Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA 042217, Kathleen Blanchard, Judge.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, Acting P. J.
A jury convicted Agustin Aguilar of driving under the influence of alcohol or drugs, and the trial court sentenced him to two years in prison. Aguilar appeals, contending that his sentence must be vacated and the case remanded for resentencing because the trial court did not obtain a probation officer’s report after Aguilar was convicted. We agree, vacate Aguilar’s sentence, and remand for further proceedings.
BACKGROUND
The information charged Aguilar with one count of driving under the influence of alcohol or drugs, in violation of subdivision (a) of Vehicle Code section 23152 (count 1), one count of driving while having a blood alcohol level of.08 percent or higher, in violation of subdivision (b) of Vehicle Code section 23152 (count 2), and one count of driving while his driving privilege was suspended for a prior conviction of driving under the influence, in violation of subdivision (a) of Vehicle Code section 14601.2 (count 3). As to counts 1 and 2, the information further alleged pursuant to Vehicle Code sections 23550 and 23550.5 that Aguilar had suffered three prior convictions for driving under the influence. Aguilar pleaded not guilty.
He later withdrew his plea as to count 3 and pleaded no contest on that count. The court stayed sentencing on count 3 pending the outcome of the trial on counts 1 and 2.
The remaining counts were tried to a jury, which convicted Aguilar on count 1 but acquitted him on count two. The court then conducted a bench trial on the prior conviction allegations as to count 1 and found them true.
The court denied probation and sentenced Aguilar to the midterm of 2 years on count 1, plus a concurrent sentence of 46 days on count 3. The court also credited Aguilar with 168 days of presentence custody (112 days actual time and 56 days good time/work time) and imposed various statutory fines and fees. Aguilar timely appealed.
Because this appeal raises only a single, narrow procedural issue, no lengthy description of the facts is necessary. On May 16, 2008, two highway patrol officers found Aguilar asleep at the wheel of a car that was stopped in the number two lane of Avenue M, blocking traffic. The engine was still running (with the manual gear shift in neutral), the driver’s side door was open, Aguilar was slumped over, and he had vomited on himself, the car, and the ground. One of the officers had to shake Aguilar for “a good minute or so” in order to wake him up. Aguilar admitted that he had had three or four beers and that he had felt the effects of the alcohol, so he “stopped to rest.” Field sobriety tests and breath tests conducted on the scene, as well as a blood sample drawn approximately two hours later, all indicated that Aguilar was under the influence of alcohol.
DISCUSSION
The trial court read and considered a pretrial probation report that was prepared for a hearing on June 17, 2008, more than two months before Aguilar’s trial. No post conviction probation report was prepared. On appeal, Aguilar argues that the trial court erred by sentencing him without the benefit of a post conviction report and that the error is reversible per se. We agree.
Subdivision (b)(1) of Penal Code section 1203 provides that, subject to an exception not applicable here, “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.” Preparation of the report may be waived only by written stipulation or orally in open court. (Pen. Code, § 1203, subd. (b)(4).) There was no such stipulation in this case, so Aguilar has not waived his right to the report. The trial court therefore erred by sentencing Aguilar without having ordered a post conviction probation report.
Respondent argues that Penal Code section 1203.7 indicates that, contrary to the plain meaning of Penal Code section 1203, the court has “discretion to order a probation report either before or after conviction.” Respondent misreads Penal Code section 1203.7. That statute deals with the duties of the probation officer. It provides that the probation officer must prepare a report “when so directed by the court” either before or after conviction (Pen. Code, § 1203.7, subd. (a)), that the probation officer must keep certain records concerning convicted defendants who are on probation (id., § 1203.7, subd. (b)), and so forth. Penal Code section 1203, in contrast, imposes certain duties on the court, including the duty to order a probation report after a felony conviction. Nothing in Penal Code section 1203.7 transforms the duty imposed by Penal Code section 1203 into a discretionary matter.
Respondent also argues that Aguilar waived the issue by failing to object. But respondent never addresses Penal Code section 1203’s requirement (described in Aguilar’s opening brief) that waivers must be express. Respondent does not argue that Aguilar expressly waived his right to a post conviction probation report.
For the foregoing reasons, we conclude that the trial court erred by failing to order a post conviction probation report.
Aguilar further contends that the case law indicates that the error is reversible per se. Respondent never addresses that contention, instead arguing that the error was harmless under People v. Watson (1956) 46 Cal.2d 818, 834-836.) We agree with Aguilar’s reading of the case law. When a defendant is deprived of the mandated probation report, “the possibilities for prejudice are clear and the actual prejudice suffered is a matter of conjecture.” (People v. Leffel (1987) 196 Cal.App.3d 1310, 1318.) “What the defendant might have been able to object to or to add further to the report cannot be determined because he was not afforded the proper opportunity to comprehend, analyze, investigate and evaluate the report. It is clear that the Legislature intended that he be given this opportunity.” (Ibid.; see also People v. Conners (2008) 168 Cal.App.4th 443, 457 [quoting People v. Leffel, supra, 196 Cal.App.3d at p. 1318]; People v. Bohannon (2000) 82 Cal.App.4th 798, 809, disapproved on another ground in People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13.) Aguilar must be resentenced after preparation of a post conviction probation report.
DISPOSITION
The sentence is vacated and the matter is remanded to the superior court with directions to refer the matter to the probation officer for preparation of a report pursuant to subdivision (b) of Penal Code section 1203, and for resentencing after the report has been prepared and the court has considered it. The judgment is otherwise affirmed.
We concur: CHANEY, J., JOHNSON, J.