Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF122704, Ronn M. Couillard, Judge.
James H. Dippery, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Kane, J.
A Felony Complaint charged defendant with violating Penal Code section 666 (petty theft with a prior specified offense) and alleged he had suffered a prior “strike” conviction within the meaning of section 1170.12, subdivision (c)(1) and had served a prior prison term within the meaning of section 667.5, subdivision (b). In November 2004, defendant entered a no contest plea to a felony violation of section 666 and admitted to having served a prior prison term. The court agreed to strike the prior felony robbery conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court imposed a four-year prison term consisting of the three-year aggravated term plus one year for the prior prison term, suspended execution of the sentence and placed defendant on three years’ probation. In October 2006, he was found to have violated probation by failing to obey all laws. At sentencing the court noted that he had violated probation, had a lengthy prior criminal history and that the aggravating factors outweighed the mitigating factors; the court revoked his probation and committed him to state prison for the upper term of three years, but struck the one-year prison term enhancement, “because [the court] used that to aggravate the term.”
All statutory references are to the Penal Code unless otherwise noted.
Based on the evidence presented at a preliminary examination, defendant was in violation of his probation by being in possession of a weapon.
Defendant’s sole argument on appeal is that the trial court erred in failing to obtain a new or supplemental probation report before he was sentenced in 2006 following the violation of probation hearing. He requests that the 2006 sentence be reversed and the matter remanded for consideration of a supplemental probation report before sentencing is imposed. Respondent concedes that the trial court erred in not ordering a supplemental probation report, but argues that the error was harmless. Respondent also contends that if this court remands the matter for resentencing, the trial court should be directed to execute the previously suspended four-year sentence unless it reinstates probation.
The trial court is required to obtain a probation report before sentencing on a felony conviction where the defendant is eligible for probation. (§ 1203, subd. (b)(1).) Here, while defendant was not initially eligible for probation because of the strike allegation (§ 1170.12), the court indicated it was striking the strike allegation, which removed the ineligibility condition. Thus, at the time of the 2006 sentencing that is the subject of this appeal, defendant was eligible for probation consideration. In addition, as here, the court is required to refer the matter to the probation officer and the court must read and consider the report before modifying or revoking probation. (§ 1203.2, subd. (b).) At the time the court sentenced defendant following its determination that he violated the terms of probation, the court did not refer the matter to probation for a report as required by section 1203, subdivision (b) and by section 1203.2, subdivision (b). We agree with both parties that this was error, but also conclude that the error was harmless.
While the court indicated that it was going to strike the strike conviction, it never formally announced it was doing so and never obtained an admission from defendant that the allegation was true. Since the parties do not contest that the strike conviction was lawfully stricken by the court, we will not address the issue further.
Since there is no federal constitutional right to a supplemental probation report, review is governed by the Watson harmless error standard. (People v. Watson (1956) 46 Cal.2d 818, 834-836; People v. Dobbins (2005) 127 Cal.App.4th 176, 182 (Dobbins).) Under that standard, reversal is not warranted unless there is a reasonable probability of a result more favorable to the defendant in the absence of the error.
In Dobbins the appellate court found harmless the trial court’s error in failing to order a supplemental probation report following a violation of probation based on a weapon charge, because the same judge took the initial change of plea, imposed the initial sentence and later sentenced him on the probation violation and because, given his criminal history, which included multiple felony and misdemeanor convictions, state prison terms and parole violations, it was not reasonably probable that the defendant would have been granted probation had a supplemental report been prepared. (Dobbins, supra, 127 Cal.App.4th at p. 183.) Likewise, in this case, the same judge took the change of plea, imposed the initial sentence and then sentenced defendant on the probation violation.
Defendant argues that Dobbins is not apposite to our case because the time between the original probation report and sentencing in Dobbins was only eight months as compared to 20 months in this case (including time in custody). But the passage of time between the last probation report and sentencing is only one factor to consider in assessing prejudice. Defendant’s criminal history, including repeated failures to comply with terms of parole and probation, is also an important consideration in analyzing whether a supplemental probation report would have likely resulted in defendant’s probation being reinstated. Defendant’s criminal record consisted of two felony convictions, five misdemeanor convictions, two parole violations and a prior felony probation violation for which he was sent to prison. At the time of the sentencing in 2006, the judge noted that the aggravating factors outweighed the mitigating factors and that defendant had a lengthy criminal history. Defense counsel indicated that there was no legal cause why sentence should not be pronounced and had no comments on the report or recommendation. No additional mitigating factors were raised that were not already before the court. (People v. Goldstein (1990) 223 Cal.App.3d 465, 472 [“Appellant has not suggested any mitigating factor which might have influenced the trial court”].) Presumably, if defendant or his counsel was aware of mitigating circumstances that were not before the court, such matters would have been mentioned at the time of sentencing.
We conclude that the court’s error in not ordering a supplemental report was harmless in that it is not reasonably probable that defendant’s probation would have been reinstated following his violation of probation had a supplemental probation report been prepared. (People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
Respondent challenges the authority of the trial court to strike the one-year enhancement for the prior prison term. (People v. Howard (1997) 16 Cal.4th 1081, 1088, 1095.) However, since respondent only asks us to address this issue if the court reverses and remands for resentencing, in light of our decision to affirm, we decline to address this issue.