Home > Opinions > People v. Gonzalez (Alejandro)
Docket No. S107167
People v. Gonzalez (Alejandro)
Filed 8/21/03
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
Ct.App. 4/3 G025767
ALEJANDRO P. GONZALEZ et al.,
) Orange
Defendants and Appellants.
Super. Ct. No. 98CF2766
In People v. Scott (1994) 9 Cal.4th 331 (Scott), this court held that a party
in a criminal case may not challenge the trial court's discretionary sentencing
choices on appeal if that party did not object at trial. Scott stressed, however, that
counsel must have a "meaningful opportunity to object . . . [which] can occur only
if, during the course of the sentencing hearing itself and before objections are
made, the parties are clearly apprised of the sentence the court intends to impose,
and the reasons that support any discretionary sentencing choices." (Id. at p. 356.)
To effectuate that requirement, must the trial court issue a tentative decision
before the sentencing hearing? The answer is "no."
As jewelry salesman Dominguez Sosa backed his car out of his garage,
codefendants Alejandro Gonzalez and Jaime Pano accosted him at gunpoint and
got in the car, ordering Sosa into the passenger seat. They threatened to harm
Sosa's family if he did not cooperate, claiming that two people were in his garage
waiting for instructions. After defendants drove with Sosa for several hours,
taking his gold ring, the car stalled on the freeway shoulder. Shortly thereafter, a
patrol car with two officers pulled up. While the officers talked to defendants,
Sosa alerted them to his capture by handing them an envelope on which he had
written, "Help me. He's got a gun." Sosa later discovered that jewelry had been
stolen from his home while defendants held him captive.
Defendants were charged with kidnapping for robbery (Pen. Code, § 209),1
carjacking (§ 215, subd. (a)), second degree robbery (§ 211), criminal threats
(§ 422), and kidnapping for carjacking (§ 209.5, subd. (a)). The information also
alleged, as sentence enhancements, that each defendant used a firearm during the
commission of these crimes (§ 12022.53, subd. (b)), and that defendant Gonzalez
had served a prior prison term (§ 667.5, subd. (b)).
Defendants waived the right to a jury trial, and they agreed to submit the
matter to the trial court based on the investigative reports and the transcript of the
preliminary hearing. The court convicted both defendants of kidnapping (a lesser
offense necessarily included in the charged crime of kidnapping for robbery), as
well as the charged crimes of carjacking, robbery, and criminal threats. The court
acquitted defendants of kidnapping for carjacking. It found the firearm use
enhancement to be true as to each defendant. Defendant Gonzalez admitted the
prior prison term enhancement.
Each defendant's probation report listed the planned nature of the crimes as
an aggravating circumstance, and defendant Gonzalez's report also mentioned that
he was on parole when he committed the offenses. Defendant Gonzalez's
probation report listed no mitigating circumstances, while defendant Pano's
All further statutory references are to the Penal Code.
probation report listed his lack of a prior criminal record as the only mitigating
circumstance. The probation reports recommended that each defendant pay a
restitution fine of $1,000.
At the sentencing hearing, Sosa requested the court to order defendants to
pay restitution for jewelry that was stolen from his home while defendants had
kidnapped him. He initially said his loss was "about $9,000," but he then
corrected himself, stating that he had lost approximately $5,000 and that he had
brought receipts with him to court. After listening to Sosa's statement, the court
said it would "consider restitution."
After hearing arguments from the prosecutor and counsel for defendant
Gonzalez, and a personal statement from defendant Pano, the trial court
announced its sentence. For each defendant, it stayed execution of sentence for
the charges of kidnapping and criminal threats. (§ 654.) It selected the crime of
carjacking as the base term for each defendant and chose the aggravated term, nine
years in prison, because they were armed when they committed that offense. It
sentenced each defendant to one year in prison for robbery, to be served
consecutive to the sentence for carjacking, and it sentenced each defendant to 10
consecutive years in prison for the firearm-use enhancement. It also sentenced
defendant Gonzalez to one consecutive year for his prior prison term. Thus, the
court sentenced Gonzalez to a total of 21 years in prison and Pano to 20 years. It
also ordered defendants to pay restitution of $5,000 to Sosa, for which they were
jointly and severally responsible, and it ordered each defendant to pay a restitution
fine of $5,000.
Defendants objected to the restitution order, arguing that it was for a loss
related to a crime they were neither charged with nor convicted of committing.
The court responded: "The objection [is] noted for the record."
On appeal, defendants argued that in imposing sentence, the trial court had
impermissibly relied twice on the fact that they were armed when they committed
the crimes: first to impose the upper term for carjacking, and then to impose the
firearm use enhancement. They further argued that the restitution order violated
their due process rights because the court had not given them notice and an
opportunity to be heard, and that the restitution was improper because they were
not convicted of stealing Sosa's jewelry. The Attorney General responded that the
first two of these claims were not properly before the Court of Appeal because of
defendants' failure to raise them in the trial court.
The Court of Appeal held that none of defendants' claims was barred on
appeal. It reasoned that because the probation reports did not list firearm use as an
aggravating circumstance, and the trial court did not indicate before it imposed
sentence that it would use this circumstance as an aggravating factor, defendants
did not know the trial court would impermissibly use this fact twice. Accordingly,
the Court of Appeal held that the trial court did not apprise defendants of this
aspect of its intended sentence and the reasons for its sentencing choices before it
pronounced judgment, and therefore Scott, supra, 9 Cal.4th 331, did not bar them
from challenging the sentence on this ground. The Court of Appeal also held that
defendants could raise an appellate challenge to the trial court's restitution order
on the ground that the trial court had ordered them to pay restitution without
giving them notice and an opportunity to contest the restitution amount.
Concluding that the trial court's sentence was improper in each of these respects,
the Court of Appeal reversed the judgment and remanded the case to the trial court
for resentencing.
We granted the Attorney General's petition for review.
In Scott, this court prospectively announced a new rule: 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. (Scott, supra, 9 Cal.4th at p. 353.) The rule
applies to "cases in which the stated reasons allegedly do not apply to the
particular case, and cases in which the court purportedly erred because it double-
counted a particular sentencing factor, misweighed the various factors, or failed to
state any reasons or give a sufficient number of valid reasons" (ibid.), but the rule
does not apply when the sentence is legally unauthorized (id. at p. 354).
Scott reasoned: "[C]ounsel is charged with understanding, advocating, and
clarifying permissible sentencing choices at the hearing. Routine defects in the
court's statement of reasons are easily prevented and corrected if called to the
court's attention." (Scott, supra, 9 Cal.4th at p. 353.) Such a requirement would
"reduce the number of errors committed in the first instance and preserve the
judicial resources otherwise used to correct them." (Ibid.) Scott perceived no
unfairness to the parties. It explained: "The parties have ample opportunity to
influence the court's sentencing choices under the determinate scheme. As a
practical matter, both sides often know before the hearing what sentence is likely
to be imposed and the reasons therefor. Such information is contained in the
probation report, which is required in every felony case and generally provided to
the court and parties before sentencing. [Citations.] In anticipation of the hearing,
the defense may file, among other things, a statement in mitigation urging specific
sentencing choices and challenging the information and recommendations
contained in the probation report. [Citations.] Relevant argument and evidence
also may be presented at sentencing. [Citations.] . . . [A] defense attorney who
fails to adequately understand the available sentencing alternatives, promote their
proper application, or pursue the most advantageous disposition for his client may
be found incompetent." (Scott, supra, 9 Cal.4th at pp. 350-351.)2
But Scott went on to say: "[T]here must be a meaningful opportunity to
object to the kinds of claims otherwise deemed waived by today's decision."
(Scott, supra, 9 Cal.4th at p. 356, italics added.) "This opportunity can occur,"
Scott observed, "only if, during the course of the sentencing hearing itself and
before objections are made, the parties are clearly apprised of the sentence the
court intends to impose and the reasons that support any discretionary choices."
Defendant Pano argues that Scott requires trial courts to provide the parties
with a tentative decision before the sentencing hearing, and defendant Gonzalez
contends we should require the trial court to give tentative decisions in writing, 24
hours before the hearing. We disagree. Scott rejected the argument of the
defendant in that case that "a rule requiring a contemporaneous objection to
defects in the court's statement of reasons is impractical . . . [because] it is
unrealistic to expect counsel to comprehend, remember, and respond to the various
sentencing factors and choices delivered orally by the court at the hearing."
(Scott, supra, 9 Cal.4th at pp. 355-356.) Scott held that the parties need only be
advised of the trial court's intended sentence "during the course of the sentencing
hearing itself . . . ." (Id. at p. 356.)
As previously explained, the Scott rule applies when the trial court "clearly
apprise[s]" the parties "of the sentence the court intends to impose and the reasons
that support any discretionary choices" (Scott, supra, 9 Cal.4th at p. 356), and
We also urge prosecutors, as officers of the court, to bring to the trial
court's attention any errors they note in the court's sentence, even when they do
not intend to raise those errors on appeal.
gives the parties a chance to seek "clarification or change" (id. at p. 351) by
objecting to errors in the sentence. The 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. The court need not expressly describe its proposed sentence as
"tentative" so long as it demonstrates a willingness to consider such objections. If
the court, after listening to the parties' objections, concludes that its proposed
sentence is legally sound, it may simply state that it is imposing the sentence it has
just described, without reiterating the particulars of that sentence. By contrast, if
the trial court finds that one of the parties has raised a meritorious objection to the
proposed sentence, it should alter its sentence accordingly.
It is only if the trial court fails to give the parties any meaningful
opportunity to object that the Scott rule becomes inapplicable. This occurred in
People v. Dorsey (1996) 50 Cal.App.4th 1216. There, the trial court placed the
defendant on probation in the "interest 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." (Id. at
p. 1224.) Accordingly, Dorsey correctly held that the prosecution could challenge
the sentence on appeal.3
In People v. Middleton (1997) 52 Cal.App.4th 19, the trial court issued a
tentative ruling before the sentencing hearing. During argument, the defendant did
not object to the intended sentence. Therefore, the Court of Appeal held that he
had not preserved his appellate challenge to the trial court's sentence on the
ground that the trial court gave inadequate reasons for ordering that the sentence
(Footnote continued on next page.)
Both defendants argue that the due process clause of the Fourteenth
Amendment to the federal Constitution requires advance notice of the trial court's
intended sentence. They do not assert there is an independent due process right
that, if not followed to the letter by the sentencing court, would create its own
ground for appellate reversal; nor would such an argument be tenable. Rather,
defendants argue that if they do not receive adequate notice in the trial court, the
due process clause entitles them to raise on appeal any sentencing error not
objected to in the trial court.
In support, defendants cite Burns v. United States (1991) 501 U.S. 129
(Burns). At issue in Burns was whether a federal trial court must notify the
defendant before the sentencing hearing if it intends to impose a sentence above
the range established by the federal Sentencing Guidelines. In a five to four
decision, the high court held that such notification was implicit in rule 32 of the
Federal Rules of Criminal Procedure. It explained: "Notwithstanding the absence
of express statutory language, this Court has readily construed statutes that
authorize deprivations of liberty or property to require that the Government give
affected individuals both notice and a meaningful opportunity to be heard."
(Burns, supra, 501 U.S. at pp. 137-138.) It noted that if it were to hold that rule
(Footnote continued from previous page.)
on one count be served consecutively. In dicta, the Court of Appeal said that Scott
"did announce significant restrictions on the waiver rule," and that the rule does
not apply "if the sentencing court did not provide a tentative ruling which includes
the court's discretionary choices and supporting reasons." (Id. at p. 37.) To the
extent Middleton may be read as saying that Scott's purpose was to impose
"significant restrictions on the waiver rule" (ibid.) or that it requires trial courts to
give a tentative ruling before the sentencing hearing, Middleton is inconsistent
with Scott and is disapproved.
32 did not require such notice, it "would then have to confront the serious question
whether notice . . . is mandated by the Due Process Clause" (Burns, supra, 501
U.S. at p. 138), and it quoted authority stating that the high court generally
construes laws to avoid " 'serious constitutional problems' " (ibid.).
Although Burns acknowledged that whether the due process clause requires
a trial court to give advance notice of an unexpectedly high sentence poses a
"serious question" (Burns, supra, 501 U.S. at p. 138), it did not decide when, if
ever, the due process clause would require such notice.
To determine whether notice is required, both parties urge us to apply the
test the high court set forth in Mathews v. Eldridge (1976) 424 U.S. 319. That test
requires consideration of three factors: "First, the private interest that will be
affected by the official action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards; and finally, the Government's interest,
including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail." (Id. at p. 335.)
It is not clear whether the Mathews test is applicable here. Recently, the
high court had this to say about that test: "The Mathews balancing test was first
conceived in the context of a due process challenge to the adequacy of
administrative procedures used to terminate Social Security disability benefits.
Although we have since invoked Mathews to evaluate due process claims in other
contexts [citation], we have never viewed Mathews as announcing an all-
embracing test for deciding due process claims. Since Mullane [v. Central
Hanover Bank & Trust Co. (1950) 339 U.S. 306] was decided, we have regularly
turned to it when confronted with questions regarding the adequacy of the method
used to give notice." (Dusenbery v. U.S. (2002) 534 U.S. 161, 167-168.)
Mullane requires a reviewing court to determine whether the method of
notice is "reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present
their objections." (Mullane v. Central Hanover Bank & Trust Co., supra, 339
U.S. at p. 314; see also Dusenbery v. U.S., supra, 534 U.S. at p. 168.) At issue
here is the adequacy of the method used to give notice of the trial court's intended
sentence, so Mullane may apply, although the high court has not considered
whether that test applies in criminal cases.
Regardless of which test applies, however, we find nothing in the Fourteenth
Amendment's due process clause that would require advance notice by a trial court of
its intended sentence. Although defendants have an important private interest in
receiving a fair sentence, the risk that the Scott rule will result in a deprivation of that
interest is not substantial. Under California law, information pertinent to sentencing is
frequently contained in the presentence probation report, thus enabling the parties to
anticipate the trial court's sentencing choice and its reasons. (See Scott, supra, 9
Cal.4th at p. 351.) In the rare instance where the actual sentence is unexpected,
unusual, or particularly complex, the parties can ask the trial court for a brief
continuance to research whether an objection is warranted, or for permission to submit
written objections within a specified number of days after the sentencing hearing. Such
a procedure would satisfy a requirement, if any, under the due process clause of
advance notice of the trial court's sentence.
Defendants also argue that the due process provisions of the California
Constitution (Cal. Const., art. I, §§ 7, 15) require advance notice of the trial
court's intended sentence. The California test for due process violations is slightly
different from that used by the United States Supreme Court. (See In re Sade C.
(1996) 13 Cal.4th 952, 991, fn. 18; see also People v. Ramirez (1979) 25 Cal.3d
260, 269.) But defendants have not cited, nor have we found, anything in the
language or history of the state provisions, or the cases interpreting them,
suggesting that they impose a notice requirement greater than that required by the
federal Constitution in this context.
Finally, we apply Scott, supra, 9 Cal.4th 331, to the facts of this case.
The trial court prefaced its sentence with the words, "Defendants are
sentenced as follows." (Italics added.) These words may have implied to the
parties that the trial court had already made its sentencing decision. Because the
court had not previously notified the parties that it intended to rely on defendants'
firearm use as a reason for its sentence, it should have more clearly given the
parties a meaningful opportunity to object by saying it was announcing proposed
sentences for each defendant and its reasons for the sentences, that the prosecutor
and defendants were entitled to object, and that if the objections were meritorious
it would alter the sentences appropriately.
Nevertheless, the record shows that after the trial court had stated defendants'
sentences and its reasons for them, defendants did object, although not on two of the
grounds they now wish to raise on appeal. The court did not tell defendants their
objection was untimely or impermissible; instead, it considered and rejected the
objection. Thus, the court did give defendants a "meaningful opportunity to object"
as required by Scott, supra, 9 Cal.4th at page 356. (See People v. Downey (2000) 82
Cal.App.4th 899, 916 [Scott bar applies when trial court allowed parties to interrupt to
make objections while it was pronouncing sentence].)
Defendants objected to the trial court's sentences on only one of the three
grounds they raised on appeal (not addressed by the Court of Appeal): that the
court should not have ordered them to pay restitution for items taken from victim
Sosa's house when they had not been convicted of stealing those items. Thus, on
appeal they may challenge their sentences on that ground. Defendants did not,
however, object on the two other grounds they now assert: that the trial court
improperly relied on their use of firearms in committing the charged crimes in two
different aspects of their sentences, and that the court imposed restitution without
giving them a hearing regarding the amount of Sosa's loss. Therefore, they may
not now raise these claims.
We reverse the judgment of the Court of Appeal, and we remand the matter
to that court for further proceedings consistent with this opinion.
KENNARD,
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Gonzalez
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
XXX 97 Cal.App.4th 1087
Rehearing Granted
Opinion No.
Date Filed: August 21, 2003
Judge: Robert R. Fitzgerald*
Attorneys for Appellant:
Harvey L. Goldhammer, under appointment by the Supreme Court, for Defendant and Appellant Alejandro
P. Gonzalez.
Deborah L. Hawkins, under appointment by the Supreme Court, for Defendant and Appellant Jaime Pano.
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting, Pamela R. Ratner and Marilyn L.
George, Deputy Attorneys General, for Plaintiff and Respondent.
*Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Harvey L. Goldhammer
1724 N. Pacific Avenue
Deborah L. Hawkins
10755-F Scripps Poway Parkway PMB 414
Marilyn L. George
Deputy Attorney General
110 West A Street, Suite 1100
Date: Docket Number:
Thu, 08/21/2003 S107167
1 The People (Plaintiff and Respondent)
Represented by Marilyn L. George
2 Gonzalez, Alejandro P. (Defendant and Appellant)
Represented by Harvey L. Goldhammer
1724 N. Pacific Ave.
Represented by Appellate Defenders, Inc.
555 West Beech Street, Suite 300
4 Pano, Jaime (Defendant and Appellant)
Represented by Deborah L. Hawkins
10755-F Scripps Poway Parkway, PMB 414
Aug 21 2003 Opinion: Reversed
May 29 2002 Petition for review filed
by counsel (AG) for respondent (People). (filed in San Diego)
May 31 2002 Record requested
Jun 6 2002 Received Court of Appeal record
yellow plastic file
Jun 10 2002 Received Court of Appeal record
2 probation reports within 1 confidential evp.
Jul 10 2002 Petition for Review Granted (criminal case)
Brown, J., was absent and did not participate. George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Aug 9 2002 Opening brief on the merits filed
by counsel for respondent (People). (Filed in San Diego) **Answer brief on the merits is due within 30 days from the date counsel is appointed for appellants.**
Aug 9 2002 Request for judicial notice filed (in non-AA proceeding)
by counsel for respondent (People). (Received in San Diego)
Aug 13 2002 Counsel appointment order filed
Upon request of appellant Alejandro P. Gonzalez for appointment of counsel, Harvey L. Goldhammer is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before 30 days from the date of this order.
Upon request of appellant Jamie Pano for appointment of counsel, Deborah Hawkins is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before 30 days from the date of this order.
Sep 9 2002 Request for extension of time filed
Appellant Jaime Pano requesting to October 12, 2002 to file answer brief on the merits.
Sep 11 2002 Request for extension of time filed
appellant Alejandro P. Gonzalez requesting to October 12, 2002 to file answer brief on the merits. *ok to grant - order being prepared*
Sep 11 2002 Extension of time granted
On application of appellant Jaime Pano and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 12, 2002.
On application of appellant Alejandro P. Gonzalez and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 12, 2002.
Oct 9 2002 Request for extension of time filed
by counsel for appellant (J. Pano) requesting extension to November 12, 2002 to file the brief on the merits.
Oct 10 2002 Request for extension of time filed
by counsel for appellant (A. Gonzalez) requesting an extension to November 12, 2002, to file the answer brief on the merits.
Oct 17 2002 Extension of time granted
On application of appellant JAIME PANO and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including Nov. 12, 2002.
On application of appellant ALEJANDRO P. GONZALEZ and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including Nov. 12, 2002.
Oct 28 2002 Answer brief on the merits filed
by counsel for appellant Jaime Pano.
Nov 12 2002 Answer brief on the merits filed
appellant Alejandro P. Gonzalez
Dec 2 2002 Reply brief filed (case fully briefed)
in San DIego by counsel for respondent (The People).
Apr 30 2003 Case ordered on calendar
6-4-03, 9am, L.A.
May 12 2003 Filed:
request of counsel for aplt Pano to divide oral argument time with counsel for aplt Gonzalez
May 14 2003 Order filed
The request of counsel for aplts to allow two counsel to argue on behalf of aplts is granted
The request to allocate 15 min. to aplt Pano and to allocate 15 min. to aplt Gonzalez of aplts' 30-min alloted oral argument time is granted.
Jun 4 2003 Cause argued and submitted
Aug 21 2003 Opinion filed: Judgment reversed
and remanded. Majority Opinion by Kennard, J. joined by George C.J., Baxter, Werdegar, Chin, Brown & Moreno, JJ.
Sep 24 2003 Remittitur issued (criminal case)
Sep 29 2003 Note:
record sent to CA4/3 (1 volume)
Oct 2 2003 Compensation awarded counsel
Atty Goldhammer
Atty Hawkins
Oct 2 2003 Received document entitled:
Receipt for remittitur from CA4/3.
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Download the original court documents for this case:
Advocates On This Case
Appellate Defenders, Inc. (555 West Beech Street, Suite 300)
Harvey L. Goldhammer (Attorney At Law)
Deborah L. Hawkins (Attorney at Law)
Marilyn L. George (Office of the Attorney General)
SCOCAL, People v. Gonzalez (Alejandro) , S107167 available at: (https://scocal.stanford.edu/opinion/people-v-gonzalez-alejandro-33325) (last visited Saturday January 28, 2023).