Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC445377
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
Defendant Judy Ann Spotswood pleaded guilty to one count of theft or embezzlement of more than $400 by a person not a caretaker from an elder or dependent adult (Pen. Code, § 368, subd. (d)) and was placed on probation. On January 19, 2006, the probation department filed a petition for modification of the terms of probation, alleging that defendant violated probation. Defendant subsequently admitted the violation of probation. On March 30, 2006, the trial court reinstated probation and modified the terms and conditions of defendant’s probation.
All further statutory references are to the Penal Code unless otherwise indicated.
By order dated February 21, 2008, we granted the People’s request for judicial notice of the record on appeal in People v. Spotswood (Dec. 8, 2006, H030118) [nonpub. opn.]. Our summary of the pertinent factual and procedural background includes some information that we have taken from our prior opinion.
The probation department filed a second petition for modification of the terms of probation on December 14, 2006, alleging that defendant violated probation. After a contested hearing on May 14, 2007, the trial court found a violation of probation. The trial court sentenced defendant to the mitigated term of two years in prison, with 360 days credit.
On appeal, defendant contends the trial court illegally sentenced her to state prison immediately after finding a probation violation and without ordering the preparation of a probation report. Defendant argues that her sentence must be reversed and the matter remanded to the trial court for resentencing after the preparation of a new probation report.
For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND
As defendant was convicted by plea, the summary of her offense is taken from the preliminary hearing held February 15, 2005. Faye Shelton, defendant’s aunt, testified that defendant asked for a loan of money because defendant’s car had been impounded due to late car payments. Shelton gave defendant permission to charge $3,000 on Shelton’s Citibank credit card. Shelton later discovered that defendant charged $6,000 for other items, including airplane tickets, car rental, personal items, and a Las Vegas hotel room, for which Shelton had not given permission.
Information, Plea, and Sentencing
Defendant was charged by information with three felony counts: theft or embezzlement of more than $400 by a person not a caretaker from an elder or dependent adult (§ 368, subd. (d); count 1), grand theft of personal property with a value over $400 (§§ 484/487; count 2), and misrepresenting herself as the holder of an access card (§§ 484g, subd. (b)/487; count 3). Defendant entered into a negotiated plea agreement in which she agreed to plead guilty to count 1 (§ 368, subd. (d)) and to pay restitution of $6,000. The plea agreement provided that count 1 would be reduced to a misdemeanor pursuant to section 17 if defendant made a restitution payment of $1,200 by the date of sentencing.
The court referred the matter to adult probation “for preparation of a calculation of credits and victim contact report only.” A waived referral report was subsequently prepared by the probation department for the sentencing hearing on September 23, 2005.
Defendant failed to make the restitution payment by the date of sentencing, and therefore count 1 was not reduced to a misdemeanor. The trial court placed defendant on probation for three years and ordered, among other things, that defendant serve 49 days in county jail, with credit for time served, and that she pay victim restitution of $6,000.
First Petition for Modification of Probation
On January 19, 2006, the probation department filed a petition for modification of the terms of probation, alleging defendant violated probation by failing to report to the probation department within three days; failing to provide proof of education, vocational training, or employment; failing to provide proof of compliance with section 296 (DNA sample); failing to make a payment towards the restitution fund fine of $200; and failing to make a payment towards the victim restitution fine of $6,000. Probation was revoked on January 19, 2006, and a bench warrant was issued for defendant’s arrest.
On March 30, 2006, the probation department filed an additional allegation of probation violation, stating that defendant was found in violation of section 488 (petty theft) in another county.
Defendant admitted the violation of probation. On March 30, 2006, the trial court reinstated probation and extended it to May 23, 2010. The trial court also modified the terms and conditions of probation to include monthly victim restitution payments of $230 beginning August 1, 2006, and a county jail term of 135 days, with credit for 75 days.
Appeal
Defendant filed an appeal challenging the trial court’s imposition of a probation supervision fee as a condition of probation and without any consideration of her ability pay. In an opinion filed December 8, 2006, we ordered that the condition be stricken, that the trial court determine defendant’s ability to pay the fee, and that the fee, if any, not exceed $64 per month.
Second Petition for Modification of Probation
On December 14, 2006, the probation department filed a second petition for modification of the terms of probation, alleging that defendant failed to make monthly payments towards victim restitution, her last payment was made on March 15, 2006, and a balance of $4,800 remained unpaid; failed to notify the probation department of her current address; and was arrested on July 24, 2006, in Sonoma County for violating section 537, subd. (a)(2) (defrauding an innkeeper of greater than $400), a felony. Probation was revoked on December 14, 2006, and a bench warrant was issued for defendant’s arrest.
Request for a “Full Report” in February 2007
Defendant appeared before the trial court on February 1, 2007. On February 8, 2007, defense counsel stated to the trial court: “[Defendant] has so many problems out of county, as the petition shows. She has no other criminal history here other than this case, and I believe this might be an appropriate matter to set for a full report.” In response, the trial court referred the matter to the probation department for a “full report” and set the matter for February 28, 2007.
The probation department subsequently prepared a document for the February 28, 2007 hearing, labeling it a “Petition for Modification of Terms of Probation.”
Upon defendant’s request on February 28, 2007, the trial court set the matter for a formal hearing regarding the alleged violation of probation.
Additional Allegation of Probation Violation
At a hearing on April 23, 2007, the People added an allegation that defendant “picked up a new [section] 666 [petty theft with a prior] in January of 2007.”
Probation Violation Hearing
A contested probation violation hearing was held on May 14, 2007, concerning the allegations that defendant failed to pay victim restitution, failed to notify the probation department of her current address, defrauded an innkeeper in July 2006, and committed petty theft in January 2007.
Documents prepared by the probation department for court hearings on February 1 and 28, 2007, added the allegation that defendant violated section 666 (petty theft with priors) on January 2, 2006, in Santa Rosa, California, and was sentenced to two years probation on February 6, 2006. At the probation violation hearing on May 14, 2007, defense counsel objected to this allegation on the grounds that this “petty theft should have gone towards the circumstances of violation as to [defendant’s] first violation in this case,” and that defendant had admitted to the first violation of probation on March 30, 2006. The prosecutor acknowledged that this allegation “was a circumstance of violation before that . . . .”
Defrauding an Innkeeper in July 2006
Jeff Peterich, a deputy sheriff, testified that he was dispatched to the Holiday Inn in Sonoma County on July 24, 2006, at about 2:00 p.m. The inn manager reported that defendant was refusing to pay her bill.
When Deputy Sheriff Peterich arrived, defendant offered “several different stories about how she was planning on paying for the bill.” Defendant claimed “there shouldn’t be a bill, first of all, because her rewards card points should have totaled the amount to cover the four or five days’ charges.” Deputy Sheriff Peterich testified that “[t]he rewards card points were actually not even close to what she needed.”
Defendant also told Deputy Sheriff Peterich that she tried to pay the balance of approximately $800 with her credit card, that the credit card did not work because it had been stolen the night before, and that she had reported it stolen. She further stated that she had used the credit card in the morning to pay for approximately $90 in incidental charges that she accumulated during the week. Deputy Sheriff Peterich asked a hotel employee whether there was any indication the credit card had been reported stolen when the hotel tried to charge the card for defendant’s bill. The employee reported that the card was declined, but that there was no indication it had been reported stolen.
Defendant maintained that “she had a friend who was driving around trying to pick up some money that was being wired to him in her name from a lady who was buying a car that she was selling.” Deputy Sheriff Peterich spoke “at least ten times” to a person named Jeff, who had defendant’s cell phone, “to give him a chance to come back with the money.” Deputy Sheriff Peterich “waited for at least an hour trying to give [defendant] the benefit of the doubt that they were going to come up with the money and pay, at which time [the person named Jeff] finally ended up telling” Deputy Sheriff Peterich, “ ‘I can’t pay the money.’ ” Defendant was subsequently arrested.
Lisa Favorito, a Probation Officer for the Santa Clara County Adult Probation Department, testified that she interviewed defendant at the women’s correctional facility following her arrest on the probation violation petition. In explaining the hotel incident, defendant told Favorito that “she was a travel agent, so she had three bonus days coming to her” based on “points” she had received. Defendant also stated that she only had $100 in cash on her because $280 was stolen from her hotel room.
Theft in January 2007
Yvonne Saechao, a loss prevention agent employed by Rite Aid, testified that she saw defendant at a Rite Aid store in Sonoma County on January 11, 2007. Saechao observed defendant in the store for approximately 20 minutes before defendant purchased “a couple of items.” Thereafter, defendant “tried to return some items that she just picked out from the store,” including a pair of eye glasses, worth $3.50, for which she had not paid. When a store supervisor refused to allow her to return the items, defendant said, “ ‘Forget about it. Don’t worry.’ ” Defendant moved to a different part of the store and slipped two containers of KY jelly into her bag. An employee at the cash register asked defendant “if she needed anymore help.” Defendant walked “over to the cashier” and said, “No, it’s okay” and then left the store without paying for the items.
Outside the store, Saechao approached defendant, identified herself, and asked for the items that defendant put in her bag. Defendant replied, “ ‘No. I don’t know what you’re talking about. [I]t was already in my bag.’ ” A man suddenly appeared, got “into [Saechao’s] face,” and asked, “What happened?” The store manager moved in front of Saechao, trying to hold the man back so Saechao could talk to defendant. However, defendant “was zig-zagging away from” Saechao, so Saechao “couldn’t really do anything.” Saechao told defendant she was going to call the police. At the same time, the man was trying to push the store manager, who warned, “ ‘Hey, I’m going to call the police if you don’t get out of my way. I’m just going to talk to this lady.’ ” The man would not “give in,” and ultimately defendant was able to drive away with the man. Another person “took down the license plate and gave it to [Saechao].”
Failure to Pay Restitution and to Provide a Current Address
Favorito testified that defendant made one payment of $1,200 for victim restitution on March 15, 2006, and that she owed a balance of $4,800. Further, the probation department sent two letters to defendant in November 2006 to a post office box in San Rafael, California, defendant’s last known mailing address, but they were sent back with “Return to sender” on at least one of the envelopes.
When Favorito questioned defendant about restitution, defendant said “she had no way of getting money because she was not working, and she was waiting for . . . Social Security Disability. However, she could not ever get her final eligibility because she was always in custody. . . .” Defendant stated she made an additional payment of $200, but Favorito testified that there was no record of the payment. Defendant also stated that she paid $2,300 to her aunt before being ordered by the court to pay $6,000.
With respect to providing a current address to the probation department, defendant told Favorito that “she couldn’t pay for a mailbox to receive mail at one point; and that she had no cell phone or telephone,” and that the attorney helping with her disability claim “was going to call her probation officer” to provide “her recent address.” Defendant indicated that “she was moving from house to house because she was house sitting for different people and animals,” and in return she received rent or shelter for herself. Defendant did not provide any proof, nor did she explain why she failed to “advise the probation department of the change of address every time she did some house sitting.”
Defense Case
Defendant testified that she knew it was her responsibility to keep probation informed of where she lives, to pay off the restitution that was ordered by the court, and to not commit crimes while on probation.
Regarding the hotel bill, defendant testified that she informed the hotel when she arrived that the credit card “was only to hold the room,” and that she could not pay with it “ ‘because there’s . . . no money on this card.’ ” Defendant testified that she did not owe the hotel $800, that she had a “card” and had “60,000 credits coming to” her, that she therefore only owed $300 or almost $400 for the hotel bill, and that she was going to pay with the $384 that she had in cash. Defendant testified that the hotel never gave her a chance to explain. She also testified that she was robbed the previous night at the hotel.
With respect to the incident at Rite Aid, defendant denied being at the store on the day of the theft.
As for restitution, defendant testified that she did not owe her aunt $6,000, and indicated that she was raising the issue in a habeas corpus petition. Defendant testified: “I bought her a five-thousand-dollar plot to be buried with my mother. So, basically, that was a wash. I don’t owe my aunt any more money, literally. But I’m paying whatever is asked of me because I said I would, and I love my aunt.”
Defendant testified that she paid $200 in November. When questioned about the lack of record of the payment, defendant testified: “There is on my end. I have a Money Order, but I can’t get access to any of those things. And I would sure like to know where it went. Right here it says $200 minus, on my form.”
Defendant testified that she could pay restitution and that she has “over $35,000 in retroactive money coming from Social Security in a letter that’s proven that will come to [her].” Regarding employment, defendant testified: “I worked most of my life, two and three jobs, until I became disabled and my mother’s death.” Defendant testified she became disabled in 2004, after being hit by a car, which shattered her elbows and damaged her “left shoulder rotator cuff.” Defendant received state disability “until it ran out.” She testified that “it was to roll over to Social Security, but . . . every time [she] get[s] arrested, it has to start over again” and she needs to “finish” her “last doctor appointments . . . .”
Defendant testified that she sold her vehicle to pay restitution and “that took away [her] only home.” During the past year, she lived at “[d]ifferent people’s homes, housesitting,” which would last “sometimes anywhere from two weeks to three or four months.” She testified that she did not receive pay for these jobs.
As for keeping “in touch with probation,” defendant testified that she did so by letter and by cell phone. She admitted her “letters to probation were returned” because she used an incorrect address that she obtained while in jail. She testified, however, that the probation department’s “own handwriting show[ed] that, in fact, they did get [her] phone call because they realized that they sent [a letter] to a wrong post office box and then wrote the new one down and reissued the letter.” She testified that she originally had two post office boxes at the same post office in San Rafael, but she changed to one box because she could not afford both. Defendant testified that “every time” she told her probation officer, usually in a voicemail message, where she was living and what she was doing. She testified that her probation officer knew that her mailing address “was always a post office box.” While she testified that she had post office boxes during the entire period of her probation, she also testified that she could not pay for them at one point and that the post office told her that her mail had been returned.
Argument from Counsel
After evidence was presented at the probation violation hearing, the trial court heard argument from counsel. The People briefly stated that “the circumstances in violation . . . have been proved here, and . . . it’s perfectly clear.”
In response, defense counsel argued that the trial court should take into consideration defendant’s testimony “that she did not have time to get out and get it together” after she was released on her first violation of probation “to make those restitution payments.” Defense counsel maintained that defendant gave “compelling testimony regarding what her living situation was and her disability.” Defense counsel further asserted that defendant explained “her failure to keep the post office paid,” which “was a result of her poverty and her inability to pay the postmaster,” and this “should be taken into consideration and mitigation.”
Regarding the allegations concerning defrauding an innkeeper and concerning theft, defense counsel argued that they had not been proven by a preponderance of the evidence. Regarding the hotel incident in particular, defense counsel questioned whether there was “fraud involved in this situation” and expressed doubt as to whether the felony for which defendant was arrested “will remain as a felony as it goes through the court system up in Sonoma County.”
Lastly, defense counsel argued that defendant “is a 54-year-old woman who has a record of minor thievery, some drug cases that were handled with Deferred Entry of Judgment or Diversion. She has some issues that are preventing her from getting on her feet and abiding by the terms and conditions of probation like she is supposed to be doing.” Defense counsel maintained that defendant “testified if she were given another chance, she would make every effort to comply with the terms and conditions of probation.”
Trial Court’s Ruling
After hearing argument from counsel, the trial court stated: “I do find the violation of probation by defendant’s own admission. She failed to make payments on victim restitution. I find the money involved in this case very confusing, but by defendant’s own statement, she had $384 in cash in her hand and didn’t pay any of that towards victim restitution. By defendant’s statement, . . . $284 of it was stolen, but the defendant had some ability to make payments towards the victim restitution and did not. [¶] I accept the statements from the Department of Probation that the defendant failed to provide them with an address. I believe that the defrauding of the innkeeper in Sonoma . . . was proven by a preponderance of the evidence. I accept the testimony of Officer Peterich. [¶] And with regard to the [section] 666, I found the testimony of Yvonne Saechao very compelling and credible, and I accept that testimony. So I have to find that a violation of probation has been proven on all of those circumstances.”
After considering the arraignment offer of two years and the probation department’s current recommendation of three years, the trial court imposed the mitigated term of two years, with 360 days of credit. The court revoked probation and ordered defendant to pay victim restitution, a restitution fund fine, and a suspended parole revocation restitution fine.
Defendant filed a notice of appeal on May 15, 2007.
III. DISCUSSION
On appeal, defendant contends the trial court illegally sentenced her to state prison immediately after finding a probation violation and without ordering the preparation of a new probation report.
Defendant acknowledges that the document prepared by the probation department in response to her counsel’s request for a “full report” before the contested probation violation hearing does “include some of the information that would have been included in a full probation report.” Defendant maintains, however, that this document, which is entitled “Petition for Modification of Terms of Probation,” should not be treated as a probation report because (1) “the probation department did not characterize it as a probation or presentence report”; (2) it was “the accusatory document underlying the prosecution of the probation violations” rather than an objective, presentence evaluation of defendant’s situation for the court’s guidance at sentencing; (3) the probation officer who prepared the document engaged in “questionable” conduct by interviewing defendant before the resolution of the probation violation allegation, placing defendant in an “awkward position” as to whether she should remain silent and not incriminate herself with respect to the probation violation allegation but then be described as “uncooperative” by the probation officer; and (4) the document “was too limited in scope to qualify as a probation report” because it did not sufficiently discuss her financial situation or background, or consider mental health treatment for her.
Defendant argues that “the absence of the probation report was highly prejudicial” to her, and that her sentence must be reversed and the matter remanded to the trial court for resentencing after the preparation of a new probation report.
Probation Report
Section 1203, subdivision (b)(1), requires a probation report to be prepared “before judgment is pronounced” if the person “is convicted of a felony and is eligible for probation.” The contents of a probation officer’s presentence investigation report are set forth in section 1203, subdivision (b)(2)(A) through (D), section 1203.10, and California Rules of Court, rule 4.411.5(a), and include the probation officer’s recommendation as to whether probation should be granted. An effective waiver of the report requires a written stipulation or an oral agreement on the record. (§ 1203, subd. (b)(4).) California Rules of Court, rule 4.411(c) requires “a supplemental probation officer’s report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared.”
Section 1203, subdivision (b)(1), states: “Except as provided in subdivision (j), if a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment.”
Section 1203, subdivision (b)(4), provides as follows: “The preparation of the report or the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except that there shall be no waiver unless the court consents thereto. However, if the defendant is ultimately sentenced and committed to the state prison, a probation report shall be completed pursuant to Section 1203c.”
Section 1203.2, subdivision (b), provides for a report from the probation officer when the court is considering the modification, revocation, or termination of probation.
Section 1203.2, subdivision (b), states: “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.”
Analysis
We determine that the “full report” prepared by the probation department in February 2007 for the hearing on February 28, 2007, constitutes the probation report that defendant asserts she was entitled to before being sentenced to prison.
First, although labeled a “Petition for Modification of Terms of Probation,” the February 2007 document was prepared in response to defense counsel’s request, and at the trial court’s direction, for a “full report” from the probation department. By requesting a “full report,” defense counsel apparently sought an investigation by the probation department into the circumstances of the alleged violation of probation and the probation department’s recommendations for sentencing.
Second, as defendant acknowledges, the February 2007 document includes “some of the information that would have been included in a full probation report.” Among other things, the document contained current statements by defendant about the alleged probation violations, the status of criminal proceedings against defendant in Sonoma County, days in custody, and the probation officer’s evaluation and recommendations, including the recommendation that defendant be committed to prison for three years. The February 2007 document contained more information than prior petitions seeking to modify defendant’s probation, and the additional information was relevant to the trial court’s sentencing decision.
Defendant argues the February 2007 document “did not provide any detailed discussion of [her] financial situation or circumstances aside from those directly related to the criminal offense and her prior performance on probation” and thus it “was too limited in scope to qualify as a probation report.” The probation officer, however, gathered information concerning defendant’s efforts or ability to make monthly payments towards victim restitution, and thus the February 2007 document necessarily describes defendant’s financial situation, as well as defendant’s activities in connection with obtaining income. In this regard, the February 2007 document includes defendant’s statements regarding the following: her inability to work, her potential eligibility for disability benefits, her house sitting activities in exchange for shelter, her inability to pay for a mailbox and a cell phone or telephone in the fall of 2006, her unsuccessful attempts to obtain a paying job, her status as a “certified travel agent,” and the amount of cash she had in early 2007, which she intended to use to pay for a hotel room. Defendant fails to explain what additional “discussion” concerning her “financial situation or circumstance” should have been included in the report.
Third, the record indicates that defense counsel had a copy of the February 2007 document and was aware of its contents prior to the start of the probation violation hearing. Defendant never objected to the document regarding the timing of its preparation, its purported lack of completeness, or otherwise. Moreover, at the time of sentencing, defendant never asked for another report, or an updated report.
In view of defense counsel’s request for a “full” probation report before the probation violation hearing, the content of the February 2007 document prepared by the probation department thereafter, the lack of any objection to the document by defendant, and the absence of a request for another report, we conclude that the “Petition for Modification of Terms of Probation” prepared by the probation department in February 2007 constitutes the probation report that defendant asserts she was entitled to before being sentenced to prison.
Defendant argues that a probation report must be prepared after, and not before, the trial court finds a violation of probation. Defendant explains that she was represented by counsel, yet she “was interviewed by a government agent as part of their investigation of the probation violation.” She asserts that it is “questionable” whether the “probation officer should have been interviewing her at all” when the allegations concerning the probation violation had not yet been resolved, and that “[t]his appears to be a clear violation of [her] rights under Massiah v. United States (1964) 377 U.S. 201” [Massiah]. She maintains that she was put “in a very awkward position” and that if she had exercised her right to remain silent and not incriminate herself, she would have been described as “uncooperative” in the probation report.
Here, defense counsel requested the preparation of a probation report before the probation violation allegations had been resolved. Indeed, defendant did not request a formal hearing on the probation violation allegations until after the probation department’s report had been prepared. Further, defendant failed to voice any concerns or make any objection regarding the timing of the preparation of the report by the probation department or the interview by the probation department. In view of these circumstances, where defendant sought contact with the probation department for a “full report” before the probation violation allegations were resolved by the court, and such a report was accordingly prepared, we do not believe that defendant was entitled to yet another probation report before being sentenced by the court in the absence of a request.
Moreover, defendant fails to explain how Massiah, supra, 377 U.S. 201, supports her claim that she is entitled to the preparation of another probation report. In Massiah, the United States Supreme Court held that a defendant’s Sixth Amendment right to counsel is violated when the government introduces into evidence incriminating statements deliberately elicited from the defendant by agents of the state, outside the presence of counsel, after the commencement of criminal proceedings. (Massiah, supra, 377 U.S. at p. 206.) In this case, defendant’s contact with the probation officer was initiated by defense counsel before the probation violation allegations were resolved. Defendant does not explain how her Sixth Amendment right to counsel was violated in this circumstance.
In addition, defendant acknowledges that “the remedy for a [Massiah] violation appears to be the exclusion of the improperly elicited statements.” On appeal, however, defendant does not claim any error with respect to the introduction into evidence at the probation violation hearing of her statements to the probation officer. In fact, defendant concedes “there could have been a tactical reason for wanting those statements admitted into evidence.” Further, defendant never raised any objection in the trial court regarding the timing of the preparation of the February 2007 document, or regarding the use of that document for the probation violation hearing or for sentencing. (See People v. Viray (2005) 134 Cal.App.4th 1186, 1208-1210 [evidentiary objection based on Massiah violation waived on appeal due to absence of objection in trial court].)
Accordingly, we conclude that the “full report” prepared by the probation department in February 2007, constitutes the probation report that defendant asserts she was entitled to before being sentenced to prison.
Even if we were to accept defendant’s argument that she was entitled to yet another probation report prior to being sentenced to prison, defendant fails to demonstrate prejudice from this claimed error. Defendant acknowledges that there is “no federal constitutional right to a supplemental probation report.” (People v. Dobbins (2005) 127 Cal.App.4th 176, 182) “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; see also People v. Mower (2002) 28 Cal.4th 457, 484.)” (Id. at p. 182.)
In this case, it is not “reasonably probable” that defendant would have obtained a more favorable result if another probation report had been prepared. (People v. Watson, supra, 46 Cal.2d at p. 836.) This was defendant’s second probation violation. The first probation violation involved, among other things, failing to report to the probation department, failing to make a payment towards victim restitution, and committing petty theft in another county. The second probation violation again involved the failure to make payments towards victim restitution and petty theft in another county, along with the failure to notify the probation department of her current address and defrauding an innkeeper. Given defendant’s prior performance on probation and continuing criminal conduct (Cal. Rules of Court, rule 4.414(b)(1) & (2)), we find that it is not reasonably probable the trial court would have reinstated defendant’s probation even if another probation report had been prepared.
California Rules of Court, rule 4.414 states: “Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant. [¶] (a) . . . Facts relating to the crime include: [¶] (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] (2) Whether the defendant was armed with or used a weapon; [¶] (3) The vulnerability of the victim; [¶] (4) Whether the defendant inflicted physical or emotional injury; [¶] (5) The degree of monetary loss to the victim; [¶] (6) Whether the defendant was an active or a passive participant; [¶] (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; [¶] (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and [¶] (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime. [¶] (b) . . . Facts relating to the defendant include: [¶] (1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; [¶] (2) Prior performance on probation or parole and present probation or parole status; [¶] (3) Willingness to comply with the terms of probation; [¶] (4) Ability to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; [¶] (5) The likely effect of imprisonment on the defendant and his or her dependents; [¶] (6) The adverse collateral consequences on the defendant’s life resulting from the felony conviction; [¶] (7) Whether the defendant is remorseful; and [¶] (8) The likelihood that if not imprisoned the defendant will be a danger to others.”
Defendant contends the February 2007 document did not include information about her background or history, beyond the discussion of the circumstances of the probation violation. Defendant fails, however, to identify what information in her background or history which, if presented to the trial court in another probation report, made it reasonably probable that she would have obtained a more favorable result at sentencing.
Defendant also argues that the probation department did not “analyze the issue” of whether her “problems were related in some way to her mental state and [whether] she should be reinstated on probation with additional conditions of probation addressing that issue.”
During the probation officer’s interview of defendant, as reflected in the February 2007 document, defendant disclosed that she was disabled, indicated that she was taking two medications, and explained the basis for her belief that she “suffers from posttraumatic syndrome.” The probation officer also noted that defendant was “very upset during the interview.” The probation officer investigated defendant’s statement that the trial court recommended a mental health evaluation for her, and found that the trial court requested that a doctor examine defendant in custody. It is reasonable to assume that had the probation officer believed additional conditions could have been imposed to address defendant’s claimed mental state, and had the probation officer believed defendant would have been able to meet those additional conditions, the probation officer would have included the conditions, along with a recommendation of probation, in the February 2007 document. As is apparent from the report, however, the probation officer found defendant “no longer amenable to probation services, due to her lack of compliance [with] the Court’s directives, her performance on probation, her continued criminal activity, and the seriousness of the underlying offense.”
Defendant also argues that “[t]he parties never argued or addressed the question of whether [she] should be reinstated on probation.” Without a continuance in the proceedings and a resumption after the preparation of another probation report, defendant contends “the court sentenced [her] immediately without either of the parties making any argument on the appropriate sentence.”
Contrary to defendant’s suggestion, the parties did address sentencing issues. The February 2007 document provided a detailed evaluation by the probation officer as to why defendant’s probation should remain revoked and defendant should be committed to prison, and it included a summary of defendant’s days in custody. The February 2007 document included statements by defendant “that she does not feel she deserves prison and that she can comply with her terms and conditions of probation if reinstated,” and her plan to make victim restitution. Further, after the trial court heard testimony regarding the alleged probation violation, but before it ruled, the prosecutor and defense counsel were permitted to present argument. Defense counsel argued that defendant “testified if she were given another chance, she would make every effort to comply with the terms and conditions of probation.” Defendant could have called witnesses to support her position that probation and not prison should be ordered by the court, but she did not. In view of the record, we find that defendant and defense counsel were provided with an opportunity, and did address, the issue of the appropriate sentence.
Therefore, even assuming the trial court erred in not ordering the preparation of yet another probation report before sentencing defendant, we would conclude that it is not reasonably probable that defendant would have obtained a more favorable result if another report had been prepared. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Dobbins, supra, 127 Cal.App.4th at p. 182.)
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.