People v. Llamas

• Decision Date: 05 October 1998
• Docket Number: Nos. D029078,D030807,s. D029078
• Citation: 67 Cal.App.4th 35,78 Cal.Rptr.2d 759
• Parties: , 98 Cal. Daily Op. Serv. 7647, 98 Daily Journal D.A.R. 10,575 The PEOPLE, Plaintiff and Respondent, v. Frankie LLAMAS, Defendant and Appellant. In re Frankie LLAMAS, on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

Page 759

78 Cal.Rptr.2d 759

67 Cal.App.4th 35, 98 Cal. Daily Op. Serv. 7647,

98 Daily Journal D.A.R. 10,575

The PEOPLE, Plaintiff and Respondent, v. Frankie LLAMAS, Defendant and Appellant In re Frankie LLAMAS, on Habeas Corpus.

Nos. D029078, D030807.

Court of Appeal, Fourth District, Division 1, California.

Oct. 5, 1998.

Rehearing Denied Oct. 22, 1998.

Review Denied Jan. 27, 1999.

[67 Cal.App.4th 37] Cindi B. Mishkin, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Carl H. Horst and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, Acting Presiding Justice.

Following his partially successful appeal, ¹ second striker (PEN.CODE, § 667², subds. (b)-(i)) Frankie Llamas was sentenced on remand to seven years in prison: double the three-year middle term for possessing a controlled substance while armed with a firearm (Health & Saf.Code, § 11370.1, subd. (a)), one year for a prior prison term (§ 667.5, subd. (a)), and stayed sentences for being a felon in possession of a firearm (§ 12021, subd. (a)) and possessing a controlled substance (Health & Saf.Code, § 11377, subd. (a)). In this appeal and petition for writ of habeas corpus, Llamas contends the court erred in resentencing him without obtaining a supplemental probation report. In his petition, he also contends counsel was ineffective for failing to request such a report. We disagree.

BACKGROUND

The underlying offenses occurred in February 1995 and the trial and original sentencing took place in July and August, respectively. The probation officer prepared a report for the August sentencing. Defense counsel did not request a supplemental probation report for the May 15, 1997, resentencing, believing Llamas was entitled to nothing more than a custody update. Attached to the statement in mitigation, however, were a statement written by Llamas The judge who resentenced Llamas presided at the original sentencing hearing but not at trial. ³ At resentencing, the court denied Llamas's motion requesting it exercise its discretion to dismiss his strike. Defense counsel submitted unspecified documents to the court, pointed out the numerous people present in support of Llamas, and stated Llamas had obtained his G.E.D. and taken six hours of college classes in prison and had employment awaiting his release. Llamas addressed the court, noting that in December 1995 while in custody he had begun studying to be a computer technician and was progressing well.

citing his GED (general equivalency diploma) and 12.9 grade point average as well as 17 letters of support from family members and friends, including two offers of employment. The statement in mitigation also referred to "the attached reports of excellent progress in [Llamas's] computer studies [in prison]," although no such documents are in the record. The statement in mitigation additionally observed "[w]hen in custody, [Llamas had] made consistent efforts to improve himself."

DISCUSSION

Llamas contends the court erred in resentencing him without obtaining a supplemental probation report and counsel was ineffective because he failed to request such a report.

Waiver

Preliminarily, respondent argues Llamas has waived his right to object to the absence of a supplemental probation report by failing to do so below.

"[T]he right to challenge a criminal sentence on appeal is not unrestricted. In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. [Citations.] These principles are invoked as a matter of policy to ensure the fair and orderly administration of justice. [Citation.]" (People v. Scott (1994) 9 Cal.4th 331, 351, 36 Cal.Rptr.2d 627, 885 P.2d 1040 [failure to challenge statement of sentencing reasons constitutes a waiver], original italics.)

Thus, presentation of the probation report in oral rather than written form (People v. Girard (1971) 15 Cal.App.3d 1005, 1008, 93 Cal.Rptr. 676) and its untimely preparation (People v. Evans (1983) 141 Cal.App.3d 1019, 1021, 190 Cal.Rptr. 633) are matters waived by failure to object. (People v. Scott, supra, 9 Cal.4th at p. 352, fn. 15, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) Furthermore, "[i]t is settled that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal." (People v. Welch (1993) 5 Cal.4th 228, 234, 19 Cal.Rptr.2d 520, 851 P.2d 802 [failure to object to probation conditions operates as a waiver].) Here, a timely objection to the absence of a supplemental report would have permitted the court to consider the issue and order a report or explain why none was necessary. (Cf. id. at p. 235, 19 Cal.Rptr.2d 520, 851 P.2d 802.) Either course might have prevented this appeal and petition. (Ibid.)

Llamas maintains section 1203, subdivision (b)(4) provides the preparation of a probation report may be waived only by written stipulation filed with the court or oral stipulation entered in the minutes. This stipulation requirement, however, is predicated upon section 1203, subdivision (b)(1), which refers to "a person ... eligible for probation." As discussed below, Llamas was ineligible for probation. Thus, section 1203, subdivision (b)(4) is inapplicable. We conclude Llamas has waived his right to object to the absence of a supplemental report by failing to do so in the trial court. In any event, as we discuss below, he cannot prevail on the merits.

Supplemental Probation Report

Llamas was statutorily ineligible for probation due to his strike. (§ 667, subd. (c)(2).) A probation report was therefore discretionary. (People v. Bullock (1994) 26 Llamas has failed to show the court abused its discretion in failing to order a supplemental probation report (People v. Bullock, supra, 26 Cal.App.4th at p. 990, 31 Cal.Rptr.2d 850) or that any prejudice resulted (People v. Begnaud (1991) 235 Cal.App.3d 1548, 1556, fn. 7, 1 Cal.Rptr.2d 507). ⁶ He claims a supplemental report would have "clearly delineat[ed]" his achievements in prison, shown his lack of disciplinary problems, and set forth "the results of a possible interview with ... one of [his] teachers." ⁷

                Cal.App.4th 985, 989, 31 Cal.Rptr.2d 850;  People v. Tatlis (1991) 230 Cal.App.3d 1266, 1272-1273, 282 Cal.Rptr. 55;  § 1203, subd.  (g);  Cal.  Rules of COURT,  RULE 411(A) & (B)4. 5  )  Rule 411(c) does not compel a different result, as Llamas urges.  Its only reasonable interpretation, reading it in light of rule 411(a) and (b), is that a supplemental [67 Cal.App.4th 40] report is required only if the defendant is eligible for probation.  Similarly, section 1203, subdivision (g) expressly 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."   Section 1203c, which Llamas claims mandates a report, in fact refers to a post-sentencing report by the probation officer to the Department of Corrections
                

Attached to Llamas's petition are four documents: three prison vocational training report cards (all attesting to his outstanding performance) and a certificate of completion. These documents may comprise the unidentified documents counsel submitted to the court at resentencing and the reports concerning Llamas's prison studies cited in the statement in mitigation. Furthermore, both Llamas and his attorney told the court of his prison studies. The original probation report, to which the resentencing court referred, recited Llamas's lengthy and violent criminal record and noted he had earned his G.E.D. in prison and completed nine units of college classes. Thus, the information Llamas asserts was missing due to the lack of a supplemental report was available to the resentencing court in other forms.

A probation report is advisory only. (People v. Warner (1978) 20 Cal.3d 678, 683 Because Llamas has not demonstrated he was prejudiced by the absence of a supplemental report, he has failed to substantiate his claim of ineffective assistance of counsel by showing "a reasonable...