Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. S520759B
Margulies, J.
Defendant was placed on Proposition 36 probation after pleading no contest to possession of heroin. Less than five months later, he was arrested after he was found in possession of recently stolen property and charged with violating the conditions of his probation. The trial court found defendant had violated his probation and sentenced him to the mitigated term for the drug possession offense.
Defendant contends that (1) the trial court erred in failing to order the preparation of a supplemental probation report in connection with the probation violation, (2) the evidence was insufficient to support a finding that he had received stolen property, (3) the court failed to exercise its discretion to consider reinstating defendant’s probation, and (4) he received ineffective assistance of counsel. We affirm.
I. BACKGROUND
On July 17, 2006, defendant was charged in an amended complaint with possession of heroin. (Health & Saf. Code, § 11350, subd. (a).) The complaint alleged that defendant had suffered six prior felony convictions, two prior strikes, and two prior prison terms. (Pen. Code, §§ 667, subd. (e)(1); 667.5, subd. (b); 1170.12, subd. (c)(1).) The next day, defendant pleaded no contest to the possession charge and was placed on formal probation under Proposition 36, which provides for substance abuse treatment for persons convicted of nonviolent drug possession offenses. (Pen. Code, § 1210.1; see In re Taylor (2003) 105 Cal.App.4th 1394, 1397–1398.) Defendant was given a 36-month term of probation, referred to a drug treatment program, and told to contact the probation department for the preparation of a probation report.
A probation report was filed on September 5, 2006. The report detailed defendant’s prior record and described the nature of his crime and his general history. The probation report noted that defendant’s prior performance on probation had been unsatisfactory but concurred, nonetheless, with the decision to grant defendant Proposition 36 probation. That day, the court adopted the recommendations of the probation report. The court noted that defendant had received a “[g]ood report” from the drug treatment program since his admission.
At an October 3 hearing scheduled to monitor defendant’s progress, the treatment program continued to give him good marks, as did a progress report provided to the court on December 1. The progress report stated that a November 30 drug test was clean.
A few days later, on December 6, the district attorney filed a petition to revoke defendant’s probation. The petition alleged that defendant violated his probation on December 3, when he was caught carrying property recently stolen from a vehicle, which the petition characterized as a violation of Penal Code section 496. Defendant’s probation was revoked, and he was remanded into custody.
Defendant agreed to submit the adjudication of his probation violation on the basis of two documents, the police report prepared at the time of the incident and the report of an interview the public defender’s office conducted two months after the incident with an acquaintance of defendant. The police report contained statements by the victims, the police, and defendant. According to the two victims, they parked their car about 11:10 a.m. at the corner of 12th Street and Jefferson in Oakland and went for a bike ride. When they returned at 4:30 p.m., they noticed that the car’s right rear window was shattered. A “print making box” and a backpack had been stolen. The pair cleaned up as much of the broken glass as they could and drove away. As they drove, they saw two men, one carrying the stolen print box and the other carrying the stolen backpack. The victims began to follow the two men and called the police. The police received the call about 5:00 p.m. and drove to a local park, where one of the victims directed them to the two men. The police approached the men, who were later identified as defendant and Dwayne Murphy. As police approached Murphy, he “sat a gray box on a table and walked away.” The police found heroin in Murphy’s shoe and detained the pair.
Defendant told the police that 45 minutes before he was detained he had been at the corner of 12th and Brush Streets with Murphy. A “guy I’ve seen in the neighborhood, but who I don’t know” sold defendant the print box and backpack for $13. When defendant asked the person whether the goods were stolen, he was told they were not. Murphy helped defendant carry the materials “back to the park,” where the two were detained by police.
Defendant’s acquaintance, who lived in defendant’s neighborhood and had known defendant for about 10 years, told the interviewer that defendant and Murphy came to his house on 12th Street in Oakland between 3:00 and 4:00 p.m. the day of the incident. As the three sat on his front porch and talked, an “unknown man” walked past the house, stopped, and said, “Hey y’all, I got some stuff here. You wanna check it out?” Defendant and Murphy walked to the sidewalk to look, and defendant bought some type of heater or fan. Ten to fifteen minutes later, the man returned with more items. This time, defendant purchased a printing press machine, and the man gave defendant a backpack for free. There was no discussion of whether the goods were stolen. The man left. Afterwards, Murphy offered to help defendant carry the purchased materials home.
After considering the submitted evidence and hearing arguments, the trial court found defendant had violated his probation. The court concluded that the burglary from the car must have occurred shortly before defendant and Murphy were seen with the property and that defendant’s and Murphy’s attempts to “distance themselves” from the property provided evidence that they knew the property was stolen. When the court raised the issue of sentencing, he suggested to counsel that defendant “is on probation for [a violation of Health and Safety Code section] 11350, which has [statutory sentences of] sixteen [months], two [years, and] three [years,] so we start out at two years State Prison.” After defense counsel argued that defendant should be given the mitigated term because of his successful performance on probation up to the time of the offense, the court concluded, “I will go down to 16 months State Prison, primarily on the information supplied by [defense counsel], that [defendant] was doing well on Prop. 36.”
II. DISCUSSION
A. Supplemental Probation Report
Defendant first argues that the trial court erred in failing to require the preparation of a supplemental probation report.
The provision of a supplemental probation report is governed by California Rules of Court, rule 4.411(c), which states, “The court must order a supplemental probation officer’s report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared.” The accompanying Advisory Committee Comment explains that “[s]ubdivision (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. [¶] The rule does not require a new investigation and report if a recent report is available and can be incorporated by reference and there is no indication of changed circumstances. This is particularly true if a report is needed only for the Department of Corrections and Rehabilitation because the defendant has waived a report and agreed to a prison sentence. If a full report was prepared in another case in the same or another jurisdiction within the preceeding [sic] six months, during which time the defendant was in custody, and that report is available to the Department of Corrections and Rehabilitation, it is unlikely that a new investigation is needed.”
Defendant relies heavily on People v. Dobbins (2005) 127 Cal.App.4th 176 (Dobbins), which also featured a defendant on Proposition 36 probation. (Id. at p. 178.) The initial probation report on the Dobbins defendant was prepared on July 17. On September 25, he was arrested and charged with a new offense. The defendant then remained in custody until trial, when it was determined that he violated his probation. (Id. at pp. 178–179.) He was sentenced at a hearing that occurred eight months after the probation report had been prepared. (Id. at p. 180.) On appeal, the court held that it was error not to order a new report given the lapse of time, which “included approximately two months when defendant was not under the watchful eyes of custodial authorities but was rather released on probation, when he committed the conduct for which his probation was revoked.” (Id. at p. 181.) Nonetheless, the court affirmed the defendant’s sentence after concluding that the failure to order a new probation report was harmless error under the standard of People v. Watson (1956) 46 Cal.2d 818. (Dobbins, at pp. 182–183.) As defendant points out, there are similarities between his situation and that described in Dobbins. Although defendant’s new sentencing occurred only six months after the preparation of the probation report, he spent an even longer period than the Dobbins defendant free from “the watchful eyes of custodial authorities” on probation—three months versus two months.
We need not resolve the issue of whether a supplemental probation report was required, however, for we agree with Dobbins that the failure to order a supplemental probation report is subject to harmless error analysis, and we find no prejudice here. Defendant does not suggest any favorable information that would have been included in a supplemental probation report of which the court was unaware at the time of sentencing. The only information mentioned by defendant, his “progress on probation,” was reported to the trial court in progress reports from the treatment program and was argued to the court by defense counsel. It was just this progress that caused the trial court to select the mitigated, rather than the middle term as a sentence. Because defendant suggests no other factors that might have been included in a supplemental probation report and led to a different sentence, we find no prejudice to defendant from the failure to order a supplemental report.
B. Sufficiency of the Evidence
Defendant argues that there was insufficient evidence to support the trial court’s finding that defendant had committed the offense of receiving stolen property.
“Proof of the crime of receiving stolen property requires establishing that the property in question was stolen, that the defendant was in possession of it, and that the defendant knew the property to be stolen.” (People v. Anderson (1989) 210 Cal.App.3d 414, 420.) “The knowledge element of receiving stolen property is normally proved not by direct evidence but by an inference from circumstantial evidence.” (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1019.) Where a defendant is found in conscious possession of recently stolen property, an inference of guilt is permissible if at least slight corroborating evidence exists in the form of statements or conduct tending to show the defendant’s guilt. (People v. McFarland (1962) 58 Cal.2d 748, 754; People v. Anderson, at p. 421 [“proof of knowing possession by a defendant of recently stolen property raises a strong inference of . . . the defendant’s knowledge of the tainted nature of the property. This inference is so substantial that only ‘slight’ additional corroborating evidence need be adduced in order to permit a finding of guilty”].) The trier of fact must determine whether the inference should be drawn in light of all the evidence. (People v. McFarland, at p. 755.)
Defendant argues that there was insufficient evidence to support the court’s conclusion that he was aware that the goods were stolen. The trial court was required to find a violation of probation only by a preponderance of the evidence, rather than by the evidentiary standard applicable to a criminal conviction. (People v. Rodriquez (1990) 51 Cal.3d 437, 441.) We review the record for substantial evidence to support the trial court’s decision. (People v. Arreola (1994) 7 Cal.4th 1144, 1161.)
There is no doubt that defendant was in possession of recently stolen property. The property he and Murphy were carrying was taken in the general vicinity of their location no more than five hours earlier. The “ ‘slight’ additional corroborating evidence” (People v. Anderson, supra, 210 Cal.App.3d at p. 421) necessary to support a finding that he knew the property was stolen is provided by Murphy’s attempt to walk away from the property when police approached, a gesture distinct enough to catch the arresting officer’s attention. There would have been no reason for Murphy to attempt to separate himself from the property unless he was aware the property was stolen. Because, by defendant’s own account, he was with Murphy when the two acquired the property, it is proper to infer from this circumstance that defendant knew the property was stolen.
Defendant’s argument to the contrary is based largely on the report of the interview with defendant’s acquaintance. The trial court was free to disregard that interview, which was provided two months after the events in question by a man who had known defendant for 10 years. Further, the discrepancies between that account and defendant’s statement to the police call into question the credibility of both. Defendant told police he was at the corner of 12th and Brush Streets when he was sold the property, making no mention of the acquaintance or his home. The acquaintance’s home is about one-half block from the Brush Street corner, and because the acquaintance was able to repeat the substance of the transaction, his version would require that it occurred within ear-shot of his front porch. Moreover, defendant told police that he and Murphy carried the property “back” to the park after buying it and that they had only been “back” at the park for five minutes before being detained, suggesting that they had been at the park before making the purchase, rather than at the acquaintance’s home. In addition, defendant told the police that the person who sold him the property assured him it was not stolen, whereas the acquaintance said there had been no discussion of whether the property was stolen. In any event, taking defendant’s and the interviewee’s statements at face value, the very circumstances of defendant’s purported purchase of the property, including its price, create an unmistakable inference that it was stolen.
Defendant also discusses the path he walked with Murphy to the park, arguing that it is inconsistent with his coming directly from the burgled car. We find this discussion of little significance, since defendant could have obtained the property earlier.
C. Failure to Exercise Sentencing Discretion
The trial court opened argument on the topic of sentencing by stating the sentencing choices for a violation of Health and Safety Code section 11350, subdivision (a), defendant’s original crime. Because the court did not raise the possibility of a reinstatement of probation, defendant contends that the court failed to exercise its discretion to consider this possibility.
The trial judge committed error by not acknowledging the possibility of a reinstatement of probation and stating his reasons for rejecting that possibility. (Cal. Rules of Court, rule 4.406(b)(2); People v. Hawthorne (1991) 226 Cal.App.3d 789, 794.) We do not infer from this failure to state reasons, however, that the judge was unaware of the possibility that probation could be reinstated and therefore failed to consider it. On the contrary, the general rule is that “[o]n a silent record, the ‘trial court is presumed to have been aware of and followed the applicable law’ when exercising its discretion. [Citations.] The appellate court cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of its discretion.” (In re Jacob J. (2005) 130 Cal.App.4th 429, 437–438.)
Defendant contends that the record is not “silent” on the issue of a reinstatement of probation because the trial court mentioned the sentencing choices for a violation of the underlying crime without mentioning reinstatement of probation. The argument misunderstands the concept of a “silent record.” Because the trial judge did not affirmatively state that he lacked discretion to reinstate probation, but instead did not address the issue at all, the record does not “establish on its face that the trial court misunderstood the scope of its discretion.” (In re Jacob J., supra, 130 Cal.App.4th at p. 438.) Rather, the court’s approach, opening the subject by asking about the length of a prison sentence, was wholly consistent with a considered, albeit silent, rejection of the alternative of a reinstatement to probation.
When a trial court erroneously fails to state reasons for a sentence choice, the sentencing decision will not be reversed unless there is a likelihood the trial court would make a different sentencing choice on remand. (People v. Champion (1995) 9 Cal.4th 879, 934, disapproved on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860; People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684 [“where the sentencing court fails to state such reasons, remand for resentencing is not automatic; we are to reverse the sentence only if ‘it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error’ ”].) We conclude that the trial court’s error here does not require remand because there is no likelihood that the trial court will reinstate probation. The court began the discussion of sentencing with the assumption that defendant should be sentenced to the middle term sentence, suggesting that the court viewed the violation as serious. This was not unreasonable. Defendant had a long history of prior offenses, most recently in 2003, and his performance on earlier probation terms had been poor, including 15 probation revocations and 28 failures to appear. It was only because defense counsel pressed defendant’s current successful performance on probation that the trial court imposed the mitigated term. Under these circumstances, we see no likelihood that a remand would result in the reinstatement of probation.
D. Ineffective Assistance of Counsel
Defendant contends that his counsel’s assistance was ineffective because (1) counsel did not argue for a reinstatement of probation, rather than the mitigated prison term, (2) counsel did not request a new probation report, and (3) counsel did not object when the trial court failed to state its reasons for rejecting a reinstatement of probation.
“The standard for showing ineffective assistance of counsel is well settled. ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.’ ” (People v. Gray (2005) 37 Cal.4th 168, 206–207.)
When a claim of ineffective assistance is raised, “ ‘relief depends solely on whether counsel’s error, if any, may have affected the outcome.’ ” (People v. Alfaro (2007) 41 Cal.4th 1277, 1304.) Defendant must show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been more favorable to the defendant. [Citation.] A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (People v. Stanley (2006) 39 Cal.4th 913, 954.)
We do not address the competence of defendant’s attorney because we conclude, for the reasons discussed above, that the purported examples of ineffective assistance were harmless. As noted, defendant has not suggested that there was any significant information not included in the probation report of which the trial judge was unaware. The most significant information was defendant’s success on Proposition 36 probation. Defense counsel informed the court of that success, and it persuaded the court not to impose the middle term. In addition, again for the reasons discussed above, we do not believe that raising the issue of reinstatement of probation, whether by way of a request for a statement of reasons or by argument for reinstatement, would have been reasonably likely to change the court’s mind as to the proper sentence.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J., Stein, J.