Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF107091A
RAYE, J.The Attorney General concedes the trial court erred by failing to order and consider a supplemental probation report before sending defendant Stephen Joseph Aguirre to state prison for a three-year term. (Pen. Code, § 1203, subds. (b)(1) & (4); Cal. Rules of Court, rule 4.411(c).) The sole issue on appeal is whether the error was harmless. (People v. Dobbins (2005) 127 Cal.App.4th 176, 182 (Dobbins).)
BACKGROUND
In December 2008 defendant pushed his girlfriend to the ground, pointed a dart gun and a knife at her, and threatened to kill her. Her knee was injured during the assault. Defendant entered a plea of guilty to injuring a spouse/cohabitant. (Pen. Code, § 273.5, subd. (a).) As part of his negotiated plea, he agreed to participate in a substance abuse program, abstain from alcohol, stay away from his girlfriend, and not to possess or use any deadly weapons or firearms.
Defendant violated the terms of his probation on multiple occasions. He admitted to violating the stay-away order in April 2008 and to violating the abstinence from alcohol condition in October 2008.
On December 8 his then ex-girlfriend heard defendant screaming 30 feet outside her apartment window, “[I]f you’re with anybody or you’re with... Mr. Verdugo... I’m going to kill you.” After going to the window and seeing that he appeared drunk, she called the police and he was apprehended. He called her at her home several times from the jail. A violation of probation petition was filed alleging defendant made criminal threats (Pen. Code, § 422) and violated the stay-away order (Pen. Code, § 166, subd. (c)(4)). Following a formal violation of probation hearing on yet another violation and a preliminary hearing on the December 8 incident, the court denied probation and sentenced defendant to the middle term of three years in state prison with credit for 203 actual days served plus 100 days’ statutory credit.
DISCUSSION
In Dobbins, supra, 127 Cal.App.4th 176, we explained: “We perceive no federal constitutional right to a supplemental probation report. 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 [299 P.2d 243]; see also People v. Mower (2002) 28 Cal.4th 457, 484 [122 Cal.Rptr.2d 326, 49 P.3d 1067].) That is, we shall not reverse unless there is a reasonable probability of a result more favorable to defendant if not for the error.” (Dobbins, at p. 182.) We concluded the lack of a probation report was harmless because the original report apprised the trial court of the defendant’s history, including parole violations and lengthy periods of incarceration, the sentencing judge was the same judge who conducted the violation hearing and was intimately familiar with the facts surrounding the violation, and there was no justification to support a reinstatement of probation. (Id. at p. 183.)
Defendant attempts to distinguish Dobbins. He contends the error in Dobbins did not necessitate a remand for an additional probation report because the initial probation report had been prepared only two months earlier. Additionally, according to defendant, the Dobbins trial court had a performance report prepared pursuant to Proposition 36. We disagree that the Dobbins facts are materially different from those before us.
Like the defendant in Dobbins, defendant here cannot comply with the conditions of his probation. At his revocation hearing, his lawyer told the court his client had an “awful” alcohol problem. Within one year, he violated his probation at least three times and continued to harass and threaten his ex-girlfriend, who testified to her ongoing emotional trauma and fear.
Also like Dobbins, the court did have information about defendant’s progress, albeit not in the form of the required probation report. A probation officer filed a memorandum on October 21, 2008, regarding the second probation violation. San Joaquin County Behavioral Health Services also filed three letters with the court in November and December 2008. The probation officer’s memorandum and the letters all confirm that defendant had an ongoing problem with alcohol.
And finally, as in Dobbins, defendant did not present any evidence to the trial court or any argument on appeal that justifies a continuation of probation. In short, there is absolutely nothing in the record to suggest that the result of a remand would be any different than the sentence ordered by the trial court. We reject defendant’s argument, contrary to our opinion in Dobbins, that the failure to obtain a supplemental probation report on its face compels reversal and a remand for resentencing. Defendant has been afforded multiple opportunities to conform his behavior to the conditions to which he agreed. His inability to comply with the terms of probation now necessitates a prison term. The trial court’s failure to obtain a supplemental probation report constitutes harmless error.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., BUTZ, J.