Opinion
No. D041301.
11-3-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALLEN SCOTT, Defendant and Appellant.
David Allen Scott entered a negotiated guilty plea (People v. West (1970) 3 Cal.3d 595) to possessing a controlled substance for sale. (Health & Saf. Code, § 11351.) The court sentenced him to prison for the four-year upper term, suspended execution of sentence and placed him on three years probation subject to conditions, including a condition that he not use any unprescribed drugs. The court revoked probation after the People presented evidence that Scott tested positive four times for using unprescribed drugs. The trial court stated it had no discretion other than to execute the previously imposed four-year prison term. Scott contends the trial court erred by not exercising its discretion to reinstate probation rather than execute the four-year term and by not obtaining a supplemental probation report.
DISCUSSION
The People concede the trial court erred by concluding it did not have discretion to reinstate probation rather than executing the previously imposed prison term. (See People v. Medina (2001) 89 Cal.App.4th 318, 321, 323.)
California Rules of Court, rule 4.411(c) provides that the court shall obtain a supplemental probation report when sentencing occurs a significant time after the original probation report was prepared. We direct the trial court to exercise its discretion and determine whether to reinstate probation or execute the previously imposed sentence and whether to obtain a supplemental probation report in connection with its sentencing decision.
DISPOSITION
The finding that Scott violated probation is affirmed. The execution of sentence is vacated and the matter is remanded for determination whether to reinstate probation and whether to obtain a supplemental probation report.
WE CONCUR NARES, Acting P. J. and HALLER, J.