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The People v. Rusty Dale Fairless

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


July 13, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RUSTY DALE FAIRLESS, DEFENDANT AND APPELLANT.

(Super. Ct. Nos. 6240279 & 6247013)

The opinion of the court was delivered by: Duarte, J.

P. v. Fairless

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Rusty Dale Fairless contends the trial court committed prejudicial error when, after revoking his probation, it imposed the previously suspended prison term on the underlying offenses without first ordering and considering a supplemental probation report. The People concede that defendant was entitled to an updated report.

After careful review of the record, we accept the concession and agree that the trial court was required to order a supplemental probation report. We further find that the error was not harmless. Accordingly, we shall vacate the state prison sentence and remand for preparation of a supplemental probation report and a new sentencing hearing.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was convicted by a jury (in case No. 6240279) of evading an officer with willful disregard, hit and run driving, driving with a suspended or revoked license, and possessing false evidence of registration. Defendant pled no contest (in case No. 6247013) to assault with a deadly weapon (a car) upon a police officer, failed to appear in court as required, and thereafter also pled no contest to failing to appear while out on bail.

Defendant was sentenced on August 5, 2005, in both cases to an aggregate prison term of eight years four months. Execution of the sentence was stayed and defendant was placed on five years' probation. A probation report was prepared prior to sentencing.

Defendant violated his probation by failing to report to the probation department as ordered. A February 1, 2007, supplemental probation report was submitted to the court in connection with probation revocation proceedings, which reported that defendant had become homeless. The trial court reinstated defendant on probation, and extended probation for five years.

By the following month, defendant had again failed to meet with his probation officer, and thereafter his location remained

unknown for nearly three years. New petitions to revoke his probation were filed in March 2007 and December 2009.

Defendant was ultimately arrested and a contested revocation hearing was held on March 11, 2010. The court found true allegations defendant failed to report to the probation department as ordered in March 2007, failed to provide the probation department with his current address, and failed to appear as required.

The court sentenced defendant to the prison term of eight years four months originally imposed but stayed in 2005. No supplemental probation report was prepared prior to sentencing.

DISCUSSION

Defendant contends the trial court committed prejudicial error when it failed to order a supplemental probation report prior to revoking his probation and sentencing him to prison, as required by Penal Code*fn1 sections 1203 and 1203.2, and California Rules of Court, rule 4.411(c) (rule).

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."*fn2

These requirements were not followed here. No written report was prepared for the court's consideration in connection with defendant's 2010 probation revocation proceedings, as required by section 1203, subdivision (b)(1), and the three years that elapsed between the 2007 probation revocation proceedings and defendant's 2010 sentencing is "a significant period of time," within the meaning of rule 4.411(c).

There is no federal constitutional right to a supplemental probation report. (Dobbins, supra, 127 Cal.App.4th at p. 182.) 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; therefore, we do 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 the failure to prepare a supplemental probation report 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.)

This case stands in sharp contrast to Dobbins in that here, significantly more time had passed since the most recent probation report (see Dobbins, supra, 127 Cal.App.4th at p. 181), and there is no evidence that the judge who ultimately committed defendant to prison was "intimately acquainted with the facts underlying his violation of probation." (Dobbins, supra, 127 Cal.App.4th at p. 183.) We note that here, the sentencing judge was neither the same judge who placed defendant on probation originally nor the same judge who conducted the probation violation hearing.

Defendant argues that, had a supplemental probation report been prepared, there is a reasonable probability that probation would have been reinstated, as the sentencing court would have learned that he had no prior felony convictions before the present cases, and had suffered no prior prison commitments. A supplemental probation report would also have informed the court of defendant's circumstances while he was out of contact with probation and, defendant argues, "it would be reasonably probable there may have been facts that would have caused the trial court to continue [him] on probation with appropriate modifications and conditions." We cannot say, given this record, that there is not a reasonable probability of a result more favorable to defendant if the error is corrected. We therefore accept the People's concession that the matter should be remanded to the trial court for a new sentencing hearing after ordering a supplemental probation report.

DISPOSITION

The judgment of conviction is affirmed. The sentence is reversed. The case is remanded to the trial court with directions to order a supplemental probation report and hold a new sentencing hearing.

We concur: ROBIE , Acting P. J. BUTZ , J.


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