Metropolitan News-Enterprise


Friday, August 22, 2003


Page 1


Supreme Court: Tentative Rulings on Sentencing Not Required


By DAVID WATSON, Staff Writer


The state Supreme Court yesterday rejected claims its 1994 ruling requiring criminal counsel to have a “meaningful opportunity to object” before sentences are imposed should be interpreted to mandate tentative rulings in advance of sentencing hearings.

The requirements of People v. Scott, 9 Cal.4th 331, are met as long as trial judges tell defense attorneys during the course of the hearings what sentences they plan to impose and explain how they arrived at them, Justice Joyce L. Kennard said for the unanimous court.

The decision reverses an April 2002 ruling by the Fourth District Court of Appeal’s Div. Three. That court ruled that retired Orange Superior Court Judge Robert R. Fitzgerald, sitting on assignment, erred in relying on the use of a firearm by Alejandro Gonzalez and Jaime Pano both to aggravate their carjacking sentence and as an enhancement.

Complex Issues

Writing for a unanimous panel, Justice Richard Aronson noted that sentencing issues have become increasingly complex and suggested that under Scott “more affirmative steps to inform defendants of the reasons for the contemplated sentence” were needed. He commented:

“A ‘tentative ruling’ procedure during the sentencing hearing would satisfy Scott’s requirements. The defendant would then be required to bring to the trial court’s attention any perceived errors or forfeit the issue on appeal. Tentative decisions are commonplace in civil cases. Requiring the procedure in criminal sentencing hearings should cause no great burden.”

But Kennard said Aronson had read Scott’s requirements too broadly.

She noted that Scott held not that notice of the intended sentence was constitutionally required, but only that in the absence of such notice, a defendant’s failure to object at the trial court level could not be construed as waiver of the right to raise a sentencing issue on appeal.

The high court jurist wrote:

“[W]e 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....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.”

Kennard noted that in sentencing Gonzalez and Pano, Fitzgerald began with the words, “Defendants are sentenced as follows.”

She explained:

“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.”

Objections Permitted

But the justice pointed out that Fitzgerald did allow objections and the defense lawyers made them—though they neglected to raise the double use of facts issue as to the gun enhancement on which the defendants sought to rely in their appeal.

“The court did not tell defendants their objection was untimely or impermissible; instead, it considered and rejected the objection,” Kennard said. “Thus, the court did give defendants a ‘meaningful opportunity to object’ as required by Scott....”

The defendants had an opportunity to raise the dual use objection before Fitzgerald and when they did not, waived it under Scott, the justice concluded.

Glendale attorney Harvey L. Goldhammer argued the case in the Supreme Court on behalf of Gonzalez.

The case is People v. Gonzalez, 03 S.O.S. 4587.


Copyright 2003, Metropolitan News Company