Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD203397, Robert F. O'Neill, Judge.
McDONALD, J.
In December 2006 Aaron Lamar Thompson entered a negotiated guilty plea to unlawfully driving or taking a vehicle (Veh. Code, § 10851) and receiving stolen property (Pen. Code, § 496, subd. (a)). In February 2007 the court suspended imposition of sentence and placed him on three years' probation. In December 2007 the court revoked probation. It stated Thompson "was previously placed on probation and the prison sentence was indicated if he violated the terms and conditions of probation." The court sentenced Thompson to prison for three years eight months: the three-year upper term for unlawfully driving or taking a vehicle and eight months (one-third the middle term) for receiving stolen property.
The judge who granted probation was not the judge who presided at the subsequent hearings.
Thompson appeals, contending the case must be remanded for a new sentencing hearing because the court did not exercise its discretion in making sentencing choices, state reasons for those choices, or order a supplemental probation report. The People concede remand is required because the court incorrectly thought the sentence had previously been imposed but execution stayed and did not exercise its discretion or state reasons for its sentence.
If the court suspends imposition of sentence and places a defendant on probation, and the court later revokes probation, it may "choose from all the initially available sentencing options." (People v. Howard (1997) 16 Cal.4th 1081, 1084). If it then imposes a prison sentence, it must state reasons for its sentencing choices. (Pen. Code, § 1170, subds. (b), (c); Cal. Rules of Court, rule 4.406.) Because the court did not exercise its discretion regarding sentencing choices or state reasons for those choices, we remand for resentencing.
The original probation report was prepared sometime before January 22, 2007. Because the hearing on remand will occur "a significant period of time after the original report was prepared" (Cal. Rules of Court, rule 4.411(c); Pen. Code, § 1203.2, subd. (b); People v. Dobbins (2005) 127 Cal.App.4th 176, 180-181), the court must order an updated probation report.
DISPOSITION
The judgment of conviction is affirmed. The sentence is reversed. The case is remanded with directions to order a supplemental probation report and hold a new sentencing hearing.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.