Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCF169803B, Elisabeth Krant, Judge.
Kenneth J. Hutz, 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, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
Lee Davis appeals from a judgment of two years in state prison. He contends that the sentencing judge erred by not requesting an updated probation report. For the following reasons, we affirm.
STATEMENT OF THE CASE
On February 26, 2007, Davis pleaded no contest to one count of grand theft of fruits and vegetables (Pen. Code, § 487, subd. (b)(1)(a)) in return for a grant of probation and maximum county jail term of 180 days. A probation report was filed on March 26, 2007. His motion to withdraw this plea was denied on June 20, 2007. On August 2, 2007, the court followed the recommendation in the probation report, and imposed probation and a 120-day jail term.
All further section citations are to the Penal Code, unless otherwise indicated.
On September 11, 2007, Davis was arrested on a misdemeanor charge of driving under the influence (Veh. Code, §§ 23152, subds. (a), (b)). The district attorney filed an affidavit to revoke appellant’s probation, alleging that appellant failed to abide by the obey-all-laws and abstinence provisions of his probation order.
On November 1, 2007, Davis’s contested probation revocation hearing was heard concurrently with the trial on his misdemeanor counts. The court found Davis guilty of the misdemeanor counts and found that Davis had violated the terms of his probation. The court sentenced Davis to two years in state prison.
On December 17, 2007, Davis filed a timely notice of appeal.
Because it was a negotiated plea, the statement of the facts is based upon the probation report.
On September 1, 2006, the Tulare County district attorney filed an information charging Davis with stealing 75 bales of hay, a felony. In exchange for his guilty plea, Davis was released on probation. The conditions of his probation included that he obey all federal, state, and local laws and abstain from the use of alcohol.
On September 11, 2007, at approximately 1:00 a.m., Davis was driving in the City of Visalia when he was stopped by Officers Saenz and Lasalde, who noticed his vehicle registration had expired.
Davis failed several field sobriety tests and a breath analysis revealed that his blood-alcohol-level was double the legal limit.
DISCUSSION
On appeal, Davis contends that his sentence should be vacated and the case remanded because the sentencing judge erred by not requesting an updated or supplemental probation report. According to Davis, the failure to request a supplemental probation report requires automatic reversal and per se remand of the case because “[a]ny number of unforeseeable events might have transpired during the time appellant was out of custody that would weigh heavily on a court’s decision to grant or deny probation.” We disagree.
Section 1203, subdivision (b)(1), requires the trial court to order a probation report “before judgment is pronounced” for persons “convicted of a felony” who are “eligible for probation.” (§ 1203(b)(1); People v. Dobbins (2005) 127 Cal.App.4th 176, 180 (Dobbins).) Failure to do so is generally treated as reversible error. (People v. Rojas (1962) 57 Cal.2d 676, 681.) In cases where the trial court is petitioned by a district attorney to revoke a grant of probation, section 1203.2, subdivision (b), provides that the trial court shall refer that petition to the probation officer. (§ 1203.2(b).) “After the receipt of a written report from the probation officer, the court shall read and consider the report and … the petition and may modify, revoke, or terminate the probation of the probationer .…” (Ibid.)
Where a felon has a prior probation report, California Rules of Court, rule 4.411(c), provides that “[t]he 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.” What time period constitutes a “significant period of time” is not defined. However, the Advisory Committee Comment to the rule provides that: “If a full report was prepared in another case in the same or another jurisdiction within the preceding 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.” (Advisory Com. com., 23, Pt. 1B West's Ann. Court Rules (2006) foll. § 4.41, p. 235.) According to the Dobbins court, this suggests that “a period of more than six months may constitute a significant period of time, even if the defendant remains incarcerated and under the watchful eyes of correctional authorities.” (Ibid.) Thus, in Dobbins, the appellate court concluded that the trial court erred in proceeding with sentencing where the original probation report was prepared approximately eight months before sentencing, and where that eight-month period included two months when defendant was not under custody. (Ibid.)
Here, the original probation report was filed on March 26, 2007. Appellant was not sentenced to probation until August 2, 2007. He was released on his own recognizance during the four months between the filing of the probation report and the sentencing. By October 5, 2007, he was in custody for the misdemeanor DUI charge. His probation was revoked and he was sentenced to two years in prison on November 1, 2007. Thus, a period of over seven months passed between when the probation report was filed and when appellant was sentenced in this case. During this seven month period, appellant was not in custody for approximately four months. The factual circumstances of this case therefore are indistinguishable from the facts in Dobbins, supra, 127 Cal.4th 176. Accordingly, we conclude that the trial court erred in proceeding with sentencing when it did not request a supplemental probation report.
However, we agree with the Dobbins court that this error does not warrant automatic reversal and remand. (See Dobbins, supra, 127 Cal.App.4th at p. 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.) That is, we shall not reverse unless there is a reasonable probability of a result more favorable to defendant if not for the error. (Watson, supra, at p. 836.)”].)
In criminal cases, if an error is one of state law that does not implicate constitutional rights, the standard of review for assessing prejudice is the Watson test, i.e., whether it is reasonably probable that a result more favorable to the appealing party would have been reached in absence of the error. (People v. Vasquez (2006) 39 Cal.4th 47, 66 (Vazquez).) At the same time, the California Supreme Court has “recognized that certain fundamental errors in procedure, sometimes referred to as ‘structural,’ ‘are not susceptible to the “ordinary” or “generally applicable” harmless-error analysis—i.e., the Watson “reasonably probable” standard—and may require reversal of the judgment notwithstanding the strength of the evidence contained in the record in a particular case.’ [Citation.]” (People v. Vasquez, supra, 39 Cal.4th at p. 66.) A reasonable probability is one sufficient to undermine confidence in the outcome of the proceedings. (Strickland v. Washington (1984) 466 U.S. 668, 694; In re Neely (1993) 6 Cal.4th 901, 909.) It is the burden of the appellant to demonstrate that there is a reasonable probability of a more favorable result. (People v. Hurtado (2002) 28 Cal.4th 1179, 1190.)
“A structural defect is the type of error ‘affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself,’ one that ‘“transcends the criminal process”’ and ‘def[ies] analysis by “harmless-error” standards.’ [Citation.] Examples of structural defects include total deprivation of the right to counsel at trial [citation]; trial before a judge who is not impartial [citation]; and the giving of a constitutionally defective instruction on reasonable doubt [citation]. Trial errors, by contrast, are errors that ‘occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented’ in order to determine whether the error was harmless. [Citation.] There is a strong presumption any error falls within the latter category, and it is the rare case in which a constitutional violation will not be subject to harmless error analysis. [Citation.]” (People v. Marshall (1996) 13 Cal.4th 799, 851.)
Here, the sentencing court’s error of failing to request a supplemental probation report does not reach the level of structural defect required for automatic reversal. As this Court has previously explained, the primary purpose of the probation report required by section 1203 is to assist the trial court in determining an appropriate disposition after conviction. (People v. Gorley (1988) 203 Cal.App.3d 498, 505-506.) The trial court in this case already had the benefit of a prior probation report, which was about seven months old. Thus, appellant received the benefits of an informed sentencing court, albeit a sentencing court that might not have been perfectly informed. We do not see how the failure to request a supplemental probation report in these circumstances is an error in the same league as deprivation of a right to counsel at trial or trial before a judge who is not impartial. Thus, we conclude that we should apply the Watson test to determine whether the error to request a supplemental probation report is prejudicial.
Applying the Watson test to this case, we conclude that appellant has presented nothing to suggest that there is a reasonable probability that he would have received a more favorable outcome. The sentencing court read and reviewed the initial probation report. Similar to Dobbins, “[t]he judge who sentenced defendant was the same judge who presided over the trial and was thus intimately acquainted with the facts underlying [appellant’s] violation of probation .…” (Dobbins, supra, 127 Cal.App.4th at p. 183.) Nothing in the record suggests there was some beneficial information that was unknown to the trial court. Thus, considering these circumstances, there is no reason to believe that appellant would have received a more favorable result such as reinstatement of probation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, J. Gomes, J.