IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT San Joaquin
February 7, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL JOHN WOOTEN, DEFENDANT AND APPELLANT.
Super. Ct. No. SF099348A
The opinion of the court was delivered by: NICHOLSON,Acting P. J.
P. v. Wooten CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Michael John Wooten appeals from a revocation of probation following his guilty plea to felony possession of cocaine and several probation violations on Proposition 36 probation and drug court probation. (Pen. Code, §§ 1210.1, 1237, subd. (b); Health & Saf. Code, § 11350, subd. (a); undesignated statutory references are to the Penal Code.) Defendant contends (1) the trial court erred in failing to order a probation report or supplemental report before sending him to prison, and (2) amended section 4019 entitles him to an increase in his presentence work and conduct credits. We modify the judgment to increase the credits, but we conclude there was no prejudicial error concerning the probation report, and therefore we affirm the judgment as modified.
On February 24, 2006, defendant was charged with possessing cocaine (Health & Saf. Code, § 11350, subd. (a)) on February 22, 2006. Criminal proceedings were suspended pending an evaluation of defendant's mental competence (§ 1368). Meanwhile, the trial court released defendant on his own recognizance (OR) on the condition that he enroll in the county's Alcohol Drug Alternative Program (ADAP), but defendant repeatedly failed to enroll in ADAP and missed a court appearance. The trial court eventually revoked OR release.
On October 11, 2007, the trial court found defendant competent to stand trial, reinstated criminal proceedings, and reinstated OR release on the condition that defendant attend Narcotics/Alcoholics Anonymous (NA/AA) meetings. Defendant failed to appear for a court hearing, and the court revoked OR release.
On December 4, 2007, defendant pleaded guilty to cocaine possession, "waived referral to the Probation Office," and was placed on Proposition 36 drug treatment probation (§ 1210.1).
On March 11, 2008, the probation department reported defendant violated probation by failing to make contact with the Service First program. On April 2, 2008, defendant admitted the violation. The court reinstated probation and ordered defendant to report to the Proposition 36 office the next day.
On June 2, 2008, the probation department reported a second Proposition 36 violation, because defendant failed to report to the Proposition 36 office. Defendant admitted the second probation violation. The trial court reinstated probation with modified terms, including that he report to the Proposition 36 office by June 24, 2008.
On August 28, 2008, the probation department reported a third Proposition 36 violation, in that defendant was terminated from his drug treatment program at AEGIS Medical Systems for failing to contact/enroll in the program.
On October 23, 2008, defendant admitted the third violation, and the trial court referred the case to the probation department to determine if defendant was a suitable candidate for drug court (Health & Saf. Code, § 11970.1). On November 5, 2008, the probation department filed its "PROBATION OFFICER'S REPORT--SUITABILITY FOR DRUG COURT," recommending that defendant be given an opportunity to participate in drug court. The report noted defendant's criminal history "shows four felony and eight misdemeanor convictions between 1983 and 2007," all of which were "'drug' related offenses." The probation report stated that, based on defendant's statements, he "appears to have made some changes in his life to help him stay off of drugs. He said he no longer associates with people that use and does not go to places where people are using." He said he had been "clean" for a month.
On November 13, 2008, the trial court "deleted" Prop 36 probation, imposed a sentence of the lower term of 16 months in state prison, suspended execution of the sentence, "reinstated and modified" probation with referral of defendant to the El Dorado House residential treatment program, and ordered him to attend and complete the drug court program.
Defendant enrolled at the El Dorado House on November 18, 2008, but left the program, resulting in the program discharging him on November 27, 2008.
On December 2, 2008, defendant failed to appear in drug court.
On December 11, 2008, the probation department reported a probation violation in that defendant (1) failed to notify the probation department of his correct living arrangements, and (2) failed to enroll/complete the drug court program, which terminated him on December 9, 2008. Defendant denied the violation.
At a hearing on February 10, 2009, defendant's drug court case manager testified defendant complained he did not get along with his peers at the El Dorado House. The case manager suggested defendant talk to the El Dorado House counselors and report back to the drug court, but defendant failed to do so. The El Dorado House reported it discharged defendant because he said he had some medical problems and needed to help his significant other. Defendant testified he left the El Dorado House program because (1) he was "semi-approached" by a couple of the peers there, and he "didn't feel comfortable"; (2) he had family problems; and (3) he was not feeling well. Defendant said he did not seek immediate help with his health problem because it was "around the holiday," so he waited until December 2, 2008, to see a doctor for methadone.
On February 10, 2009, the trial court found defendant violated probation, revoked his probation, and sent him to prison for the previously-imposed low term of 16 months.
Defendant contends the trial court erred prejudicially in failing to order a probation report or a supplemental report, as required by sections 1203 and 1203.2 and California Rules of Court, rule 4.411. (Undesignated rule references are to the California Rules of Court.) An absence of required reports may be raised on appeal despite failure to object in the trial court. (§ 1203, subd. (b)(4) [waiver of probation report must be on the record by written stipulation or oral stipulation with judge's consent]; People v. Dobbins (2005) 127 Cal.App.4th 176, 182 [applying forfeiture doctrine would subvert aim of § 1203, subd. (b)(4)] (Dobbins).) We conclude any error was harmless.
Section 1203, subdivision (b)(1), provides in part: "[I]f a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment." Section 1203.2, subdivision (b), states that before revoking probation, "[t]he court shall refer [the matter] to the probation officer. After the receipt of a written report from the probation officer, the court shall read and consider the report and . . . may modify, revoke, or terminate the probation . . . ." Rule 4.411 states in part: "(c) Supplemental reports [¶] The court must order a supplemental probation officer's report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared." (Original highlighting.)
"Section 1203.2, subdivision (b), requires referral to the probation officer, preparation of a written report, and its consideration by the court upon a petition for revocation of probation. But a supplemental or updated report is not necessarily needed in some cases where a recent report has been prepared that may be incorporated by reference." (Dobbins, supra, 127 Cal.App.4th at p. 180, fn. omitted.)
Here, in December 2007, defendant waived referral to probation before being placed on Proposition 36 probation. Defendant notes he did not waive referral to probation in any of the subsequent proceedings to revoke probation, but he presents no analysis warranting reversal with respect to proceedings in which the trial court decided to continue probation. In November 2008, the court had the probation department file a report (titled "PROBATION OFFICER'S REPORT--SUITABILITY FOR DRUG COURT"), which the trial court considered on November 13, 2008, before revoking defendant's Proposition 36 probation, imposing but suspending execution of sentence, and allowing defendant a chance on drug court probation. No further probation report was filed before the court sent defendant to prison on February 10, 2009.
Defendant argues the November 2008 report did not constitute a "probation report" at all, because it "was not very detailed concerning [his] background" and did not apprise the court of the details of his offense (possession of cocaine) "and other relevant information." Defendant thus hopes to invoke the Dobbins rule that failure to object in the trial court does not forfeit an appellate challenge to the absence of a probation report. (Dobbins, supra, 127 Cal.App.4th at p. 182.) However, the report was not omitted, and defendant's argument really presents a claim that the report was inadequate -- a claim not raised by defendant in the trial court. "It is settled that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal. [Citations.]" (People v. Welch (1993) 5 Cal.4th 228, 234 [challenge to reasonableness of probation conditions is forfeited unless presented in the trial court].) Moreover, the November 2008 report contained the basics and was favorable enough to defendant that the trial court granted him drug court probation.
To the extent defendant claims a supplemental report was required when the court sent him to prison three months later, we disagree. A supplemental report is not required if a recent report (within six months) is available and there is no indication of changed circumstances. (Dobbins, supra, 127 Cal.App.4th at pp. 181, 182 [eight-month interim called for supplemental report, but error harmless].) Here, only three months had passed since the November 2008 report, and there is no indication of changed circumstances favoring defendant.
Even assuming for the sake of argument that the trial court should have ordered a supplemental report, any error was harmless. We said in Dobbins, supra, 127 Cal.App.4th at p. 182, that there is no federal constitutional right to a supplemental probation report. Because the alleged error implicates only California statutory law, review is governed by the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 834-836, i.e., the appellate court will not reverse unless there is a reasonable probability of a result more favorable to defendant if not for the error. (Dobbins, supra, 127 Cal.App.4th at p. 182.)
Dobbins found an error harmless, because "[t]he original probation report apprised the trial court of defendant's background and other relevant information. And his record was such (including as it did numerous parole violations and periods of incarceration) that there was little justification for a further grant of probation. Moreover, the trial court was aware from the Proposition 36 status report and from the trial that defendant's conduct while on probation had been poor. The judge who sentenced defendant was the same judge who presided over the trial and was thus intimately acquainted with the facts underlying his violation of probation, which involved use of a weapon. Considering these circumstances, there is no reason to believe that additional information would have led to reinstatement of probation." (Dobbins, supra, 127 Cal.App.4th at p. 183.)
Similarly in this case, the trial court was aware of defendant's background from the report filed three months earlier, and the court was aware of defendant's three violations of Proposition 36 probation and violation of drug court probation (the same judge having presided over the proceedings for all the violations). The judge heard defendant's excuses to the drug court probation violation and found they did not constitute a good defense.
Defendant argues that, had a probation report been prepared, it most likely would have addressed defendant's visits to a mental health facility and AEGIS treatment program. Before sending defendant to prison in February 2009, the trial court heard defendant's testimony that he went to "mental health" on December 10, 2008, after leaving the El Dorado House on November 27, 2008. The trial court also saw a letter from AEGIS, admitted into evidence at the February 2009 hearing, that defendant tried to enroll in AEGIS's Proposition 36 program in July 2008, but was placed on a waiting list due to funding problems. Defendant complained at the February 2009 hearing that this letter could have saved him from revocation of his Proposition 36 probation. However, defendant admitted this final Proposition 36 probation violation in October 2008. Moreover, the trial court had the AEGIS letter before revoking the drug court probation and sending defendant to prison. Thus, defendant would not have benefited from a supplemental probation report adding this information.
Considering these circumstances, there is no reason to believe that additional information would have led to reinstatement of probation. Nor is there reason to believe additional information would have led to a lesser sentence, since the trial court already sentenced defendant to the low term.
Defendant cites section 1203, subdivision (b)(4), which states in part that "if the defendant is ultimately sentenced and committed to the state prison, a probation report shall be completed pursuant to Section 1203c." However, section 1203c, says "whenever a person is committed to [prison] . . . , it shall be the duty of the probation officer . . . to send to the Department of Corrections and Rehabilitation [DOCR] a report of the circumstances surrounding the offense and the prior record and history of the defendant . . . ." Here, defendant does not claim the probation officer failed to report to DOCR.
We conclude there is no reversible error regarding probation reports.
Defendant contends the January 2010 amendments to section 4019 (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50) entitle him to 154 days of presentence credits, as opposed to the 77 days stated in the abstract of judgment. The People do not dispute the math but argue the amendments do not apply retroactively to defendant.
We conclude the amendments do apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].) Defendant is not among the prisoners excepted from the additional accrual of credit. (§ 4019, former subds. (b)(2), (c)(2); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) Consequently, defendant, having served 155 days of presentence custody, is entitled to 154 days of conduct credits.
While this appeal was pending, the Legislature again amended section 4019 but expressly stated the changes to jail inmate credits apply only to crimes committed on or after September 28, 2010. (Stats. 2010, ch. 426, § 2.) Therefore we need not consider the September 2010 changes.
The judgment is modified to show 154 days of section 4019 credits, and the trial court is directed to prepare an amended abstract of judgment and send a copy to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
BUTZ ,J. MAURO,J.
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