Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F08616
SCOTLAND, P.J.
In a negotiated disposition, defendant Deion Lewis Griffin pled no contest to assault with force likely to cause great bodily injury, admitted he had served a prior prison term, and stipulated he would receive the middle term of three years, plus a term of one year for the prior prison term enhancement.
Consistent with the plea agreement, defendant was committed to prison for an aggregate term of four years. His sole contention on appeal is that the matter must be remanded for a new sentencing hearing because the court neglected to obtain a probation report, as required by Penal Code section 1203, subdivision (b)(4), or to obtain his waiver of that requirement. (Further section references are to the Penal Code.) We agree that the trial court erred in failing to obtain a probation report or an appropriate waiver on the record. Finding the error to be harmless, we shall affirm the judgment.
FACTS
The victim, Jennifer King, had been dating defendant since May 2006. On August 19, 2006, defendant threw a brick through a window of King’s car.
The following day, when King met with defendant to return some of his belongings, he grabbed her cell phone and broke it in half. As King gave defendant his pool cue case, it opened and the pool cue fell to the ground. Defendant picked up the top piece of the pool cue and swung it at King, hitting her in the right eye. King fought back, grabbing another part of the pool cue, putting it against defendant’s neck, and throwing him against the car. He pushed her off, and she fell to the ground. King then got into her car and left.
About one month later, on September 18, 2006, defendant and King got into an argument over paperwork to a car he had sold. Defendant called King a smart ass and grabbed her. She threw him on the bed and hit him three times. He then grabbed her by the hair and dragged her around on the floor. His forearm was across her neck, and he head butted her. They continued to argue about the whereabouts of the paperwork, and he bent one of her fingers back so she could not move it.
By September 27, 2006, the relationship was “pretty much through,” but they were still living together. As defendant was leaving the house, he and King got into another altercation. When King went inside and locked him out, defendant hit a window, but it did not break. He ultimately was able to enter the house. To get away from him, King went through an upstairs window and tried to jump off the roof. Defendant followed King onto the roof, grabbed her, pushed her toward the edge of the roof, and told her: “[I]f you’re going to jump, I’ll help you.” After they struggled for a while, defendant let King go and told her to go back inside. As she went in through the window, she hit the window with her fist. When she saw the expression on defendant’s face, she started running toward the door. Defendant came up behind her and put her in a choke hold. She lost consciousness.
Upon regaining consciousness, King tried to call the police, but the phone lines had been cut. Defendant said: “[D]o you think I’m really that stupid?” He later admitted he had cut the phone lines. He also threatened King, saying: “[A]re you going to start listening to me, bitch, do you think I’m serious now, if not, I’ll kill you.” Defendant eventually let King go after she apologized for “getting out of line.” As a result of the fight, King lost her voice, sustained scratches on her elbow and bruises on her legs, and “could barely move for about three to four days.”
DISCUSSION
Defendant was charged with committing battery with great bodily injury, two counts of spousal abuse, felony criminal threats, felony severing a phone line, assault with a deadly weapon, and two counts of misdemeanor vandalism. It was further alleged that he had served two prior prison terms.
After the preliminary hearing, defendant and the prosecutor entered into a plea agreement whereby the assault charge would be amended so it would not be a “strike” within the meaning of the “three strikes law”; defendant would admit the amended assault charge and one prior prison term allegation; the court would impose a stipulated aggregate sentence of four years; and the prosecutor would dismiss the remaining charges. It also appears the parties agreed that a restitution fund fine of $400 would be imposed. After having the sentence and other consequences of the plea explained to him, defendant pled no contest to assault with force likely to cause great bodily injury and admitted the prior prison term allegation.
Defendant waived time for sentencing, and the matter was submitted. Immediately thereafter, the court sentenced defendant in accordance with the plea agreement to an aggregate prison term of four years, a restitution fine of $400, and other mandatory fees. Defendant did not waive preparation of a probation report.
Defendant contends the court impermissibly imposed judgment without receiving a probation report or obtaining a waiver of the report as required by section 1203 and, thus, the matter must be remanded for a new sentencing hearing. The People retort that defendant forfeited this claim of error by entering into a plea that specified his sentence. The People also contend the record supports an inference that the probation report requirement was impliedly waived.
As we will explain, defendant is correct that section 1203, subdivision (b)(4) requires an express waiver of the probation report, either in writing or orally on the record. Although his plea did not forfeit his right to raise the error, we conclude that, under the circumstances of this case, the court’s failure to get an express waiver of a probation report was harmless.
Section 1203, subdivision (b)(4) states: “The preparation of the report or the consideration of the [probation] report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except that there shall be no waiver unless the court consents thereto. However, if the defendant is ultimately sentenced and committed to the state prison, a probation report shall be completed pursuant to Section 1203c.” (Italics added.) Neither alternative requirement was met in this case.
The People argue defendant’s “failure to object to immediate sentencing demonstrates an implied waiver of a pre-sentence probation report.” They cite People v. Begnaud (1991) 235 Cal.App.3d 1548 and People v. Tempelis (1964) 230 Cal.App.2d 596 as support for their argument, but overlook that those decisions were issued prior to the 1996 enactment of subdivision (b)(4) of section 1203, which requires waiver of a probation report to be express and on the record.
Also overlooked by the People, as well as by defendant, is the decision of this court in People v. Dobbins (2005) 127 Cal.App.4th 176 (hereafter Dobbins). Although Dobbins dealt with a supplemental probation report, its interpretation of section 1203, subdivision (b) applies equally to a defendant’s waiver of an original probation report. “[The] language [of the statute is] straightforward and unambiguous. Here, the prosecuting and defense attorneys entered no written stipulation of waiver of a written report nor was such a stipulation made orally in open court. The evident intention of section 1203, subdivision (b)(4), is to clarify how waiver of a probation report may occur and to give the trial judge a chance to veto any waiver. In light of the clear command of this statute, defendant did not waive a probation report. Nor has he forfeited his claim on appeal. To apply the forfeiture doctrine in this context would result in an effective waiver of a probation report in a manner not countenanced by section 1203, subdivision (b)(4). The aim of the statute would be subverted.” (Id. at p. 182.)
That the trial court failed to obtain from defendant either a written waiver of the probation report or an oral waiver in open court, as required by the statute, does not mean we must reverse and remand for a new sentencing hearing. As Dobbins pointed out, there is “no federal constitutional right to a . . . probation report. 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.)” (Dobbins, supra, 127 Cal.App.4th at p. 182.)
This is not a case in which we “must speculate concerning how information in a probation report could have affected the trial court’s [sentencing] decision.” (Dobbins, supra, 127 Cal.App.4th at p. 182.) There was a stipulated sentence. Defendant agreed to an aggregate prison sentence of four years and a restitution fund fine of $400. In exchange for this sentence, a number of counts against him were dismissed and the felony assault charge to which he pled was amended so it would not constitute a “strike” within the meaning of the three strikes law. All other components of his sentence were mandatory.
In defendant’s view, the matter should be remanded for the court to consider a probation report “to determine, in the exercise of its discretion, whether the agreement between [defendant] and the prosecution was acceptable. If the court declines to follow the agreement, [defendant] would be allowed to withdraw his plea and have the case set for trial.” Defendant ignores that the court already has exercised its discretion to accept the plea agreement. Having accepted the agreement, the court was bound to sentence defendant consistent with the negotiated plea. (People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047.)
Because it is not reasonably probable that defendant would have obtained a more favorable result if the trial court had received and considered a probation report, its failure to do so or to obtain from defendant a proper waiver of a probation report was harmless error.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, J., RAYE, J.