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The People v. Rusty Dale Fairless

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...


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