People v. Dobbins

• Decision Date: 28 February 2005
• Docket Number: No. C046381.,C046381.
• Citation: 127 Cal.App.4th 176,24 Cal.Rptr.3d 882
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clarence Ray DOBBINS, Defendant and Appellant.

24 Cal.Rptr.3d 882

127 Cal.App.4th 176

The PEOPLE, Plaintiff and Respondent, v. Clarence Ray DOBBINS, Defendant and Appellant.

No. C046381.

Court of Appeal, Third District.

February 28, 2005.

Peggy A. Headley, San Jose, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Mary Jo Graves, Assistant Attorneys General, Janis Shank McLean and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.

SIMS, Acting P.J.

On July 3, 2003, defendant Clarence Ray Dobbins pled no contest to possession of a controlled substance. (Health & Saf.Code, § 11350, subd. (a).) Pursuant to a negotiated plea agreement, the trial court sentenced him to the 16-month lower term but suspended execution of the sentence and granted probation pursuant to Proposition 36. (See Pen.Code, § 1210.1; undesignated section references are to the Penal Code.) Defendant violated probation by committing new offenses. At a hearing on March 15, 2004, the trial court ordered him to serve the 16-month prison sentence.

On appeal, defendant claims the trial court erred by failing to order and consider an updated or supplemental probation report before declining any further grant of probation. We conclude that the court erred but find the error to be harmless considering the peculiar facts of this case. Accordingly, we shall affirm the judgment.

BACKGROUND

The initial probation report was signed by the probation officer and dated July 17, 2003, shortly before the first sentencing hearing. It reflects that defendant's adult record includes at least six felonies and four misdemeanors. He had been sentenced to state prison on five occasions and had also violated parole multiple times, resulting in recommitments to prison.

On September 25, a little more than two months after the probation report was prepared, defendant was arrested and charged with new offenses. A proposition 36 progress report by defendant's probation officer, dated October 10, 2003, indicated defendant had also not kept in contact with the probation department since August 15 and had failed to drug test, and that he had tested positive for cocaine on August 4. But the prosecutor subsequently filed a motion asking the trial court to find defendant in violation of probation based solely on his commission of the new offenses.

Defendant remained in custody pending trial on the new charges. The jury trial involved two felony charges: assault with a deadly weapon (§ 245, subd. (a)(1)) and attempted robbery (§§ 211, 664) with a deadly or dangerous weapon. The violation of probation was heard concurrently (by the trial judge) with the trial on the new charges.

According to the victim's testimony, defendant approached her while she was sitting on her car and smoking. She was suspicious because he was mumbling and acting strangely. The victim reached into her purse, took out her pepper spray, and concealed it in her hand. Defendant asked for a cigarette. The victim refused in a loud voice and told defendant her husband did not support other people's smoking habits. Defendant pulled out a steak knife and pointed it toward her. He demanded "a fucking cigarette." The victim held up her pepper spray and again refused. Defendant swore at the victim and walked away. He approached another woman, who the victim heard yell: "[Y]ou scared the hell out of me, and I don't even smoke. Get out of here." The victim could see the knife in defendant's back pocket after he walked away. Police subsequently arrested him and found the knife in his pocket.

The jury deadlocked, and a mistrial was declared. However, at a hearing on March 15, 2004, the trial court concluded defendant committed the new offenses based on a preponderance of the evidence and found him in violation of probation. The court noted it had reviewed and considered the probation report. The court emphasized defendant's commission of the new offenses as well as the fact he had "been to state prison six times" (or had "six state prison priors") and had failed a drug test while on probation.¹ With respect to defendant's new criminal conduct, the court said it did not think it "was the most serious offense on the face of the earth." The court commented that it had thought "there should have been some resolution short of what [the prosecution] offered," considering the crime involved a cigarette. But the court also noted a weapon was involved. The court then denied probation and imposed the previously suspended 16-month sentence.

The prosecutor dismissed the new criminal charges against defendant.

DISCUSSION

Defendant claims the trial court erred by failing to order and consider an updated or supplemental probation report.

Preliminarily, we note that case law has recognized that a probation report is not necessarily required if defendant is statutorily ineligible for probation, for example, because of a prior strike. (See, e.g., People v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1432, 83 Cal.Rptr.2d 423; People v. Llamas (1998) 67 Cal.App.4th 35, 39-40, 78 Cal.Rptr.2d 759.) This is consistent with section 1203, subdivision (b)(1), which provides in pertinent part that the trial court shall order a probation report "before judgment is pronounced" for persons "convicted of a felony" who are "eligible for probation." But here, the court had discretion to allow a further grant of probation subject to the same or modified conditions. (See § 1210.1, subd. (e)(2).) Accordingly, we must address defendant's argument that the trial court erred by proceeding without a current report or obtaining an express waiver.

Statutory authority and the California Rules of Court specify the circumstances under which the trial court must prepare a supplemental or updated report. Section 1203.2, subdivision (b), requires referral to the probation officer, preparation of a written report, and its consideration by the court upon a petition for revocation of probation.² But a supplemental or updated report is not necessarily needed in some cases where a recent report has been prepared that may be incorporated by reference. Notably, California Rules of Court, rule 4.411(c) provides: "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." Relying on the rule, defendant argues that an updated or supplemental report was needed here because a significant time had passed since the original report was prepared.

Was the eight-month period of time between the original probation report and defendant's resentencing a "significant period of time" within the meaning of rule 4.411(c)?

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. The Advisory Committee Comment provides in pertinent part: "Subdivision (c) is based on case law that generally requires a supplemental report if the defendant is to be resentenced a significant time after the original sentencing, as, for example, after a remand by an appellate court, or after the apprehension of a defendant who failed to appear at sentencing. The rule is not intended to expand on the requirements of those cases. [¶] The rule does not require a new investigation and report if a recent report is available and can be incorporated by reference and there is no indication of changed circumstances. This is particularly true if a report is needed only for the Department of Corrections because the defendant has waived a report and agreed to a prison sentence. If a full report was prepared in another case in the same or another jurisdiction within the preceding six months, during which time the defendant was in custody, and that report is available to the Department of Corrections, it is unlikely that a new investigation is needed." Advisory Com. com., West's Cal. Rules of Court (2005 ed.) foll. rule 4.411, p. 271, italics added.)

Here, the original probation report was prepared approximately eight months before the sentencing hearing at issue. This period was well in excess of the six months referred to by the Advisory Committee, and it included approximately two months when defendant was not under the watchful eyes of custodial authorities but was rather released on probation, when he committed the conduct for which his probation was revoked. Accordingly, we hold the trial court erred by proceeding without ordering a supplemental or updated report.³

Citing People v. Johnson, supra, 70 Cal.App.4th 1429, 1431-1432, 83 Cal.Rptr.2d 423, People v. Myers (1999) 69 Cal.App.4th 305, 311, 81 Cal.Rptr.2d 564, People v. Llamas, supra, 67 Cal.App.4th 35, 39, 78 Cal.Rptr.2d 759, People v. Oseguera (1993) 20 Cal.App.4th 290, 293, 24 Cal.Rptr.2d 534, and People v. Begnaud (1991) 235 Cal.App.3d 1548, 1554-1556, 1 Cal.Rptr.2d 507, the People argue defendant has forfeited his right to complain about the lack of a supplemental probation report because he did not request such a report at trial.

However, Johnson, supra, 70 Cal.App.4th 1429, 83 Cal.Rptr.2d 423, Myers, supra, 69 Cal.App.4th 305, 81 Cal.Rptr.2d 564, and Llamas, supra, 67 Cal.App.4th 35, 78 Cal.Rptr.2d 759, are cases in which the defendant was statutorily ineligible for probation, so no report was mandated. (See People v. Webb (1986) 186 Cal.App.3d 401, 230 Cal.Rptr. 755.) Oseguera, supra, 20 Cal.App.4th 290, 24 Cal.Rptr.2d 534, and Begnaud, supra, 235 Cal.App.3d 1548, 1 Cal.Rptr.2d 507, fail to consider the later enactment, by the Legislature, of subdivision (b)(4) of section 1203 in 1996. (Stats.1996, ch. 123, § 1.) That subdivision provides as follows: "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...