Gutierrez

I write separately for two reasons. First, I do not believe the case law supports application of the standard of reversal articulated by the majority. The rule which seems to be reflected in the cases is that the failure to state reasons for a sentencing choice requires reversal if there is any reasonable possibility a statement of reasons would have produced a more lenient sentence or would have disclosed reversible substantive error. I concur in the result because, applying this standard to the facts of this case, I perceive no reasonable possibility the trial court would have imposed concurrent sentences under the facts presented, or that a statement of reasons would have disclosed reversible substantive error in the court’s sentencing calculus.

Second, although I feel compelled by existing case law to apply some harmless error rule in this context, I seriously question the wisdom of doing so. For the reasons stated in part III below, I believe the better rule would call for reversal in all cases where this error occurs.

I.

A basic theme running through the determinate sentencing law, Penal Code sections 1170 et seq. (DSL), 1 is that the trial court’s discretion in…

Michael Gutierrez appeals under Penal Code section 1237, from the sentence imposed on him in case No. 16778-C for violations of Penal Code 1 sections 459 (residential burglary), 496 (receiving stolen property), and in case No. 16135-C for violation of section 666 (theft). Appellant was found guilty of residential burglary and receiving stolen property in a jury trial, and in a separate and unrelated case, pled guilty to the theft charges. The sole issue on appeal is whether the trial court’s failure to state reasons for imposing a consecutive sentence for the unrelated theft offense constitutes harmless error. Appellant also requests that the abstract of judgment be modified to reflect the correct amount of credit for time served as shown by the reporter’s transcript of the sentencing hearing.

Statement of the Case

On January 9, 1990, following a plea of guilty, appellant was sentenced to four years in state prison for violation of section 666 with a one-year enhancement imposed under section 667.5, subdivision (b), for a prior prison sentence. This theft offense had occurred on January 21, 1989.

On December 12, 1989, an information was filed in the Sonoma County…

Michael Gutierrez appeals under Penal Code section 1237, from the sentence imposed on him in case No. 16778-C for violations of Penal Code [1] sections 459 (residential burglary), 496 (receiving stolen property), and in case No. 16135-C for violation of section 666 (theft). Appellant was found guilty of residential burglary and receiving stolen property in a jury trial, and in a separate and unrelated case, pled guilty to the theft charges. The sole issue on appeal is whether the trial court's failure to state reasons for imposing a consecutive sentence for the unrelated theft offense constitutes harmless error. Appellant also requests that the abstract of judgment be modified to reflect the correct amount of credit for time served as shown by the reporter's transcript of the sentencing hearing.

On January 9, 1990, following a plea of guilty, appellant was sentenced to four years in state prison for violation of section 666 with a one-year enhancement imposed under section 667.5, subdivision (b), for a prior prison sentence. This theft offense had occurred on January 21, 1989.

On December 12, 1989, an information was filed in the Sonoma County Superior Court…