IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 15, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAMES ALLEN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F03878)
The opinion of the court was delivered by: Nicholson , J.
P. v. Allen
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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 do not agree it was prejudicial error.
A supplemental probation report was required in this instance. Upon the filing of a motion or petition to revoke probation, the trial court is obligated to refer the motion or petition to the probation officer for a written report if the proceedings occur a significant period of time after an original probation report was prepared. (People v. Dobbins (2005) 127 Cal.App.4th 176, 180 (Dobbins); see Pen. Code, § 1203.2, subd. (b); Cal. Rules of Court, rule 4.411(c).) A period of more than six months may constitute a significant period of time, even if the defendant was incarcerated during that time. (Dobbins, supra, at p. 181.)
Here, the time between defendant's original probation report in 2008 and his sentencing in 2010 for violating probation constituted a significant period of time, and the trial court should have referred the matter for a supplemental probation report before imposing sentence. More than two years had elapsed following the original probation report, a portion of which time defendant spent outside of custody. A new report should have been ordered.
Defense counsel's failure to request a supplemental probation report did not waive defendant's right to that report. Defendant's right to a supplemental probation report may be waived only by a written stipulation signed by the prosecutor and defense counsel and filed with the court, or by an oral stipulation made in open court, and to which the trial court consents. (Dobbins, supra, 127 Cal.App.4th at p. 182; see Pen. Code, § 1203, subd. (b)(4).)
Here, there is no such written stipulation in the record. Nor does the reporter's transcript record any such oral stipulation. Defendant's right to a supplemental probation report was not waived.*fn1
We review a trial court's failure to obtain a required supplemental probation report under the Watson rule of prejudicial error. "Because the alleged error implicates only California statutory law, review is governed by the Watson harmless error standard. (See People v. Watson (1956) 46 Cal.2d 818, 834-836; see also People v. Mower (2002) 28 Cal.4th 457, 484.) That is, we shall not reverse unless there is a reasonable probability of a result more favorable to defendant if not for the error. [Citation.]" (Dobbins, supra, 127 Cal.App.4th at p. 182.)
Our review of the record convinces us it is not reasonably probable defendant would have received a more favorable result had the trial court obtained a supplemental probation report. It is highly unlikely defendant would have again been placed on probation for this latest violation of his probation terms, as the information the trial court had before it would have otherwise been discussed in a probation report, and it would have led the court to deny probation. A formal report would have made little difference.
Defendant is well acquainted with the criminal courts. According to his original probation report, defendant was convicted of 13 misdemeanors between 1993 and 2007. Most of his crimes occurred while he was on probation. His crimes included assault with a deadly weapon, vehicle theft, theft, battery (two convictions), possession of a controlled substance, driving under the influence (three convictions), and driving on a suspended or revoked license (two convictions). From 1996 until 2007, defendant was placed on probation for terms of two, three, or four years on nine separate occasions.
Probation had little effect on defendant. In 2008, as mentioned above, and while he was on probation, defendant pleaded guilty to one count of transporting cocaine base, a felony. He was arrested as part of an undercover "buy/bust" operation. An undercover officer was riding his bike when defendant contacted him. Using street lingo, the officer asked defendant in effect if he had $20 worth of drugs to sell, and defendant asked if the officer would be interested in $20 worth of rock cocaine. The officer and defendant walked to a corner where they met a subject who drove up in a truck. The officer gave defendant a prerecorded $20 bill, and defendant took that to the subject. About 30 minutes later, defendant walked back to the officer and gave him some material that later tested positive for cocaine. As the officer went to ride away on his bike, defendant stopped him and asked for "his piece." The officer saw defendant was becoming agitated, and he had defendant arrested.
A mere three months after being granted four years probation for the narcotics felony, defendant violated the terms of his probation by failing to register for drug counseling. The court reinstated probation.
Only three days later, defendant again violated his probation by committing domestic violence offenses against his live-in girlfriend. He was arrested for burglary, attempted rape, and domestic violence, but the district attorney dropped the case. Again, the court reinstated probation.
Then, in June 2010, defendant yet again violated the terms of his probation. On the night of June 26, 2010, defendant and his live-in girlfriend of 10 years, Carmeleta H., were drinking beer and using drugs with another couple. After the couple left, defendant and Carmeleta argued, and defendant left. When he returned and started beating on the locked door, Carmeleta called 911. While she was speaking with the 911 operator, defendant kicked in the door and entered. He put his hands over Carmeleta's mouth and held her down against the couch. His actions ended the 911 phone call and resulted in Carmeleta suffering a cut lip. Officers who arrived on the scene noticed the phone line had been disconnected from the wall.
The trial court determined defendant was guilty of misdemeanor battery, and then it considered whether defendant should receive yet another probation extension. Even though the court did not have a probation report, it was able to review the record as discussed above and the evidence received at the hearing. Besides describing the 2010 attack at the hearing, Carmeleta described other incidents of violence and drug use between her and defendant over the course of their relationship, including the attack which constituted the 2009 probation violation. Both defendant and Carmeleta had a history of violence against the other, and drugs and alcohol were often involved.
The court also received mitigating information. At sentencing, when defense counsel requested probation, she explained defendant had remained crime free and on probation for a "significant period of time," had never been to state prison, was 59 years old, and had a supportive family. Carmeleta did not want defendant to go to prison.
In addition, counsel explained defendant's sister had recently been diagnosed with terminal cancer and had six months to live. Defendant's mother had died a year previous, and his siblings were supportive of him.
With this background, the court effectively had the information that would have been contained in a supplemental probation report to consider when deciding whether to grant probation.
The question for the court was thus whether defendant was amenable to probation. And that question turned on whether the court believed defendant, as conditions of probation, would not further harm Carmeleta and would not use alcohol or drugs. Defendant's history led the court reasonably to conclude defendant would not comply with those conditions.
The court stated: "[G]iven that [defendant] was on probation with a five-year exposure, and then after violation of probation was on a suspended prison term but still got himself involved in what is clearly a volatile situation and apparently continued to -- even only on seldom basis -- continued to use drugs.
"I can't reasonably say I would expect [defendant] to abide by those conditions of probation that he stay away entirely from [Carmeleta] and from drugs. But that's the only thing I think has any reasonable -- there's any reasonable expectation that would allow him to stay on probation.
"However, given that he has been in these situations before, apparently had been through some drug counseling, and I think they said even after [Carmeleta] reported to the probation officer he went to some kind of anger management, I can't reasonably expect that [defendant] would be able to abide by even the basic conditions of probation that he obey all laws.
"So, [defendant], I'm going to find that you are not amenable to probation in this case."
A probation report would not have produced a different result. The trial court had the relevant information it needed to rule on probation and, based on that information, reasonably concluded defendant was not amenable to probation. "Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Despite having numerous opportunities to take advantage of the benefits of probation, defendant has failed to conform his behavior to the law. He obviously has no regard for the promises to behave that he made to the judges in each of the prior cases in which probation was granted. Probation is an act of clemency and grace, not a matter of right. (People v. Anderson (2010) 50 Cal.4th 19, 32.) In defendant's case, probation has not resulted in his obeying the law. As the trial court reasonably concluded, there is no indication he will do so now. Yet another probation report would not have led the trial court to a different conclusion. Its absence was harmless error.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. DUARTE , J.