Opinion
NOT TO BE PUBLISHED
City and County of San Francisco Super. Ct. No. 196614.
Swager, J.
This appeal has been taken from the revocation of defendant’s probation that resulted in imposition of a six-year sentence in state prison. He complains of the failure of the trial court to obtain and consider a supplemental probation upon revocation of his probation. We find that although error occurred, it was not prejudicial to defendant, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On December 22, 2005, defendant entered a plea of guilty to rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3)), and admitted a prior prison term served (Pen. Code, § 667.5, subd. (b)). After a probation report was received on January 12, 2006, the trial court suspended imposition of sentence and placed defendant on probation for three years.
In light of defendant’s plea and the issue raised on appeal, we need not recite the details of the underlying offense. We point out that the record shows defendant sexually assaulted an extremely inebriated and only intermittently conscious woman in Golden Gate Park.
A motion to revoke defendant’s probation was filed after his arrest for battery (§ 242) and possession of rock cocaine (Health & Saf. Code, § 11350, subd. (a)) on January 22, 2006. After the arrest, defendant remained in custody until he was tried before a jury on the new charges in January of 2007. On January 19, 2007, a mistrial was declared after the jury deliberations failed to result in a verdict.
Again, we need not relate the facts pertinent to the offenses for which defendant was arrested, except to state that defendant repeatedly punched a woman, pulled her hair, and pushed her face into a car window following a brief confrontation on Market Street in San Francisco. When the police arrested defendant nearby, he was found in possession .08 gram of rock cocaine. Defendant acknowledged that he grabbed the victim’s head and pushed her aside after unintentionally bumping into her on the street, but testified that he did not punch her.
With defendant still incarcerated, at a hearing on the motion to revoke probation on January 24, 2007, he waived his constitutional rights, stipulated to commission of a violation of Health & Safety Code section 11350, and submitted the issue of a probation violation to the trial court on the testimony at the prior trial. The court found a probation violation, revoked defendant’s probation, and sentenced him to the middle term of six years in state prison for the offense of rape of an intoxicated person (§ 261, subd. (a)(3)), with total credit for time served of 774 days. This appeal followed.
DISCUSSION
Defendant argues that the probation revocation and sentencing proceedings were flawed by the failure of the trial court to request and consider “an updated probation report” in violation of section 1203, subdivision (b)(1), which in pertinent part provides: “[I]f 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.” He claims that the “twelve-month lapse of time” from the submission of the first probation report on January 12, 2006, to the imposition of probation at the sentencing hearing on January 24, 2007, required a supplemental report under section 1203, subdivision (b)(1), and rule 4.411. Defendant also maintains that “it is reasonably probable” he “would have received a more favorable result at the sentencing hearing in the absence of the error,” so the reversal of the judgment is warranted.
Section 1203, subdivision (b)(2)(A) adds: “The probation officer shall immediately investigate and make a written report to the court of his or her findings and recommendations, including his or her recommendations as to the granting or denying of probation and the conditions of probation, if granted.”
Rule 4.411(a) repeats the mandate of section 1203, subdivision (b)(1), that, “If the defendant is eligible for probation, the court must refer the matter to the probation officer for a presentence investigation and report. Waivers of the presentence report should not be accepted except in unusual circumstances.” Rule 4.411(c) adds: “The 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.”
We agree with defendant that the trial court was obligated to direct the probation department to update the report before deciding to revoke probation and impose a state prison sentence. Section 1203.2, subdivision (b), requires referral to the probation officer, preparation of a written report, and consideration of its contents by the trial court prior to any revocation of probation. (See People v. Santellanes (1989) 216 Cal.App.3d 998, 1002.) Defendant remained eligible for probation, so preparation and review of a current probation report was also compulsory in the present case under section 1203, subdivision (b), and rule 4.411(a). While an updated report is not necessarily required in some cases where a recent report has been prepared that may be incorporated by reference, the court in People v. Dobbins (2005) 127 Cal.App.4th 176, 180, concluded: “ ‘The 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.’ ” (Quoting rule 4.411(c).) The court explained: “The Advisory Committee Comment to the rule 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.” (Dobbins, supra, at p. 181.) Here, one year passed from the submission of the original probation report to the date defendant’s probation was revoked. Thus, the trial court’s failure to consider a supplemental probation report was error.
We find the error harmless, however. The error implicates only California statutory law, not any federal constitutional right, so the governing test of prejudice is the standard of People v. Watson (1956) 46 Cal.2d 818. (People v. Dobbins, supra, 127 Cal.App.4th 176, 182.) We do 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, at p. 182.)
Nothing in the record indicates to us that a supplemental report would have contained any new, mitigating information. Save a brief 10-day period, defendant was incarcerated the entire time between the initial probation report and the probation revocation hearing. Little that occurred in county jail during the year-long incarceration would have reflected significantly upon defendant’s suitability for a further grant of probation. Defendant suggests that a “year of psychological programming and counseling” in county jail may have positively impacted his mental health condition. We certainly hope that is the case, but at the probation revocation hearing defense counsel did not impart to the trial court any suggestion that defendant had received successful counseling that rendered him a better candidate for probation. To the contrary, counsel complained that during the short time period defendant was released from custody he did not receive any “tools to deal with” his anger management or other mental health impairments. Defense counsel also mentioned that defendant had “been seeing a counselor every week” while in jail, and may “continue to grow” with further counseling, but did not state that any abrupt improvement in defendant’s condition had occurred. Thus, even without a supplemental report, the court was given at least an update on defendant’s mental health status, which did not support a more favorable disposition. Defendant has not advanced any mitigating factors or changed circumstances that may have been articulated in an updated report. We realize that we can only speculate as to the contents of a supplemental report, but defendant’s burden is to establish prejudice, and nothing he has presented suggests the report would have included beneficial information that was unknown to the trial court. (See People v. McClellan (1993) 6 Cal.4th 367, 378.)
Further, a continuation of defendant’s probation or imposition of a lesser sentence was entirely inappropriate given his history and the nature of his probation violation. As the prior probation report noted, defendant had a lengthy juvenile and adult history of numerous drug and theft convictions, he served prior prison terms, and his past performance on probation or parole was poor. The current rape offense was violent, and was committed on a particularly vulnerable victim. A monumental benefit was conferred upon defendant by the initial grant of probation, yet within 10 days he committed a drug offense and another act of street violence. Finally, the court imposed the middle not the aggravated term of imprisonment upon defendant. We find that it is not reasonably probable defendant would have obtained a more favorable result if the trial court had received and considered a supplemental probation report. (People v. Dobbins, supra, 127 Cal.App.4th 176, 183; People v. Begnaud (1991) 235 Cal.App.3d 1548, 1556, fn. 7.)
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.
All further statutory references are to the Penal Code, unless otherwise indicated; all references to rules are to the California Rules of Court.