Opinion
E051719 Super.Ct.No. INF058861
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. REYNALDO VALDEZ LINARES, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Randall Einhorn, and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge. Affirmed.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Randall Einhorn, and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
In July 2008, defendant and appellant Reynaldo Valdez Linares pled guilty to one count of assault with force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(1).) In return, the remaining allegations were dismissed, and defendant was placed on formal probation for a period of 36 months on various terms and conditions, including completing a 52-week domestic violence program.
All future statutory references are to the Penal Code unless otherwise stated.
In August 2010, following a formal probation revocation hearing, the trial court found that defendant had violated the terms and conditions of his probation by failing to complete the required domestic violence program. The court thereafter imposed the middle term of three years, suspended the execution of the sentence, and reinstated defendant on supervised probation with additional terms and conditions, including serving 180 days in county jail. Defendant's sole contention on appeal is that the trial court prejudicially erred in sentencing defendant without first obtaining a probation report. We reject this contention and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2007, defendant threatened and assaulted his wife with a knife by means of force likely to cause great bodily injury.
On August 30, 2007, following a preliminary hearing, an information was filed charging defendant with making criminal threats (§ 422); assault with a deadly weapon, to wit, a knife, by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)); and brandishing a deadly weapon, to wit, a knife (§ 417, subd. (a)(1)).
On July 22, 2008, defendant pled guilty to assault with force likely to cause injury without the use of any weapon (§ 245, subd. (a)(1)); in return, the remaining allegations were dismissed, and defendant was promised a grant of probation. Defendant thereafter requested immediate sentencing and waived a referral to the probation department. The court suspended the execution of sentence and placed defendant on formal probation for a period of 36 months on various terms and conditions, including completing a 52-week domestic violence program.
On July 7, 2009, the probation department filed an allegation of violation of probation memorandum, alleging defendant had failed to complete his domestic violence program. On September 22, 2009, defendant admitted the violation. Defendant was subsequently reinstated on probation on the same terms and conditions.
The probation department thereafter filed another allegation of violation of probation memorandum, alleging that defendant had again failed to complete the 52-week domestic violence program. The probation officer noted that since defendant's first violation of probation, he had "remained inconsistent with his monthly reporting, and ha[d] been terminated from the Domestic violence program." The probation officer also pointed out that it had been reported by defendant's domestic violence program director that defendant had a substance abuse problem; the probation officer therefore recommended the court add substance abuse terms to defendant's probationary conditions and that defendant serve 30 days in county jail.
A formal revocation of probation hearing was held on August 24, 2010. Following testimony from defendant's probation officer, defendant's domestic violence program director, and defendant, the trial court found that defendant had willfully violated the terms of his probation by failing to complete a domestic violence program by January 6, 2010. The trial court thereafter indicated that it would not be following the probation officer's recommendation of 30 days in custody. The prosecutor requested that a supplemental probation report be completed. Defense counsel replied, "I'm just not clear what the supplemental report would be for." Defense counsel also stated, ". . . I don't think that that's necessary, Your Honor."
When the court asked defense counsel why such a report would be unnecessary, counsel responded, "Your Honor, I believe . . . based on what the testimony . . . that we've heard today, that [defendant] shouldn't be treated like a person who attended no class. . . . [H]e did attend classes. [¶] And in terms of . . . what percentage of classes he actually attended. We're talking like missing 28 percent of classes. We're not talking like attended 20 percent of classes. He's attended more than half of the classes, more than three-quarters of the classes." Defense counsel further explained, "[J]ust to reiterate, we're dealing with from September of '09 until March of 2010 when he was terminated. . . . [¶] What happened . . . before the day when he admitted his violation of probation, that was resolved on September 22nd, 2009, when he was re-referred to the classes. That's what we're dealing with today, everything that happened after September 22nd, 2009. [¶] What we learned happened after that is he did reenroll in the classes, he did attend, I believe, a substantial number of the classes." Defense counsel continued to argue for reinstatement of probation rather than a prison sentence and did not request a probation report.
Following further argument, the trial court imposed the middle term of three years, suspended the execution of the sentence, and reinstated defendant on supervised probation for a period of five years with additional substance abuse terms and conditions. The court also ordered defendant to serve 180 days in county jail.
II
DISCUSSION
Section 1203.2, subdivision (b) provides that a petition to revoke probation "shall [be] refer[red] . . . to the probation officer. After the receipt of a written report from the probation officer, the court shall read and consider the report and . . . the petition and may modify, revoke, or terminate the probation . . . ."
"When a defendant is eligible for probation, the preparation and consideration of the report "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 . . . ." (§ 1203, subd. (b)(4).)
Defendant contends that because he was eligible for probation and made no written or oral waiver of the preparation and consideration of a probation report, the trial court was required to obtain a report prior to sentencing, and its failure to do so necessitates a remand for resentencing. He further maintains that even if he had not been prejudiced by the court's failure to obtain a probation report, the error denied him of his due process rights and was prejudicial per se.
The People assert that defendant has waived his claim on appeal by failing to affirmatively request a probation report and invited the error by requesting the court to proceed to sentencing without a probation report. The People further argue that any error was harmless.
The general rule on appeal is that a failure to timely object to a sentencing error below waives the claim on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351.) Indeed, the courts in People v. Begnaud (1991) 235 Cal.App.3d 1548, 1554-1556 [Fourth Dist., Div. Two] and People v. Oseguera (1993) 20 Cal.App.4th 290, 293-294 held that the failure to object to resentencing without a supplemental probation report constituted a waiver of a claim of error on appeal. However, we recognize that both of those cases failed to consider the later enactment, by the Legislature, of subdivision (b)(4) of section 1203 in 1996. Nonetheless, the subdivision has no bearing on the question of appellate forfeiture. It governs only the proceedings in the trial court and is intended to clarify that probation reports may be waived, but only with the prosecution's express consent.Defendant was still bound to call the court's attention to the absence of a probation report in order to give the court an opportunity to rectify the problem. Having failed to do so, the claim of error was waived for purposes of appeal.
The parties here agree that there was no formal stipulation, either written or oral, waiving the preparation of a probation report. In addition, no stipulation was entered into the court minutes.
Moreover, as the People point out, defendant invited the error by affirmatively noting a probation report was not needed and requesting the court to sentence him without a probation report. A party forfeits his or her right to attack error by implicitly agreeing or acquiescing at trial to the procedure objected to on appeal. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686; see also People v. Harrison (2005) 35 Cal.4th 208, 237 [defense invited error in admitting hearsay evidence].) A party who requests the court to act as it did has invited the error. (See People v. Williams (2008) 43 Cal.4th 584, 629.) Admittedly, "the invited error doctrine requires affirmative conduct demonstrating a deliberate tactical choice on the part of the challenging party. [Citations.]" (Huffman v. Interstate Brands Corp. ( 2004) 121 Cal.App.4th 679, 706.) All this means, however, is that the record must show that counsel knew that he or she had a choice. (People v. Cooper (1991) 53 Cal.3d 771, 831.) "If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice." (Ibid.)Invited error cannot be avoided by claiming "that the tactical choice was uninformed or otherwise incompetent . . . ." (Ibid.) Here, the prosecutor requested the matter be referred to the probation department for a probation report, and the court was inclined to do so. Defendant's counsel nevertheless insisted on proceeding with sentencing without a probation report, even after the court asked defense counsel why defense counsel believed one was not necessary.
Furthermore, contrary to defendant's assertion, the record indicates that defendant obtained a tactical advantage. The record shows that the court was contemplating a prison sentence; however, the court reinstated defendant on probation with additional terms. The court stated, "I can tell you right now, I'm not following the probation officer's recommendation. Giving him an extra 30 days, that's nothing." The court further retorted, "We've now had this individual here on another violation of probation for basically the same thing. He gives an excuse that I don't find credible at all. Why would I think that he's ever going to follow through with my order to attend the program and complete the classes? He'll come back with another excuse, and then I'm sitting here doing the same thing. [¶] I think he should go to prison.'"
Even assuming there was no waiver of the right to appeal or that defendant did not invite the error, defendant's claim does not prevail because any error in failing to obtain a probation report was harmless. The purpose of a presentence probation report is to inform the court of the circumstances surrounding the current crime and of the defendant's prior history and record, which will be used by the judge in determining whether probation is appropriate or, if not, the appropriate length of the sentence to be imposed. (§ 1203, subd. (b); Cal. Rules of Court, rule 4.411(d).) At the time of reinstating defendant on probation, the court had heard testimony from defendant's probation officer, the director of defendant's domestic violence program, and defendant. The court also had the probation officer's violation of probation memorandum. In addition, defendant's counsel argued the circumstances in mitigation and why defendant should be reinstated on probation. In other words, at the time of sentencing, the trial court had all of the information necessary to make an informed sentencing decision. A probation report summarizing defendant's background and criminal history would have added nothing substantive for the court's consideration. Indeed, in light of the fact that the court was considering a prison sentence, a probation report could have possibly jeopardized defendant's chance of receiving the more lenient sentence that he received, a fact recognized by his counsel. Under the circumstances of this case, we cannot find that defendant was prejudiced by the absence of a probation report.
Defendant argues that the failure to obtain a probation report requires a remand for resentencing without consideration of whether the error was harmless. He also argues that People v. Dobbins (2005) 127 Cal.App.4th 176, 182-183, which found harmless error under the Watson standard for the trial court's error in failing to order a supplemental probation report following a violation of probation, distinguishable because in this case there was never a probation report prepared. We have found no case that applies a reversible per se standard of error to the court's failure to obtain a probation report. Defendant relies on People v. Rojas (1962) 57 Cal.2d 676 and People v. Mercant (1989) 216 Cal.App.3d 1192. Rojas did not discuss harmless error; it remanded for preparation of a probation report because the defendant had been out of custody on bail during the pendency of the appeal which led to his resentencing and his conduct during that period would "bear directly on the question of [his] 'reformation and rehabilitation' while under restraint of judicial punishment." (Rojas, at p. 683.) In Mercant, sentencing was delayed for three years due to the defendant's failure to appear. The appellate court refused to find harmless error in the absence of a current probation report because the trial court was not bound to impose a particular sentence and the appellate court could not know "'what a current report, made by a professional probation officer, might have disclosed, nor in what light such a report would have presented appellant as of the time of the hearing.'" (Mercant, at p. 1196.)
People v. Watson (1956) 46 Cal.2d 818.
Defendant had validly waived that right when he was originally sentenced in July 2008.
In the present case, while the court did not refer the matter for preparation of a probation report, it did have before it the probation officer's violation of probation memorandum. This evidence informed the court generally of defendant's original offense, a discussion of the alleged probation violations and the probation department's efforts to work with defendant, an evaluation of defendant's performance on probation, and a recommendation for reinstatement of probation with an additional 30 days in county jail with additional substance abuse terms. In addition, at the probation revocation hearing and prior to reinstating defendant on probation, the court heard testimony from defendant's probation officer, the director of the domestic violence program, and defendant. The court also heard argument from defense counsel, explaining defendant's performance on probation and mitigating factors of why defendant should be reinstated on probation. Here, despite the absence of a formal probation report, the court was provided with sufficient information to make an informed decision. Additionally, the probation violation memorandum included the probation department's recommendation for reinstatement of probation with additional terms, including 30 days in county jail, so the court was aware of the probation department's position on sentencing. Defendant has suggested no information that might have been presented in a formal probation report that would have worked to his benefit. Indeed, given that the probation department recommended reinstatement of probation with only an additional 30 days in county jail, rather than 180 days as ordered by the court, it is difficult to imagine how a probation report could have been more favorable to him than the memorandum the court did have before it at sentencing.
Consequently, defendant has not shown that, but for the error in failing to obtain a formal probation report, his sentence would have been more favorable or that he has been denied due process.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur: HOLLENHORST
Acting P.J.
CODRINGTON
J.