People v. Johnson

• Decision Date: 30 March 1999
• Docket Number: No. E022747,E022747
• Citation: 83 Cal.Rptr.2d 423,70 Cal.App.4th 1429
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 2346, 1999 Daily Journal D.A.R. 3052 The PEOPLE, Plaintiff and Respondent, v. Mark E. JOHNSON, Defendant and Appellant.

Page 423

83 Cal.Rptr.2d 423

70 Cal.App.4th 1429, 99 Cal. Daily Op. Serv. 2346,

1999 Daily Journal D.A.R. 3052

The PEOPLE, Plaintiff and Respondent, v. Mark E. JOHNSON, Defendant and Appellant.

No. E022747.

Court of Appeal, Fourth District, Division 2, California.

March 30, 1999.

[70 Cal.App.4th 1430] Ivy K. Kessel, under appointment by the Court of Appeal, Encino, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett B. Beaumont and Robert M. Foster, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HOLLENHORST, Acting P.J.

In bifurcated proceedings, a jury found defendant was guilty of first degree burglary (Pen.Code, § 459) ¹ and the trial court found the enhancing allegations of a prior serious felony conviction, a "strike" conviction and a prior prison term were true. (§ 667, subds. (a), (b)-(i), § 667.5, subd. (b).) Defendant waived referral to probation and was sentenced to a 14-year term, consisting of the 4-year middle term doubled to 8 years, 5 years for the prior serious felony conviction and 1 year for the prior prison term.

Defendant appealed and in an unpublished opinion filed on March 27, 1997, in Case No. E018424 this court affirmed the judgment but remanded the matter to allow the sentencing court an opportunity to exercise its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.

On December 15, 1997, the sentencing court denied defendant's motion to dismiss the strike and reimposed the 14-year prison term. In this appeal, defendant contends the court erred in resentencing him without obtaining a supplemental probation report. The contention lacks merit.

DISCUSSION

Defendant argues California Rules of Court, rule 411(c), requires a trial court to order a new probation report before resentencing a defendant. ² The People respond that defendant waived any right to a supplemental probation report by not asking for one. We affirm.

In People v. Begnaud (1991) 235 Cal.App.3d 1548, 1 Cal.Rptr.2d 507, this court held that where a defendant fails to request a supplemental probation report, voices no objection to proceeding with resentencing without a supplemental probation report, and states there is no legal cause why judgment cannot be imposed, the issue of requiring a supplemental probation report is waived. (Id., at pp. 1555-1556, 1 Cal.Rptr.2d 507.)

Defendant argues that People v. Begnaud, supra, 235 Cal.App.3d 1548, 1 Cal.Rptr.2d 507, is no longer applicable because section 1203, subdivision (b)(4), ³ enacted after Begnaud was filed, provides that supplemental probation reports cannot be waived unless stipulated to by both parties and the stipulation is either filed or orally stated in open court. This stipulation requirement, however, is predicated on section 1203, subdivision (b)(1), which refers to "a person ... eligible for probation." As defendant was ineligible for probation due to his strike (§ 667, subd. (c)(2)), ⁴ a probation report was discretionary. Thus, section 1203, subdivision (b)(4), is inapplicable.

Rule 411(c) does not compel a different result. The only reasonable interpretation of rule 411(c), reading it in light of rule 411(a) and rule 411(b), is that a supplemental report is required only if the defendant is eligible for probation. (People v. Llamas (1998) 67 Cal.App.4th 35, 39, 78 Cal.Rptr.2d 759; People v. Bullock (1994) 26 Cal.App.4th 985, 989, 31 Cal.Rptr.2d 850; People v. Tatlis (1991) 230 Cal.App.3d 1266, 1273, 282 Cal.Rptr. 55.) Similarly, section 1203, subdivision (g), ⁵ states that as to a defendant ineligible for probation, "[t]he judge, in his or her discretion, may direct the probation officer to investigate all facts relevant to the sentencing of the person."

Defendant claims the failure to order an updated probation report deprived him of his due process right to a fair resentencing hearing. However, a probation report is advisory only (People v. Warner (1978) 20 Cal.3d 678, 683, 143 Cal.Rptr. 885, 574 P.2d 1237) and defendant does not indicate there is any additional information that he was not permitted to bring to the court's attention. Furthermore, the court imposed the doubled middle term--the sentencing norm established by the Legislature. (See People v. Langevin (1984) 155 Cal.App.3d 520, 524, 202 Cal.Rptr. 234.)

Defendant also argues a supplemental report was necessary to permit the court to determine whether to exercise its discretion to dismiss the strike under section 1385. But the record does not affirmatively demonstrate that the court misunderstood the law (see People v. Fuhrman (1997) 16 Cal.4th 930, 945, 67 Cal.Rptr.2d 1, 941 P.2d 1189) and a timely objection to the absence of a supplemental report would have permitted the court to explain why none was necessary. (See People v. Welch (1993) 5 Cal.4th 228, 235, 19 Cal.Rptr.2d 520, 851 P.2d 802.) There are cases where the defendant may not want a supplemental report. Indeed, following his conviction, defendant had requested immediate sentencing, thus waiving a probation report at his original sentencing hearing. He was in prison throughout the period from his original sentencing hearing until his sentencing hearing on remand. The judge, who presided over both of defendant's sentencing hearings, reasonably could have inferred that defendant knowingly waived a supplemental probation report because he knew it would not benefit him. (See People v. Begnaud, supra, 235 Cal.App.3d 1548, 1556, fn. 7, 1 Cal.Rptr.2d 507.) "A defendant should not be allowed to stand silent when the court proceeds without a supplemental probation report, gamble that a trial court will impose a lesser term of imprisonment and then urge reversal for the failure to obtain the report without being required to make some showing that he was prejudiced thereby." (Ibid.; see also People v. Scott (1994) 9 Cal.4th 331, 352, fn. 15, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)

In view of the foregoing, we conclude defendant has waived his right to object to the absence of a supplemental report by failing to do so in the trial court.

DISPOSITION

The judgment is affirmed.

McKINSTER J., and RICHLI, J., concur.

1 All statutory references are to the Penal Code unless otherwise indicated.

2 All rule references are to the California Rules of Court. Rule 411 states:

"(a) [Eligible defendant] If the defendant is eligible for probation, the court shall refer the matter to the probation officer for a presentence investigation and report. Waivers of the presentence report should not be accepted except in unusual circumstances.

"(b) [Ineligible defendant] Even if the defendant is not eligible for probation, the court should refer the matter to the probation officer for a presentence investigation and report.

"(c) [Supplemental reports] 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.

"(d) [Purpose of presentence investigation report] Probation officers' reports are used by judges in determining the appropriate length of a prison sentence and by the Department of Corrections in deciding upon the type of facility and program in which to place a defendant, and are also used in deciding whether probation is appropriate....