Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF133960B, Darryl B. Ferguson, Judge.
Ann Hopkins, 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, Judy Kaida and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
Pablo Santobanez Garcia appeals from a judgment of 12 years in prison, the aggravated term. He contends that the trial court erred in not requesting a supplemental probation report prior to sentencing. He also contends that the abstract of judgment is erroneous. For the following reasons, we will remand for resentencing.
STATEMENT OF THE CASE
On November 23, 2004, Garcia, together with co-defendants Manuel Miguel Martinez and Jose Mario Lemus, were charged with the murder of Francisco Martinez. On January 27, 2005, Garcia entered a guilty plea, pursuant to a negotiated disposition, to voluntary manslaughter. It was agreed that the maximum sentence he could receive was 12 years state prison, but there was no stipulated sentence. Garcia waived his right to have his aggravating factors decided by a jury. He also agreed to cooperate with the district attorney and testify truthfully at the trial of his co-defendants. Finally, he agreed to waive time for sentencing until the other co-defendants were tried and sentenced. Garcia was to be placed in protective custody.
A probation report concerning Garcia was filed on April 18, 2005.
Pursuant to the negotiated agreement, Garcia testified at co-defendant Martinez’s trial on November 29, 2005. It appears that he also testified at Lemus’s trial, although the record does not reflect the date of his testimony. On September 6, 2005, Lemus entered a plea to voluntary manslaughter and admitted a street terrorism enhancement.
On October 30, 2007, the trial court sentenced Garcia to an aggregate state prison term of 12 years: the upper term of 11 years for voluntary manslaughter and a consecutive one year term for a firearm enhancement. A restitution fine of $220 was ordered under Penal Code section 1202.4; a stayed fine in the same amount was ordered under section 1202.45. Garcia also was ordered to pay victim restitution.
All further statutory references are to the Penal Code unless otherwise stated.
On November 19, 2007, Garcia filed a timely notice of appeal.
Because it was a negotiated plea, the statement of facts is based upon the probation report.
On the evening of April 8, 2003, a female eyewitness was riding in the back of a pickup when she saw three males, who appeared to be about 16 or 17, beating up another male in front of an auto repair shop in Porterville. She said they were hitting the victim with their hands and kicking him with their feet. The victim was on the ground, trying to get up. A short time later, she heard gunshots coming from the same area.
An officer soon responded to the scene. The victim, Francisco Martinez, was found lying face down against the front of a building, a puddle of blood around his mouth and head. He was not moving. The officer found three expended shotgun shells and shotgun shell wads in the area near the victim. People in the area reported seeing the three people who had been fighting with the victim getting into a vehicle and leaving the area.
The victim was dead on arrival at the hospital. An autopsy report revealed large and small shotgun pellets in his lungs, heart, and abdomen. He was wearing a red shirt at the time of the incident, was a known member of the Vario Central Poros, a Norteno gang, and had prior assault convictions.
Police found witnesses who reported that co-defendant Martinez had admitted shooting the victim. However, when contacted on July 15, 2003, Martinez denied having been present. He did, however, implicate appellant.
On July 17, 2003, while police were interviewing co-defendant Jose Lemus about another matter in which he was a witness, they asked Lemus if he knew about the shooting. Lemus admitted that he had been present when the shooting occurred. Lemus said that he and appellant had been near the Tule River Bridge earlier that evening and were walking to Rolando Bermudez’s house when they were attacked by some Nortenos. Appellant was “shanked” or stabbed, apparently with something like a screwdriver. Lemus ran to Bermudez’s house and appellant arrived there a short time later.
Lemus drove appellant, Rolando Bermudez, and co-defendant Martinez to Martinez’s house. Martinez went inside, and came back to the car wearing a long black trenchcoat. Lemus was driving the group to a store when they saw the victim (whom they did not know), raise his hands as if to say “What’s up” and stare at Lemus’s group disrespectfully, which Lemus described as “mad-dogging.”
At Martinez’s request, Lemus stopped the car near the auto repair shop. Lemus remained in the car but his three passengers got out. They confronted the victim. Appellant asked the victim where he was from. Lemus heard the victim say he was from VCP. The victim punched appellant first, and then they all began to fight. The victim ended up on the ground, and appellant and Bermudez continued to kick and hit him. When the victim got up, they hit him again, at which time he kneeled. The victim got up again as both appellant and Bermudez were walking away. At this point, Martinez pulled out a shotgun and shot the victim. Lemus was shocked at this, and he said that both appellant and Bermudez looked surprised as well.
Lemus’s group ran back to the car and Lemus drove them from the scene. He dropped the others off near the Jaye Street Bridge and went home.
Lemus identified himself as a Sureno, and said that Martinez also was a Sureno. He identified the victim as a Norteno.
Police subsequently interviewed appellant. He initially denied involvement, but after police confronted him with what Lemus said, he admitted to fighting the victim. Appellant told the police that he had been at the Jaye Street Bridge drinking beer with Rolando Bermudez, Jose Lemus, and David Lopez when a group of guys yelled, “Norte.” They ran after appellant and caught him. Someone he did not know stabbed him while two other people kicked him. He had been stabbed in the back or left chest area.
After the attack, appellant had gone to Bermudez’s house. Bermudez, Lemus and Martinez were there. The group then went by car to a store. While on the way to the store, they saw the victim, wearing a reddish shirt, put his arms in a “what’s up” gesture. As he got out of the car, the victim was saying “Norte.” When the car stopped, everyone but Lemus got out. The victim struck appellant in the face, and then appellant, Martinez, and Bermudez all started fighting the victim.
Appellant himself said he struck the victim five to six times in the face. The victim looked as though he was pretty messed up, so appellant started back to the car. He then heard three gunshots. When he turned back, he saw that co-defendant Martinez and Bermudez were standing behind him. He thought that the victim was shooting at them, so he ran back to the vehicle. Martinez and Bermudez got into the car behind him. Lemus then drove them to the Jaye Street Bridge, where Lemus dropped them off.
Appellant said he learned that co-defendant Martinez had a shotgun before the shooting, as they were driving to the store to get more beer. Asked about his gang affiliation, he said that he was a Crip from Florida. Crips, like Surenos, claim the color blue and the number 13. Appellant said that when he first arrived in Porterville, he got along with everyone, but because of his skin color, people assumed that he was a Sureno and then Nortenos started turning against hm. He was friendly with Surenos, but said he would fight with anyone who challenged him.
According to a police gang expert, appellant was “affiliated” with or “aligned” with the Surenos in this case because “he needs to protect himself from [attacking] Northerners.” The gang expert could not say that defendants’ primary purpose in banding together was to commit crimes. He did not know anything about Florida Crips.
DISCUSSION
A.
Supplemental Probation Report
On appeal, Garcia 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 Garcia, the failure to request a supplemental probation report requires automatic reversal, or alternatively, it was not harmless. We disagree on both points.
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.)
Where a felon has a prior probation report, California Rules of Court, rule 4.411(c), provides that “‘[t]he court shall 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.’” (Dobbins, supra, 127 Cal.App.4th at p. 180.) What time period constitutes a “significant period of time” is not defined. However, “[t]he 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, it is unlikely that a new investigation is needed.’ (Advisory Com. com., West's Cal. Rules of Court (2005 ed.) foll. rule 4.411, p. 271, italics [omitted].)" (Dobbins, supra, 127 Cal.App.4th at p. 181.) 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 April 18, 2005. Appellant was not sentenced to probation until October 30, 2007. This is a period greatly in excess of six months, and thus, it is a significant period of time. Therefore, the trial court erred in proceeding with sentencing without requesting 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 pp. 182-183 [“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.]” (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 had the benefit of a prior probation report, as well as, the benefit of a written statement in mitigation filed by defense counsel. Moreover, at the sentencing hearing, defense counsel was able to present argument on various mitigation factors. 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 as well as the written statement in mitigation prior to sentencing. It listened to arguments presented by defense counsel. The court was aware that Garcia had actually testified against his co-defendants, that he was remorseful, that he received a Bible from one of the victim’s relatives, that he was accepted into a prison ministry program, and that he had a moderate criminal history. Similar to Dobbins, the trial judge who presided over the plea agreement in 2005 is the same judge who presided over sentencing in 2007. (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. The fact that the sentencing court cited other aggravating factors besides that listed in the original report in its decision to sentence Garcia to the aggravated term also supports our conclusion that the sentencing court did not solely rely upon an old probation report. Thus, considering these circumstances, there is no reason to believe that appellant would have received a more favorable result such as a middle-term sentence.
B.
Garcia also contends that the abstract of judgment is erroneous because it does not accurately reflect the order of the trial court with respect to victim restitution. The abstract of judgment indicates an order of $7,177.66 of victim restitution to be paid solely by appellant, and an order of $6,000 to one victim and $3,970 to another, to be paid jointly and severally by appellant, Martinez, and Lemus. Garcia contends that the trial court orally pronounced that all four participants in the crime (i.e., appellant, Martinez, Lemus, and Rolando Bermudez) would be jointly and severally liable for the various victim restitution amounts. We agree that the abstract of judgment is erroneous because it did not include Rolando Bermudez as jointly and severally liable for the specific restitution amounts of $6,000 to one victim and $3,970 to another victim.
However, we disagree that the abstract of judgment is erroneous with respect to the restitution amount of $7,177.66. At the sentencing hearing, the prosecutor originally stated that she had a copy of the statement of the amount that the Victim’s Compensation Government Claims Board is asking for in this case ($7,177.66.) She then goes on to say: “The victim’s family has asked for some specific amount of restitution. I showed this to [defense counsel] earlier, and I do have a copy. And I’m asking the court to [order] joint and several liability on that as well.” When the court made its oral pronouncement of sentence, it only ordered joint and several liability on the specific restitution amounts. Because an abstract of judgment must conform to the trial court’s oral pronouncement of sentence, see People v. Zackery (2007) 147 Cal.App.4th 380, 385, it was not error for the superior court clerk to conform the abstract of judgment to the oral pronouncement. It is possible that in the context of the prosecutor’s request, the court intended to order joint and several liability on the $7,177.66 of victim restitution but made a mistake in its oral pronouncement. However, that mistake is not a legal error that we can correct given that the trial court has the discretion to make the orders listed in the abstract of judgment. Moreover, there is no evidence that the trial court had the intent to order joint and specific liability. The prosecutor’s statements on the victim restitution issue can be interpreted in the manner described by the abstract of judgment. The prosecutor could be asking for specific victim restitution, in addition to the victim restitution payable to the Victim’s Compensation Government Claim Board. Then, as a further request, the prosecutor is asking for joint and several liability on the specific victim restitution. Thus, there is insufficient evidence in the record for us to modify the abstract of judgment on this point. On remand, however, the superior court may clarify any victim restitution condition or correct any mistakes about victim restitution.
DISPOSITION
The case is remanded for resentencing. The superior court shall prepare an amended abstract of judgment adding Rolando Bermudez to the list of people who are jointly and severally liable for specific victim restitution, and shall forward a copy of the same to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR Cornell, J.,Gomes, J.