(Super. Ct. No. 08F03878)
The opinion of the court was delivered by: Nicholson , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 James Allen appeals from a judgment revoking probation and imposing a prison sentence. He claims the trial court erred when it imposed the sentence without first obtaining a supplemental probation report. We conclude under the circumstances of this case that the error was harmless, and we affirm the judgment.
On May 22, 2008, defendant pleaded no contest to one felony count of transporting cocaine base in violation of Health and Safety Code section 11352, subdivision (a). The trial court received and reviewed a probation report for this conviction. On June 19, 2008, the court suspended imposition of sentence, placed defendant on formal probation for four years, and ordered him to serve 180 days in the county jail.
On September 10, 2008, defendant admitted violating his probation terms by failing to enroll in drug counseling. The trial court reinstated probation and ordered defendant to serve 60 days in the county jail.
On January 2, 2009, defendant admitted violating his probation terms by being arrested on September 13, 2008, for committing domestic violence offenses. The court asked the prosecutor his opinion about referring the matter for a probation report. The prosecutor said it was not necessary because the victim was in attendance at court and she did not wish to make an impact statement. The court did not refer the matter to probation.
The court imposed the upper term prison sentence of five years on the 2008 narcotics conviction and suspended execution. It reinstated defendant on probation and ordered him to serve 360 days in the county jail.
In July 2010, the district attorney petitioned the court for an order revoking defendant's probation. She alleged that on June 26, 2010, defendant inflicted corporal injury on a spouse or partner in violation of Penal Code section 273.5, subdivision (a).
Following a hearing on the petition, the court determined defendant had committed a simple battery in violation of Penal Code section 242, a lesser included offense of corporal injury. The court did not refer the matter for an updated or supplemental probation report, and defense counsel did not request one. The court imposed the previously suspended five-year prison sentence.
Defendant claims the trial court's failure in 2010 to refer the matter for a probation report was prejudicial error. We agree it was error, but we ...