Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CL20206
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
After Abraham P. Gonzales served his two-year prison term, purportedly a middle term sentence for his conviction for selling base cocaine, the prison informed him and the trial court that the sentence was unauthorized: the correct middle term for the offense was four years. The court resentenced Gonzales to a four-year middle term and returned him to prison. At resentencing, the trial court had the discretion to place Gonzales on probation or to sentence him to any of the three prescribed prison terms. Consequently, the court’s failure to obtain a supplemental probation report before resentencing Gonzales was error. We conclude the error was prejudicial and reverse.
BACKGROUND
In July 1996, the Lake County District Attorney filed a complaint charging Gonzales with selling cocaine (Health & Saf. Code, § 11352, subd. (a)), based on a May 17, 1996 sale of 0.16 grams of base cocaine to an undercover officer. Gonzales pled guilty to the offense as charged and was released on his own recognizance. In a presentencing report, the probation department wrote that Gonzales was eligible for probation but recommended that he be sentenced to “the upper term of three (3) years.” In fact, a violation of Health and Safety Code section 11352, subdivision (a), was at all times relevant to this appeal punishable by three, four, or five years in prison. (Health & Saf. Code, § 11352, subd. (a); Stats. 1976, ch. 1139, § 67, pp. 5079-5080.) Gonzales failed to appear for sentencing on November 21, 1996, and a bench warrant was issued for his arrest.
On March 24, 2000, Gonzales called the court and asked that the matter be placed on calendar for sentencing. A sentencing hearing was scheduled for March 30, but Gonzales did not appear.
On January 20, 2002, Gonzales turned himself in. A supplemental probation report was ordered, and the matter was set for sentencing. The supplemental report stated that Gonzales was working as a construction laborer, supporting four children, and reportedly no longer using drugs. He acknowledged that he had exercised poor judgment in selling cocaine and said he had greatly matured since he committed the offense. The report recommended a grant of probation. At the February 22 sentencing hearing, the court suspended imposition of sentence and placed Gonzales on probation for three years.
On October 30, 2003, the probation department reported a violation of Gonzales’s probation. In Alameda County Superior Court, Gonzales had pled no contest to being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). Pursuant to a plea agreement, he was granted five years probation for that offense on the condition he serve 180 days in county jail through the work furlough program. On November 10, 2003, the Lake County Superior Court summarily revoked Gonzales’s probation and issued a warrant for Gonzales’s arrest.
On January 27, 2006, Gonzales appeared in Lake County Superior Court and denied the violation of probation. On April 21, he admitted violating probation by committing the Alameda County offense. A supplemental probation report reported facts Gonzales had not disclosed to probation during preparation of his 2002 supplemental report: he had been convicted in San Francisco County of felony possession of marijuana for sale in 1998 (Health & Saf. Code, § 11359), for which he received three years probation, and misdemeanor driving with a suspended license in 1999. Gonzales was gainfully employed, but he admitted recent cocaine use and, after initially denying cocaine use, admitted recent use when asked to submit to urinalysis. He also admitted that he had stopped reporting to probation in May 2005. Probation recommended “the upper term of three (3) years” in state prison.
The record does not disclose the reason for the three-year delay in holding this hearing.
At a June 2, 2006 sentencing hearing, the court sentenced Gonzales to two years in prison. The court commented that Gonzales had been lucky to get probation in the first place for a drug sale offense. Gonzales had committed the original offense while he was on probation for another crime; he had violated probation not only by committing the Alameda County offense but also by using drugs; and he had initially lied about his drug use. The court ruled: “I think although you don’t have a lengthy record that based on your conduct here that you used up your chances at probation . . . . [¶] However, I don’t feel in your case that the upper term is appropriate and the Court would impose the mid term in this case, and that would be two years instead of three years.”
As Gonzales was being released from prison in about April 2007, after completing his two-year term with credit for good conduct, prison officials informed him that he had been mistakenly sentenced to a two-year term, whereas the correct middle term was four years. He was ordered to appear in court for correction of sentencing. A minute order for an April 20, 2007 hearing refers to a February 2007 memorandum from the prison system, but the memorandum is not in the record.
At a May 25, 2007 hearing, the court stated, “This is a situation in which [Gonzales] was sentenced [to] an unauthorized sentence. The probation officer’s report indicated he should be sentenced to the mid term and put down that mid term as being two years, and at the time of sentencing the Court followed that; and there is no two-year term, that’s a three, four, and five term.” The court acknowledged that Gonzales had already served his two-year term. Defense counsel asked for any “remedy other than sending him back to prison. . . . [¶] . . . [¶] I don’t know if the court has the power to vacate the balance of the sentence. If the court did resentence him to low term, which would be three years, he would still owe another year.” The court noted that the 120 days within which it could recall the sentence had expired. “I think the only course that the court has available to it is to resentence the defendant at this point and give him credits for the time he’s served, obviously. [¶] And the court would be inclined to impose the low term of three years, which means he would get credit for the two that he served and then would have to serve approximately another six months.” Commenting that “the court has announced that basically the court’s hands are tied, so are mine,” defense counsel asked for a continuance so Gonzales could put his affairs in order. The court granted a continuance and also invited counsel to research the issue further. The court did not order a supplemental probation report.
The court referred to Penal Code section 1203, but we assume it misspoke and intended to refer to section 1170, subdivision (d), which governs recalls of sentences and imposes the 120-day limit. See also footnote 4
A minute order for a May 25, 2007 hearing states: “The Court and counsel for the People and the defense discuss the remedy to correct the error in the original sentencing (the defendant has served 2 years already in State Prison, but the lower term minimum was 3 years). The Court acknowledges that the California Penal Code would only allow the court to recall the sentence if it is addressed within a specific period of time from the date of the initial sentencing (which time has passed). Court and counsel believe there is no other remedy than to remand the defendant back to the California Department of Corrections to complete the additional term not yet served. (The Court indicates it is its’ [sic] intention to re-sentence the defendant to serve the low term of 3 years).”
At the continued hearing on June 29, 2007, defense counsel told the court, “I did some research . . . and I didn’t find anything that helped Mr. Gonzales, frankly. Just the opposite, to be honest. If you’re inadvertently released there’s no considered . . . .” Defense counsel did not complete this thought, but continued, “I do think that the court can suspend the balance of the sentence . . . and Mr. Gonzales has been doing quite well despite his inadvertent release of sentence.” The court then stated it did not believe it had the authority to suspend the balance of the sentence because more than 120 days had passed since pronouncement of judgment. Defense counsel again said he did not find anything helpful to Gonzales in his research. The court sentenced Gonzales as follows: “[T]hrough inadvertence the sentence imposed should have been four years and not two years. . . . [¶] . . . [T]he court is going to remand you to CDC to serve the balance of your sentence. Your sentence should have been imposed in the amount of four years.” In the context of requesting a delay in Gonzales’s remand so he could arrange his affairs, defense counsel stated, “I’ve spoken with him about the inevitability of this.”
The court then stated, “I’m not sure I have the authority to suspend the balance of the sentence under 1203[, subdivision](d). I can do that within 120 days of pronouncement of judgment, but we’re way beyond that.” We assume the court meant to refer to Penal Code section 1170, subdivision (d). See also footnote 2
DISCUSSION
It has long been settled law that an unauthorized sentence is subject to judicial correction whenever the error comes to the attention of a trial or reviewing court. (People v. Serrato (1973) 9 Cal.3d 753, 763 (Serrato), disapproved on another point by People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; In re Robinson (1956) 142 Cal.App.2d 484, 486.) Gonzales does not dispute the court’s power and duty to correct his unauthorized sentence. He argues the court erred by failing to obtain an updated probation report before resentencing him and that his trial attorney provided ineffective assistance of counsel in failing to urge the court to impose the low term on resentencing.
I. Scope of the Trial Court’s Discretion to Resentence Gonzales
In order to resolve this appeal, we must determine the scope of the trial court’s discretion to resentence Gonzales after it learned his original sentence was unauthorized. The parties do not clearly address this issue in their briefs. Gonzales argues the court had the same discretion it had at the original sentencing hearing, but he relies on a case addressing the court’s discretion on remand after an appellate court reverses a sentence, not the court’s discretion when correcting a sentence without an intervening appeal. (People v. Morales (2003) 106 Cal.App.4th 445, 457.) Moreover, Gonzales states that the trial court could have sentenced him to the low, middle, or upper term, but does not mention probation. For their part, the People suggest that the trial court’s discretion was limited: “The middle term was an appropriate sentence when it was imposed, appellant did not file an appeal at the time, and the term was for four years, not two years. The trial court was obligated to correct its own error and the court is not supposed to ‘reason backward’ to justify a preconceived result. (People v. Swanson (1983) 140 Cal.App.3d 571, 574.)”
When an unauthorized sentence has been imposed, “[s]uch a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.” (Serrato, supra, 9 Cal.3d at p. 764, fn. omitted.) This is contrary to the ordinary rule, based on state double jeopardy protections, that a more severe sentence cannot be imposed following a defendant’s successful appeal or motion for new trial. (Id. at pp. 763-764, citing People v. Henderson (1963) 60 Cal.2d 482; In re Ferguson (1965) 233 Cal.App.2d 79.) Unauthorized sentences are treated differently because they are void as having been imposed in excess of the court’s jurisdiction. (Serrato, at p. 765; People v. Chagolla (1983) 144 Cal.App.3d 422.)
Because the unauthorized sentence is void, the sentencing process begins anew. By way of analogy, when an appellate court reverses a sentence and remands for resentencing, the defendant is restored to his original position as if he had never been sentenced and is “entitled to all the normal procedures and rights available at the time judgment is pronounced.” (Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 744 (Van Velzer); People v. Mercant (1989) 216 Cal.App.3d 1192, 1195 (Mercant).) Similarly, when an appellate court reverses only one component of an aggregate sentence, the trial court on remand is “entitled to reconsider all of its sentencing choices,” including imposition of longer terms on components that were not attacked on appeal so as to maintain the original aggregate sentence. (People v. Savala (1983) 147 Cal.App.3d 63, 69 (Savala); see also People v. Kelly (1999) 72 Cal.App.4th 842 (Kelly), 846; contra People v. Drake (1981) 123 Cal.App.3d 59, 63-64 .) Van Velzer and Savala have been applied to resentencing in the trial court, without an intervening appellate decision. (Mercant, at p. 1195 [sentencing after three-year delay following defendant’s failure to appear for sentencing]; Kelly, at p. 844 [resentencing after CDC informed trial court of error]; People v. Hill (1986) 185 Cal.App.3d 831, 834 [same]; People v. Stevens (1988) 205 Cal.App.3d 1452, 1455-1456 (Stevens) [resentencing after trial court realized its own error]; People v. Castaneda (1999) 75 Cal.App.4th 611, 613-614 [circumstances unexplained].) We see no reason the broad principle set forth in Van Velzer would not also apply in the circumstances of this case.
Indeed, the facts of the case before us demonstrate the difficulty arising from a rule that would prevent the trial court from resentencing a defendant to a greater sentence following an unlawful, original sentence. Here, Gonzales was originally sentenced to two years in prison—a term not provided for by statute and less than any of the prescribed terms. If the trial court could not resentence Gonzales to a term greater than the original two years, the court would be barred from sentencing him to prison and would be required to grant him probation. Although Gonzales is eligible for probation, many defendants are not. In similar circumstances, a trial court faced with a defendant ineligible for probation would be prevented from sentencing that defendant to prison and from placing him on probation—apparently requiring a dismissal of the action. Thus, a lawfully convicted defendant would escape any sanction because of the court’s original error—an irrational result which we conclude is not required by law.
To this extent, we distinguish People v. Torres (2008) 163 Cal.App.4th 1420 (Torres), a case recently decided by our colleagues in the Fifth District. In that matter, Torres was convicted of attempting to dissuade a witness (Pen. Code, § 136.1, subd. (a)(2)) and criminal threats (Pen. Code, § 422); as to each count, a street gang enhancement was found true (Pen. Code, § 186.22, subds. (b)(C)(4) & (b)(1)(B)). (Torres, at pp. 1421-1422.) The state prison triad for each crime is 16 months, two years or three years. However, the gang enhancement increased the sentence for dissuading a witness to seven years to life and, as to criminal threats, added five years to the sentence. In light of the serious nature of the behavior, the trial court was not willing to grant probation. However, because of Torres’s lack of a prior record, the court was reluctant to sentence him to seven years to life. The court also recognized that there were insufficient aggravating circumstances to justify selecting the aggravated term. The court found the requisite unusual circumstances in order to strike the gang enhancements. Then, after obtaining a tacit concession from defense counsel not to object to the absence of aggravating circumstances, the court imposed an aggravated term of seven years for the criminal threats—a term which does not exist─and stayed the midterm for dissuading a witness. Neither side appealed from that judgment, despite the obviously unlawful sentence. Subsequently, the Department of Corrections informed the court that Torres’s sentence was unlawful. The court resentenced Torres to a term of seven years to life.
The appellate court reversed, noting that Torres’s original sentence of seven years, though arrived at unlawfully, could have been reached lawfully by simply striking the gang enhancement as to the charge of dissuading a witness and imposing the five-year gang enhancement in conjunction with the two-year midterm for criminal threats. The trial court was apparently unaware of its ability to strike the enhancement as to some but not all counts. Because the aggregate sentence originally imposed was not unlawful, the appellate court concluded: “Principles of double jeopardy as well as the mandate of section 1170, subdivision (d) require that under these circumstances the trial court may not impose a sentence longer than originally imposed.” (Torres, supra, 163 Cal.App.4th at pp. 1432-1433, italics added.) The holding of Torres is limited to its peculiar facts and the obvious fortuity that the gang enhancement was only five years, thus making a seven-year term possible upon resentencing.
The Torres court cited the case of People v. Mustafaa (1994) 22 Cal.App.4th 1305 (Mustafaa). (Torres, supra, 163 Cal.App.4th at p. 1432.) There, the trial court sentenced the defendant to eight years in prison for robbery and a gun-use enhancement. The court then sentenced him concurrently for two other robberies but erroneously imposed gun-use enhancements for those robberies consecutively to the principal term. Along with other counts, the defendant’s original sentence was 17 years, 4 months. The appellate court remanded for resentencing and ordered that the new sentence not exceed 17 years, 4 months, finding that “the rule against double jeopardy applies because the court imposed a legal aggregate sentence, only fashioning it in an unauthorized manner.” (Mustafaa, at pp. 1311-1312.) The court in Mustafaa reached this conclusion without analysis and without citation to supporting authority. Moreover, we decline to follow Mustafaa because, in the case before us, the “aggregate” sentence originally imposed was not a legal one.
We do not believe the court’s power to correct an unauthorized sentence is restricted by Penal Code section 1170, subdivision (d) (section 1170(d)), as the trial court suggested during the May 25 and June 29, 2007 hearings. Section 1170(d) provides: “[T]he court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.” The statute restricts the court’s authority to resentence a defendant in three ways: by providing the sentence may be recalled only on the court’s own motion or on the recommendation of prison or parole authorities; by limiting the time within which the court can recall the sentence on its own motion; and by preventing the court from imposing a greater sentence. The case law on a court’s power to correct an unauthorized sentence, however, provides that an unauthorized sentence is subject to correction “whenever the error came to the attention of the trial court or a reviewing court,” that the People or the defendant can move for correction of the sentence, and that the court may impose a more severe sentence on resentencing. (Serrato, supra, 9 Cal.3d at pp. 763, 764; In re Sandel (1966) 64 Cal.2d 412, 417, 418-419.) Because an unauthorized sentence is void for having been imposed in excess of the court’s jurisdiction, it logically follows that it is subject to attack at any time. (See People v. Scott (1994) 9 Cal.4th 331, 354.) We construe these authorities as acknowledging a court’s inherent power to correct such a sentence, unrestricted by statute. Although one court of appeal has suggested in two published decisions that section 1170(d) applies to a trial court’s correction of an unauthorized sentence, in each case the court’s discussion of section 1170(d) was dicta. (See People v. Hill, supra, 185 Cal.App.3d at p. 833, fn. 3 [court resentenced defendant after notification by the then Department of Corrections, the parties agreed section 1170(d) applied, and the court did not impose a greater sentence]; Stevens, supra, 205 Cal.App.3d at pp. 1457-1458 [court resentenced defendant within six days and did not impose a sentence greater than the original].) We do not follow them.
See footnotes 2.
Citing People v. Swanson, the People suggest that it would have been an abuse of discretion for the trial court not to resentence Gonzales to the middle term, having previously found the middle term was appropriate. Swanson criticized a trial court for imposing an upper term sentence, despite the fact that it expressly found the aggravating and mitigating factors were in equipoise, because the court considered the middle term too short. (People v. Swanson, supra, 140 Cal.App.3d at p. 573.) “It requires no citation of authority that a sentencing judge is required to base his decision on the statutory and rule criteria . . . and not on his subjective feeling about whether the sentence thus arrived at seems too long, too short, or just right. He is not permitted to reason backward to justify a particular length sentence which he arbitrarily determines.” (Id. at p. 574.) This broad language in Swanson has been roundly criticized. The prevailing view today is that a trial court may legitimately consider the length of the resulting sentence as long as it also conscientiously applies the statutory and rule sentencing criteria. (Stevens, supra, 205 Cal.App.3d at p. 1457; Kelly, supra, 72 Cal.App.4th at pp. 846-847; People v. Calderon (1993) 20 Cal.App.4th 82, 87-88; see also Savala, supra, 147 Cal.App.3d at p. 70.)
In sum, we conclude that the trial court had full discretion to resentence Gonzales after setting aside his unlawful two-year prison sentence. The court could have reinstated him on probation or sentenced him to the low, middle, or upper term for the offense.
II. Failure to Order Supplemental Probation Report
Gonzales argues the trial court erred by not ordering a supplemental probation report before correcting his sentence.
When a defendant is eligible for probation, he is ordinarily entitled to a supplemental probation report whenever a new sentence will be pronounced, such as on remand after a sentence is reversed on appeal (People v. Rojas (1962) 57 Cal.2d 676, 682 [construing former § 1203, now § 1203, subd. (b)(1)]; People v. Cooper (1984) 153 Cal.App.3d 480, 482-483; People v. Mariano (1983) 144 Cal.App.3d 814, 821-822 [defendant potentially eligible for probation if court found unusual circumstances]); on sentencing following a delay caused by the defendant’s failure to appear at the original sentencing hearing (Mercant, supra, 216 Cal.App.3d at p. 1195); and on sentencing after revocation of probation (People v. Dobbins (2005) 127 Cal.App.4th 176, 180-181).
A. Forfeiture
As a preliminary matter, the People argue Gonzales forfeited his right to a supplemental report by failing to raise the issue in the trial court. When a defendant is eligible for probation, however, a supplemental report is mandatory and can only be waived expressly by written stipulation or oral statement in court; the right to a supplemental report cannot be forfeited by a failure to object. (Pen. Code, § 1203, subd. (b)(4) ; People v. Dobbins, supra, 127 Cal.App.4th at pp. 181-182.) The People’s cases are distinguishable because, in them, the defendants were not eligible for probation (and consequently a supplemental probation report was discretionary and subject to forfeiture for failure to raise the issue below) or because section 1203, subdivision (b)(4) otherwise did not apply. (People v. Myers (1999) 69 Cal.App.4th 305, 308, 311 [three strikes defendant]; People v. Llamas (1998) 67 Cal.App.4th 35, 39 [ineligible for probation]; People v. Scott, supra, 9 Cal.4th at p. 354 [holding generally that sentencing errors are subject to forfeiture].)
Forfeiture is the failure to make the timely assertion of a right, whereas waiver is the intentional relinquishment of a right. (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.)
All further statutory references are to the Penal Code unless otherwise indicated.
Without citation to authority, the People contend section 1203, subdivision (b)(4) applies only to an original probation report. By its plain language, section 1203, subdivision (b)(4) applies to the preparation and consideration of “the report.” Section 1203, subdivision (b)(1) describes only one report: “before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court. . . .” In People v. Rojas, the Supreme Court interpreted this language, which has not been substantively changed since Rojas was decided (People v. Cooper, supra, 153 Cal.App.3d at pp. 482-483), to require a supplemental report upon resentencing on remand because a new judgment was going to be pronounced. (People v. Rojas, supra, 57 Cal.2d at p. 682.) In that situation, the supplemental report is “the report” referred to in section 1203, subdivision (b)(4), and the defendant’s entitlement to the report is subject only to express waiver.
The People cite no evidence that Gonzales expressly waived his right to a supplemental report. The issue has not been waived or forfeited.
B. Failure to Obtain Supplemental Report
A supplemental report is required because it provides the court with current information relevant to its exercise of discretion on resentencing. (People v. Rojas, supra, 57 Cal.2d at p. 682; cf. People v. Ware (1966) 241 Cal.App.2d 143, 145 [where there is only one legally permissible disposition, supplemental report is unnecessary].) The report provides information relevant not only to the grant or denial of probation, but also to the length of the defendant’s sentence, specifically whether the low, middle, or upper term should be imposed and, in cases involving multiple counts, whether sentences should run concurrently or consecutively. (People v. Brady (1984) 162 Cal.App.3d 1, 6, criticized on other grounds by People v. Webb (1986) 186 Cal.App.3d 401, 409; People v. Tatlis (1991) 230 Cal.App.3d 1266, 1273.) “The report presents information in a cohesive fashion, facilitating the task of weighing newly revealed mitigating factors in the balance.” (Tatlis, at p. 1273.)
California Rules of Court, rule 4.411 requires the court to order a supplemental report whenever a “significant period of time” has passed since the original report was prepared. (Rule 4.411(c).) The Advisory Committee comment to the rule states that a new report is unnecessary only “if a recent report is available and can be incorporated by reference and there is no indication of changed circumstances.” (Advisory Com. com., West’s Cal. Rules of Court (2006 ed.) foll. rule 4.411, p. 236.)
All rule references are to the California Rules of Court.
The People argue Rule 4.411 is intended only to apply to resentencing on remand from the court of appeal. The Advisory Committee comment, however, expressly provides that the rule also applies to other situations where sentencing was delayed in the trial court: “Subdivision (c) is based on case law that generally requires a supplemental report if the defendant is to be resentenced a significant time after the original sentencing, as, for example, after a remand by an appellate court, or after the apprehension of a defendant who failed to appear at sentencing. The rule is not intended to expand on the requirements of those cases.” (Rule 4.411 Advisory Com. com. p. 236, italics added.) As explained above, we conclude that the case law requiring preparation of supplemental probation reports applies to circumstances where the trial court resentences a defendant after setting aside its original sentence as unauthorized by law.
In this case, because the court had the discretion to resentence Gonzales to the low, middle, or upper term or to reinstate him on probation after setting aside his unauthorized sentence, a supplemental probation report was required. More than one year had passed since Gonzales was originally sentenced to a two-year term. Although he was incarcerated throughout that period, his conduct in prison might have affected the court’s decision whether to reinstate him on probation rather than reimpose a prison sentence. The court could have taken the conduct into consideration in deciding whether Gonzales was able to comply with probation conditions as of June 2007, in assessing the likely effect of imprisonment on Gonzales and his dependents, in determining whether Gonzales was remorseful, and in evaluating the likelihood that if not imprisoned Gonzales would be a danger to others. (Rule 4.414(b)(4), (5), (7), (8).) Moreover, the list of criteria in rule 4.414 is nonexhaustive, and the court may have found Gonzales’s conduct in prison otherwise relevant to its decision whether to reinstate him on probation as of June 2007.
With respect to the length of a new prison term, Gonzales’s conduct in the period after he was first sentenced to prison was not directly relevant because Gonzales was being sentenced after a revocation of probation. As Gonzales acknowledges in a different context, in determining the length of his prison sentence following the revocation of probation, a court cannot consider the defendant’s conduct after the initial grant of probation or, if the defendant had been previously reinstated on probation, after the reinstatement. (Rule 4.435(b)(1); People v. Harris (1990) 226 Cal.App.3d 141, 145.) A supplemental report nevertheless would have been useful to the court in resentencing Gonzales, even if it chose to reimpose a prison sentence. The report would have set forth the trial court’s sentencing options. (Rule 4.411.5(a)(8).) We presume that the probation department would have correctly applied the law when preparing a supplemental report. (Cf. Evid. Code, § 664.) That is, the probation department would have informed the court it had full discretion to resentence Gonzales, including reinstatement on probation or the imposition of a low, middle, or upper term. The record suggests that the court was not certain of the scope of its discretion on resentencing Gonzales and might not have realized that it had the discretion to reinstate him on probation or sentence him to the low term.
Because a significant amount of time had passed since preparation of the original probation report and because a supplemental report would have provided the trial court with information useful to its exercise of sentencing discretion on resentencing Gonzales in June 2007, the court erred by failing to obtain a supplemental report before resentencing Gonzales.
C. Prejudice
We reverse for failure to prepare a supplemental probation report if there is a reasonable probability of a more favorable result absent the error. (People v. Dobbins, supra, 127 Cal.App.4th at p. 182.) Gonzales has established prejudice here.
First, as noted previously, the record suggests that the trial court did not understand that it had full discretion to impose any lawful sentence upon setting aside Gonzales’s unauthorized two-year prison sentence, including reinstating him on probation or imposing the low term. A supplemental report should have clarified this issue for the court.
Second, the court showed an inclination to grant Gonzales some leniency. Therefore, had it known it had the option of reinstating Gonzales on probation or sentencing him to the low term and had it had information about his conduct in prison, it is reasonably probable Gonzales’s sentence would have been more favorable than the four-year prison sentence he received. At the May 25, 2007 hearing, the court said it was inclined to impose the low term and it responded to defense counsel’s requests to suspend the remainder of Gonzales’s sentence with statements that it did not believe it had the power to do so, not that it felt a suspension was unwarranted. Defense counsel did not urge the court to place Gonzales on probation or to sentence him to the low term. On the contrary, counsel essentially conceded the court’s only option was to resentence Gonzales to the four-year middle term by agreeing with the court’s comment that its hands were tied and by telling the court he had told Gonzales that imposition of the four-year middle term was inevitable.
Because we reverse based on the failure to obtain a supplemental probation report, we need not address Gonzales’s argument that he received ineffective assistance of counsel when his trial attorney failed to argue for imposition of the low term.
DISPOSITION
The judgment is reversed. On remand, the trial court shall obtain a supplemental probation report before resentencing Gonzales.
We concur: SIMONS, ACTING P. J., NEEDHAM, J.