People v. Ornelas

Opinion

GILBERT, P. J.

A defendant and his counsel appear in court for sentencing. The court inadvertently omits to ask whether there is any legal cause not to pronounce sentence. Defendant does not object. Here we hold that reversal of the judgment is not required absent a showing of prejudice.

FACTS

On August 2, 2004, Ornelas drove several Eastside gang members to the west side of Santa Barbara. Prior to leaving, Ornelas directed his passengers

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to leave their tire irons in the trunk of his Lincoln Town Car. When Ornelas drove by a market, he saw Alejandro M. and Brian R., Westside gang members, standing in front of the market. He stopped his car, his passengers retrieved their tire irons, and a fight ensued. Another vehicle containing Eastside gang members also stopped and its occupants joined the fight.

Alejandro M. and Brian R. suffered serious and deep stab wounds inflicted by a passenger in the second vehicle. When police officers later found Ornelas’s Town Car, they saw bloodstains on and inside the car. During an interview with police officers, Ornelas admitted “cruising” with three Eastside gang members and stated that a fight ensued when Westside gang members threw objects at his Town Car. Later, when interviewed by the probation officer, Ornelas stated that he “was hanging around with the wrong people.”

On November 2, 2004, Ornelas pleaded nolo contendere to one count of assault with a deadly weapon, and he admitted committing the crime for the benefit of a criminal street gang. (Pen. Code, §§ 245, subd. (a)(1) & 186.22, subd. (b)(1).

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) A plea agreement with the prosecutor provided for “a three-year prison lid,” probation, or “any other combination.” The trial court continued the sentencing hearing on three occasions.

On February 10, 2005, Ornelas and his attorney appeared for sentencing. The trial court informed Ornelas of the charges to which he had pleaded, but did not inquire “whether [Ornelas] ha[d] any legal cause to show why judgment should not be pronounced against him.” (§ 1200.) The trial court sentenced Ornelas to a three-year midterm sentence for assault, and stayed the five-year term for the criminal street gang enhancement. Neither Ornelas nor his attorney objected to the sentencing procedure and neither requested to present mitigating evidence.