Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F05517
NICHOLSON, J.
In 2004, defendant pled no contest to possession of cocaine for sale (Health & Saf. Code, § 11351.5) and admitted a prior conviction for the same crime (Health & Saf. Code, § 11370.2, subd. (a)). The trial court imposed an eight-year state prison sentence but suspended execution of the sentence and granted probation.
In 2007, defendant violated probation when, as a felon, he possessed a firearm. The court imposed the suspended eight-year term.
On appeal, defendant contends the trial court erred by (1) imposing the suspended term without obtaining a supplemental probation report and (2) imposing duplicate restitution fines. We conclude that one of the restitution fines must be stricken but find no other prejudicial error. Accordingly, we modify and affirm the judgment.
FACTS
The facts of defendant’s crimes are not at issue. A police search of defendant in 2004 revealed that he possessed 13.8 grams of rock cocaine. Another search in 2007 revealed that he possessed a semi-automatic firearm.
PROCEDURE
Defendant has a history of crimes.
In 1994, when defendant was 20 years old, he possessed cocaine for sale. (Health & Saf. Code, § 11351.5.) The court granted probation.
In 1995, he stole a car. (Veh. Code, § 10851, subd. (a).) The court granted probation.
In 1996, he again possessed cocaine for sale. (Health & Saf. Code, §§ 11351.5.; 11370.2, subd. (a) [enhancement for prior].) The court sentenced defendant to six years in state prison.
In 2003, defendant stole another car. (Veh. Code, § 10851, subd. (a).) The court granted probation.
In 2004, yet again, defendant possessed cocaine for sale. He made a deal with the district attorney to plead no contest. The deal provided for an eight-year state prison term -- five years for the crime (Health & Saf. Code, § 11351.5) plus three years for a prior conviction for the same crime (Health & Saf. Code, § 11370.2, subd. (a)). The sentence would be suspended and defendant would be placed on probation for five years with a condition that he serve 365 days in county jail. The trial court accepted and implemented the deal.
In 2007, defendant violated probation by possessing a firearm. After a hearing during which the trial court found that defendant had violated probation, the court reviewed defendant’s criminal history and imposed the suspended sentence, stating: “[G]iven the circumstances in this case, I cannot believe it is in the best interest of society, or justice for that matter, to do anything but impose the term previously given to [defendant], which is eight years in state prison.”
The District Attorney declined to prosecute this violation separately as a crime.
The trial court gave defendant custody credits for his 365 days in county jail and added 325 days for his jail time since his most recent arrest, for a total of 690 days of custody credit.
DISCUSSION
I
Probation Report
Penal Code section 1203, subdivision (b)(1) requires the trial court to obtain a probation report before sentencing if the defendant is eligible for probation. Subdivision (b)(4) of the same section provides that only a written stipulation or an in-court oral waiver suffices to eliminate the requirement to obtain a probation report. The courts have interpreted this section as requiring the court to obtain a supplemental probation report before sentencing a defendant after a violation of probation if the new sentencing proceedings take place a significant period of time after the original report was prepared. (People v. Dobbins (2005) 127 Cal.App.4th 176, 180-181 (Dobbins) [eight months constitutes significant period of time]; Cal. Rules of Court, rule 4.411(c).)
Penal Code section 1203, subdivision (b)(1) states: “[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.”
Penal Code section 1203, subdivision (b)(4) states: “The preparation of the report or the consideration of the 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. . . .”
Although the trial court ordered a probation report before the original sentencing hearing, the court did not order a supplemental probation report three years later when defendant violated probation. Defendant contends on appeal that the failure to order a supplemental probation report is prejudicial error. We disagree. Even assuming the trial court erred by not obtaining a supplemental probation report, the error was harmless.
While defendant did not expressly waive preparation of a supplemental probation report, he also did not request one or object to the absence of a supplemental probation report. Although the parties agree as to what happened with respect to a supplemental probation report (nothing, that is), they disagree concerning its effect. Defendant maintains that an express waiver is required, while the Attorney General asserts that no waiver was required because defendant was statutorily ineligible for probation. Defendant responds to the Attorney General’s argument by noting that, although defendant was statutorily ineligible for probation in the first place, the plea agreement made him eligible. We need not resolve this dispute because, even if defendant did not forfeit the issue, any error was harmless.
Failure to obtain a supplemental probation report implicates California statutory law only. (Dobbins, supra, 127 Cal.App.4th at p. 182.) Therefore, we reverse only if there is a reasonable probability that defendant would have obtained a more favorable result if the trial court had ordered a supplemental report. (Ibid.) In Dobbins, we found that the trial court erred by not obtaining a supplemental report, but we concluded that the error was harmless on the “peculiar facts of [that] case.” (Id. at p. 183.) Those facts included a criminal history of at least six felonies and four misdemeanors and poor performance on parole and probation. The judge who sentenced the defendant after the probation violation had presided over the trial. (Id. at pp. 178, 183.)
Here, it is not reasonably probable that defendant would have obtained a more favorable result if the trial court had obtained a supplemental probation report. As in Dobbins, defendant has an extensive criminal history and he has a history of poor performance on probation. And the trial court made it clear that, because of defendant’s criminal history and violations of probation, the court was not inclined at all toward a further grant of probation. Accordingly, it would have provided no benefit to defendant to have a supplemental probation report.
Defendant asserts the error was not harmless because (1) he “cannot know what a probation report might have disclosed,” (2) the trial court was not apprised of the restitution fine imposed at the original sentencing hearing, and (3) there is no way to confirm, on appeal, that the court’s award of custody credits is correct. None of these arguments establishes prejudice.
The vague assertion that defendant cannot know what a supplemental probation report might have disclosed is unconvincing. Defendant filed a statement in mitigation before the trial court imposed the sentence. Therefore, he had a chance to present any facts and argument beneficial to him. It is unlikely that a supplemental probation report would have added anything, especially something defendant did not already know, toward convincing the trial court to grant further probation.
The contention that the absence of a supplemental probation report led to the court’s error in imposing a duplicate restitution fine is equally unpersuasive. Even without a supplemental probation report, the record revealed that the trial court had imposed a restitution fine during the original sentencing. Defendant further contends that the supplemental probation report would have accounted for any payments defendant has made toward that fine. We fail to see the relevance of any payments he may have made given his criminal history and poor performance on probation. It would not have changed the trial court’s mind concerning revocation of probation.
As for the custody credits issue, an appeal is not the remedy for failure to properly calculate those credits. (People v. Culpepper (1994) 24 Cal.App.4th 1134, 1138 [remedy is to move for correction in trial court].) Accordingly, defendant’s argument that he cannot tell from the record on appeal whether the correct credits were awarded is unpersuasive.
Because we conclude that, even assuming the trial court erred by not ordering a supplemental probation report, any such error was harmless, we need not consider whether the trial court actually erred.
II
Restitution Fine
In 2004, the trial court imposed a $200 restitution fine pursuant to Penal Code section 1202.4. Again in 2007, the trial court imposed a restitution fine of $200. The parties agree that the second restitution fine is duplicative and must be stricken. We also agree.
Because a restitution fine imposed when probation is granted survives the revocation of probation, there is no authority to impose another restitution fine after revocation. The remedy is to strike the second restitution fine. (People v. Chambers (1998) 65 Cal.App.4th 819, 822-823.)
DISPOSITION
The Penal Code section 1202.4 restitution fine of $200 imposed on September 25, 2007, is stricken. As modified, the judgment is affirmed.
We concur: BLEASE, Acting P. J., ROBIE, J.