Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Nos. PCF117734-03 & VCF161874, Glade F. Roper, Judge.
Erik Bruce, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Sarah J. Hopper, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
In case No. PCF117734-03 appellant, James Dwayne Breland, pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possession of a smoking device (Health & Saf. Code, § 11364). In case No. VCF161874, Breland pled to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of a smoking device and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)), and admitted a prior conviction enhancement. On February 20, 2008, the court sentenced Breland to an aggregate term of seven years eight months. On appeal, Breland contends the court prejudicially erred by failing to order a supplemental probation report prior to sentencing him. We will affirm.
FACTS
On October 21, 2003, Breland was a passenger in a car that was stopped by a Porterville police officer. During a search of Breland’s person, the officer found two baggies that contained methamphetamine weighing approximately .5 grams. The officer also found a vial containing methamphetamine and a glass pipe in a pocket located on the passenger’s side door (PCF117734-03).
On November 5, 2003, Breland entered his plea in case No. PCF117734-03.
On November 17, 2003, the court placed Breland on Proposition 36 probation for three years.
On December 30, 2003, Breland admitted violating his probation and probation was reinstated.
On April 11, 2005, Breland admitted a second violation of probation and probation was again reinstated.
On September 7, 2005, a Tulare County sheriff’s deputy stopped Breland for several traffic violations and arrested him after determining that Breland was under the influence of a controlled substance. The deputy searched Breland’s car and found a clear plastic bag containing two large chunks of methamphetamine weighing 11.1 grams and a glass smoking pipe (case No. VCF161874).
On August 18, 2006, Breland entered his plea in case No. VCF161874 and admitted violating his probation in case No. PCF117734-03 in exchange for a suspended, indicated sentence of seven years eight months in both cases.
On August 30, 2006, the court suspended imposition of sentence and placed Breland on probation for five years.
On March 14, 2007, after Breland admitted violating his probation by falsifying a drug test, the court reinstated probation and ordered him to return to court on March 19, 2007, so he could be remanded into custody.
On March 19, 2007, Breland appeared in court and asked for a continuance of the proceedings because his six-year-old son was scheduled for a tonsillectomy on March 21, 2007. The court continued the matter to March 28, 2007.
On March 28, 2007, Breland appeared in court and requested a continuance to care for his son. The court continued the matter to April 4, 2007.
On April 4, 2007, Breland again requested a continuance and the court continued the matter until April 11, 2007.
On April 11, 2007, Breland failed to appear in court.
On May 23, 2007, Breland was arrested for being under the influence of a controlled substance.
On August 23, 2007, the probation officer filed an affidavit alleging Breland violated his probation by failing to appear on April 11, 2007.
On November 7, 2007, at a probation violation hearing, Breland’s wife testified that a day or so before Breland’s April 11, 2007, court hearing, Breland suffered a painful insect bite on the hand that sickened him and made him unable to attend the April 11, 2007, hearing. Breland’s wife also testified that around that time Breland’s son was having problems resulting from his tonsillectomy and she was diagnosed as being bipolar. However, even though she was keeping up with all Breland’s court dates, she did not call the court to report that Breland would not be able to appear for the April 11, 2007, hearing. At the conclusion of the hearing, the court found that Breland violated his probation.
At Breland’s sentencing hearing on February 20, 2008, after the court disclosed its tentative decision to sentence Breland to the indicated sentence of seven years eight months, defense counsel argued for a term of six years eight months. The court responded that it had extended Breland “extreme leniency” in granting him probation because he had three prior felony convictions and was presumptively ineligible for probation. The court also noted that Breland had someone take a drug test for him and that after he was given the option of doing a residential treatment program or going to prison, instead of enrolling immediately, he asked the court to postpone his enrollment in the program several times because of his child’s medical problems. Thereafter, instead of returning to court as he agreed, Breland failed to appear and was subsequently arrested for being under the influence of a controlled substance. The court concluded that Breland had abused the leniency it had extended to him and that continuation on probation was inappropriate. The court then sentenced Breland to the indicated sentence of seven years eight months, the aggravated term of four years on his transportation conviction, a three-year prior conviction enhancement and an eight-month term on his possession of methamphetamine conviction.
The court did not have a probation report prepared for Breland’s sentencing hearing.
DISCUSSION
“[A] probation report is not necessarily required if defendant is statutorily ineligible for probation, for example, because of a prior strike. (See, e.g., People v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1432, 83 Cal.Rptr.2d 423; People v. Llamas (1998) 67 Cal.App.4th 35, 39-40, 78 Cal.Rptr.2d 759.) This is consistent with [Penal Code] section 1203, subdivision (b)(1), which provides in pertinent part that the trial court shall order a probation report ‘before judgment is pronounced’ for persons ‘convicted of a felony’ who are ‘eligible for probation.’ ….
“Statutory authority and the California Rules of Court specify the circumstances under which the trial court must prepare a supplemental or updated report. Section 1203.2, subdivision (b), requires referral to the probation officer, preparation of a written report, and its consideration by the court upon a petition for revocation of probation.” (People v. Dobbins (2005) 127 Cal.App.4th 176, 180.)
“Section 1203.2, subdivision (b), provides in part: ‘Upon its own motion or upon the petition of the probationer, probation officer or the district attorney of the county in which the probationer is supervised, the court may modify, revoke, or terminate the probation of the probationer pursuant to this subdivision. The court shall give notice of its motion, and the probation officer or the district attorney shall give notice of his or her petition to the probationer, his or her attorney of record, and the district attorney or the probation officer, as the case may be. The probationer shall give notice of his or her petition to the probation officer and notice of any motion or petition shall be given to the district attorney in all cases. The court shall refer its motion or the petition to the probation officer. After the receipt of a written report from the probation officer, the court shall read and consider the report and either its motion or the petition and may modify, revoke, or terminate the probation of the probationer upon the grounds set forth in subdivision (a) if the interests of justice so require.’ (Italics added.)”
“Because the alleged error [in failing to order a probation report] implicates only California statutory law, review is governed by the Watson harmless error standard. [Citations.] 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.]” (People v. Dobbins, supra, 127 Cal.App.4th p. 182.)
People v. Watson (1956) 46 Cal.2d 818.
Here, although Breland’s prior convictions restricted the court’s ability to grant him probation, he was nevertheless eligible if the court made a finding of unusual circumstances. (Pen. Code, § 1203, subd. (e)(4).) Since Breland was eligible for probation, the court erred by its failure to order and consider a probation report prior to sentencing him. However, the court’s error did not prejudice Breland.
As noted, Breland was ineligible for a continued grant of probation absent a finding of unusual circumstances. Prior to his February 20, 2008, sentencing hearing Breland had violated his probation three times in the instant matter, including once by having someone else take a drug test for him. He also failed to appear for sentencing on April 11, 2007, even after the court indulged him by granting him three continuances, ostensibly so he could take care of his son who underwent a tonsillectomy. Moreover, after missing this court date, Breland made no attempt to appear before the court to explain his absence that day and he continued to use drugs. Further, his failure to enroll in a drug program and his last arrest for being under the influence of a controlled substance clearly demonstrated that he had not benefited from previous grants of probation. Thus, it appears extremely unlikely the court would have opted to reinstate Breland’s probation instead of sentencing him to prison if it had considered a properly prepared probation report.
Breland contends a probation report would have verified his personal circumstances and made the court aware of his attempts to care for his sick child and fight off a severe insect bite. Thus, according to Breland, it is reasonably probable the court would have placed him on probation if the court had ordered and considered a probation report prior to sentencing him. We disagree.
Breland does not identify the specific circumstances surrounding his insect bite or the care he provided to his child that a probation report would have disclosed which he claims would have resulted in the court granting him probation. Further, the court was aware Breland was involved in caring for his son because that was the basis for the court to continue Breland’s sentencing hearing three times. The court was also aware from his wife’s testimony at the probation revocation hearing that Breland suffered a painful insect bite. Further, neither of these circumstances excused Breland’s failure to return to court to explain why he did not appear at his April 11, 2007, sentencing hearing. Accordingly, we conclude that the court’s failure to order a probation report and consider it prior to sentencing Breland was harmless.
DISPOSITION
The judgment is affirmed.