In the vast majority of cases, however, a reminder would simply result in an appeal—proof sentence—the last thing counsel may want. Yet if we do not insist that, as a condition to raising the issue on appeal, counsel do his job in the trial court, we simply invite dozens of unnecessary reversals which will not change the end result by one iota. The many real problems with which we must deal, should not be kept waiting in line while we spin our wheels on wholly imaginary issues created by our own failure to insist that the place to make a record is the trial court, plus our own lack of appreciation that one of the purposes of procedural rules is to prevent, rather than to perpetuate, error.

Affirmed.

FOOTNOTES

1.  “THE COURT: I have read and considered a 15—page probation report. Are there any priors alleged in this matter? [DEFENSE COUNSEL] No priors alleged, no proof offered. [PROSECUTOR] That's correct, Your Honor. [ [ [ [DEFENSE COUNSEL] We would appreciate a statement by the court to that effect. THE COURT: No priors alleged? [PROSECUTOR] Correct. THE COURT: Do you wish to be heard? [DEFENSE COUNSEL] Submit it. [PROSECUTOR] Submitted, Your Honor. THE COURT: Probation is denied, and the defendant is sentenced to state prison for two years.

2.  The trial court did, of course, state that it had read and considered the probation report. The report stated several reasons for denying probation. Nevertheless, for the reasons explained in People v. Turner (1978) 87 Cal.App.3d 244, 247, 150 Cal.Rptr. 807, the reference to the probation report is not a statement of reasons that complies with rule 439(d). (See also People v. Davis (1980) 103 Cal.App.3d 270, 279-280, 163 Cal.Rptr. 22.)

3.  We hasten to point out the obvious: this opinion only deals with a trial court's total failure to state reasons for its sentence choice. Nothing we have said requires trial counsel to point out legal or factual flaws in the court's statement: such a requirement would amount to a compulsory reargument of matters presumably covered before submission. (Cf., People v. Ramos (1980) 106 Cal.App.3d 591, 598, fn.1, 165 Cal.Rptr. 179.)

KAUS, Presiding Justice.

STEPHENS and ASHBY, JJ., concur. Hearing denied; MOSK, J., dissenting.