Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. Nos. SCS214676 Peter E. Riddle, Judge. (Retired Judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
McINTYRE, J.
Hani Habib appeals a judgment entered after the trial court revoked his probation and sentenced him to eight years in prison. He contends that the court abused its discretion when it refused to order a Penal Code section 1203.03 diagnostic study or allow his brother's testimony at the probation revocation hearing. (All undesignated statutory references are to the Penal Code.) We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2007, Habib and four cohorts stopped the victim as the victim rode past them on his bicycle. The men proceeded to punch and kick the victim until he lost consciousness, then stole his bicycle and wallet. Ultimately, Habib pleaded guilty to battery resulting in the infliction of serious bodily harm, and admitted a gang enhancement and that he personally inflicted great bodily injury upon the victim. In accordance with the plea agreement, the trial court imposed and stayed the execution of an eight-year prison term, ordered Habib to serve 365 days in county jail, and placed him on formal probation under certain conditions, including that he abstain from using alcohol and comply with a curfew set by the probation officer. In June 2008, Habib was released from custody. The following month the San Diego County Probation Department issued a notice to show cause why probation should not be revoked.
At the contested probation revocation hearing, Chula Vista Police Officer Paul Tseko-Biffle, a member of the street gang suppression unit, testified that at about 9:00 p.m. on July 25, 2008, he contacted Habib on a street in Chula Vista and noticed that Habib smelled of alcohol. At the time of the encounter Officer Tseko-Biffle was familiar with Habib and knew of his probation conditions. Habib admitted to the officer that he had recently finished drinking a 32 ounce beer and he knew that using alcohol and being out after his 8:00 p.m. curfew violated the conditions of his probation.
Habib's probation officer testified that she met with Habib for about one-half hour when he was placed on probation to advise him of his probation conditions, including the 8:00 p.m. curfew and that he not use any alcohol. The probation officer had no concerns regarding Habib's ability to understand his probation conditions. Habib told the probation officer that he understood the conditions and signed a form to that effect.
At the end of the hearing, defense counsel informed the court that the probation report prepared for Habib's initial sentencing hearing recommended a diagnostic study under section 1203.03 to evaluate Habib's suitability for probation or prison, but that the study had not been conducted. After the trial court denied defense counsel's request to continue the hearing to allow such a study, defense counsel asked that Habib's brother be allowed to testify regarding his personal knowledge of Habib's mental condition. The court denied the request because the brother did not qualify as an expert. The court then vacated suspension of Habib's eight-year sentence. Habib timely appealed.
DISCUSSION
I. Diagnostic Study
The trial court may order a defendant placed in a diagnostic facility for up to 90 days when it concludes that a diagnostic study is essential to a just disposition of the case. (§ 1203.03, subd. (a); People v. Peace (1980) 107 Cal.App.3d 996, 1001.) The purpose of the study is to obtain social and psychological information relevant to sentencing. (People v. Myers (1984) 157 Cal.App.3d 1162, 1169.) We review the trial court's decision regarding the propriety of a diagnostic study for abuse of discretion. (People v. Peace, supra, 107 Cal.App.3d at p. 1002.)
Habib contends the trial court abused its discretion in failing to order a diagnostic study before revoking his probation. The record does not support this assertion.
Defense counsel expressed no concern regarding Habib's ability to understand his plea agreement at the change of plea hearing and the trial court ultimately found that Habib's guilty plea was knowing and intelligent. The probation report prepared for the initial sentencing hearing indicated that Habib had been diagnosed with learning disabilities at age 9 and that he had attended special education classes and had completed the eleventh grade. The probation officer noted that Habib "appeared to have comprehension problems" and recommended a diagnostic study because he had to repeat or rephrase certain questions before Habib understood them. Defense counsel, however, did not request a diagnostic study at the initial sentencing hearing and Habib later told the court that he understood the terms of his sentence.
This record reveals that while the probation officer believed that Habib's comprehension problems warranted a diagnostic study, the trial court and defense counsel (at least initially) did not share this belief. In any event, the testimony of Habib's probation officer and Officer Tseko-Biffle show that Habib understood his probation conditions, undercutting Habib's argument to the contrary. Under these circumstances, the trial court reasonably concluded that a diagnostic study was not necessary for a just disposition of the matter.
II. Testimony of Habib's Brother
A qualified lay witness may give an opinion as to sanity, or as to a mental condition less than sanity. (People v. DeSantis (1992) 2 Cal.4th 1198, 1228; People v. Webb (1956) 143 Cal.App.2d 402, 412.) Admission of lay opinion testimony is within the trial court's discretion, which will not be disturbed unless a clear abuse of discretion appears. (People v. Mixon (1982) 129 Cal.App.3d 118, 127.)
Habib contends the trial court abused its discretion when it refused to consider his brother's testimony because his brother had personal knowledge of his mental condition and did not need to qualify as an expert. While we agree that the trial court erred when it concluded that the brother needed to qualify as an expert before he could testify, we conclude the error was harmless based on the evidence showing Habib understood his probation conditions. Thus, the brother's testimony regarding Habib's mental condition would have been of little value, and Habib suffered no prejudice when the trial court declined to hear it.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., IRION, J.