People v. Oseguera

Opinion

BENSON, J.

—Ramiro Moreno Oseguera (defendant) appeals from the judgment following remand for resentencing after we found in his favor in an earlier appeal.

1

He contends the court erred by failing to direct preparation of a supplemental probation report, and that the court did not state adequate reasons for imposing a consecutive sentence. We affirm.

Facts and Procedural History

We adopt the statement of fact from our earlier opinion.

“Police saw defendant driving erratically, pulled him over, administered field sobriety tests, and arrested him for drunk driving. In his car they found a loaded short-barrel shotgun. The information charged (1) driving under the influence with three prior convictions and refusing to submit to a chemical test; (2) being a convicted felon in possession of a firearm; (3) possessing a short-barrel shotgun; (4) carrying a loaded firearm within a vehicle on a public street; and (5) driving with a suspended license, with three prior convictions of the same offense.

“Defendant waived a jury and the matter was tried to the court, which found him guilty on all counts. The court denied probation and sentenced him to the upper term of three years on the [driving under the influence] charge, eight months on the charge of firearm possession by a felon, a stayed upper term on the short-barrel shotgun charge, and concurrent misdemeanor terms on the remaining counts.”

[293]

Defendant appealed. We held the trial court had erred by failing to state adequate separate reasons for its apparent choice to impose both the upper terms and a consecutive sentence, though it had evidence before it which would have supported both sentencing choices had it articulated its reasons properly. Under some circumstances, we might have found similar error harmless. However, because the court failed to state any reason for the consecutive sentence, or indeed, to refer at all to that choice, the record left open the possibility the court had been unaware of its discretion