Whether the court erred in failing to order that a probation report be prepared prior to sentencing? (§ 1203, subd. (b), People v. Goldstein (1990) 223 Cal.App.3d 465.)” DISCUSSION
) The First and Second Appellate Districts have followed Webb. (See People v. McClure (1987) 191 Cal.App.3d 1303, 1306 [ 237 Cal.Rptr. 90]; People v. Goldstein (1990) 223 Cal.App.3d 465, 470-472 [ 272 Cal.Rptr. 881]; People v. Grimble (1987) 196 Cal.App.3d 1058, 1062 [ 242 Cal.Rptr. 382]; People v. Tatlis (1991) 230 Cal.App.3d 1266, 1272 [ 282 Cal.Rptr. 55].) Although the Fourth Appellate District has cited Brady with approval, it has not actually applied the Brady holding.
The trial court's failure to secure a current probation report is waived on appeal by the failure to object. ( People v. Begnaud (1991) 235 Cal.App.3d 1548, 1554-1555 [ 1 Cal.Rptr.2d 507]; People v. Goldstein (1990) 223 Cal.App.3d 465, 472 [ 272 Cal.Rptr. 881].) Arguments that a sentencing judge improperly read a preliminary hearing transcript and a codefendant's superior court file were waived when defense counsel never objected in the trial court and the issue was raised for the first time on appeal.
( Ibid.) The Webb court then concludes, based on the language of Penal Code section 1203, subdivision (g), which gives the court discretion to order the probation officer to investigate facts relating to sentencing when preparing a restitution report, that the matter is not mandatory but lies entirely within the sound discretion of the resentencing court. ( Id. at p. 409; accord, People v. Goldstein (1990) 223 Cal.App.3d 465, 470-472 [ 272 Cal.Rptr. 881] ; People v. Grimble (1987) 196 Cal.App.3d 1058, 1062-1064 [ 242 Cal.Rptr. 382]; People v. McClure (1987) 191 Cal.App.3d 1303, 1305-1306 [ 237 Cal.Rptr. 90].) As far as it goes, the Webb line of cases is more soundly reasoned than the Brady line of cases.
The present case involved ordinary cocaine and not cocaine base, commonly referred to as "crack cocaine." (See People v. Goldstein (1990) 223 Cal.App.3d 465, 469 [ 272 Cal.Rptr. 881] .) Subdivision (b)(2) of Penal Code section 1203.073 pertains to the possession for sale or sale of methamphetamine; subdivision (b)(3) pertains to the manufacture by chemical extraction or synthesis of various controlled substances; subdivision (b)(4) pertains to the involvement of minors in the manufacture or sale of heroin, cocaine base, cocaine or methamphetamine; subdivision (b)(5) pertains to the possession for sale of cocaine base; and subdivision (b)(7) pertains to the sale or offer to sell cocaine base.
As an initial matter, Harrison did not object to the lack of a probation report prior to sentencing and thus has failed to preserve this issue on appeal. (People v. Goldstein (1990) 223 Cal.App.3d 465, 472; People v. Llamas (1998) 67 Cal.App.4th 35, 38-39.) In any event, Harrison has failed to demonstrate the omission, if it was erroneous, was prejudicial; he does not identify what information a probation report would have provided that was not already available to the trial court (e.g., his youth) and that would have been reasonably likely to persuade the trial court to impose a more favorable sentence. (People v. Dobbins (2005) 127 Cal.App.4th 176, 182 [review of failure to obtain probation report governed by Watson harmless error standard].)
Absent a waiver, "[i]f a person is not eligible for probation, the judge shall refer the matter to the probation officer for an investigation of the facts relevant to determination of the amount of a restitution fine pursuant to subdivision (b) of Section 1202.4." (§ 1203, subd. (g); People v. Goldstein (1990) 223 Cal.App.3d 465, 471 ["the 1984 amendment made mandatory a referral to the probation department for investigation of facts relevant to determination of the amount of restitution fines"].) In setting restitution above the minimum, courts shall consider any relevant factors, including "the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime."
The rule requiring a supplemental probation report has a longstanding exception—namely, that "a supplemental report is required only if the defendant is eligible for probation." (People v. Johnson (1999) 70 Cal.App.4th 1429, 1432 (Johnson); People v. Llamas (1998) 67 Cal.App.4th 35, 39 (Llamas); People v. Goldstein (1990) 223 Cal.App.3d 465, 471-472 (Goldstein); People v. Webb (1986) 186 Cal.App.3d 401, 408-409; People v. McClure (1987) 191 Cal.App.3d 1303, 1306 (McClure); People v. Franco (2014) 232 Cal.App.4th 831, 834 (Franco); People v. Murray (2012) 203 Cal.App.4th 277, 289, overruled on other grounds in People v. Gutierrez (2014) 58 Cal.4th 1354, 1370-1371.) Where a defendant is ineligible for probation—even presumptively so—the trial court has the option to order a supplemental report "in [its] discretion."
We agree with Webb and the cases that have followed it — which include Bullock, supra, 26 Cal.App.4th at p. 988. (See People v. McClure (1987) 191 Cal.App.3d 1303, 1306; People v. Goldstein (1990) 223 Cal.App.3d 465, 470-472; People v. Grimble (1987) 196 Cal.App.3d 1058, 1062; People v. Tatlis (1991) 230 Cal.App.3d 1266, 1272.) At that time, the relevant portion of the section 1203, subdivision (g) was almost identical to what is found in current section 1203, subdivision (g) (quoted in the text, ante), and provided: "If a person is not eligible for probation, the judge may, in his discretion, refer the matter to the probation officer for an investigation of the facts relevant to the sentencing of the person."
Because Naval was statutorily ineligible for probation, the trial court was not required to obtain a supplemental probation report prior to resentencing. (See People v. Murray (2012) 203 Cal.App.4th 277, 289 ["Because [defendant] was not eligible for probation, no supplemental probation report was required"]; People v. Llamas (1998) 67 Cal.App.4th 35, 39 [defendant was statutorily ineligible for probation due to prior violent felony, therefore probation report was discretionary]; People v. Bullock (1994) 26 Cal.App.4th 985, 989 [stating "the Legislature knows how to make a referral for a probation report mandatory, and . . . [i]ts failure to do so when the defendant is not eligible for probation reflects a legislative decision that a report is not required in every instance]; People v. Goldstein (1990) 223 Cal.App.3d 465, 472 [trial court's decision whether to obtain a probation report before sentencing was discretionary where defendant was ineligible for probation due to prior drug offense]; see also People v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1432 [where defendant fails to request a supplemental probation report, voices no objection to proceeding with resentencing without a supplemental probation report, and states there is no legal cause why judgment cannot be imposed, the issue of requiring a supplemental probation report is waived because section 1203, subdivision (b)(4), which provides that supplemental probation reports cannot be waived unless stipulated to by both parties and the stipulation is either filed or orally stated in open court, applies only to persons eligible for probation].) In short, the trial court was not under a mandatory duty to order a supplemental probation report prior to resentencing Naval.