Opinion
C082961
09-14-2017
THE PEOPLE, Plaintiff and Respondent, v. BRIAN DOUGLAS CASSIDY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF150242)
Defendant Brian Douglas Cassidy pled no contest to four offenses and admitted a sentence enhancement, and the trial court imposed a prison sentence of five years and eight months but suspended execution of the sentence and granted defendant probation. A year later, after finding defendant had violated the terms of his probation, the trial court revoked defendant's probation and ordered execution of the previously suspended sentence.
On appeal, defendant contends the trial court erred by failing to order a supplemental probation report prior to sentencing at the probation revocation hearing. We agree the trial court erred but conclude defendant has failed to show any prejudice from the error. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to the probation report, in December 2014, while driving under the influence of alcohol, defendant drifted into the opposite lane and collided head-on with a motorcycle, throwing the motorcyclist to the ground. When officers arrived, defendant had fled the scene, and the victim was being treated for a broken arm with a bone protruding from his forearm.
Ultimately, defendant was charged with driving under the influence of alcohol causing injury (with an infliction of great bodily injury enhancement), hit and run with injury, destroying or concealing evidence, and driving on a suspended license, based on an incident that occurred in December 2014. In July 2015, defendant pled no contest to all charges and admitted the enhancement based on an indication the court would consider probation. In a probation report filed with the court on July 21, 2015, the probation department asserted that defendant was statutorily ineligible for probation absent an unusual case finding because he inflicted great bodily injury during the perpetration of the crime. According to the report, an unusual case finding could be supported, and defendant appeared to be a marginal candidate for probation. In his statement to the probation officer, defendant said that he was "willing to follow terms and conditions of probation including participation in treatment if necessary." The report stated that although his behavior was of great concern, defendant "appear[ed] to be sincere in his willing[ness] to participate in treatment." The report further expressed the belief that defendant would respond favorably to treatment and "should be given an opportunity to prove himself in the community." The report recommended probation with a suspended prison sentence.
Under Penal Code section 1203, subdivision (e)(3), probation shall not be granted to a person who "willfully inflicted great bodily injury . . . in the perpetration of the crime" of conviction unless granting probation would best serve the interests of justice. --------
At the sentencing hearing on July 21, 2015, the trial court imposed a sentence of five years and eight months in prison but suspended execution of the sentence and placed defendant on three years of formal probation. The relevant probation conditions required defendant to abstain from using or possessing alcohol, report to the probation department as directed, obey state and federal law, and participate in and complete any counseling or educational program recommended by the probation officer, specifically, alcohol education/treatment. Defendant was also ordered to the Yolo County Alcohol Education Program and to attend and complete a minimum of 18 months in that program.
On January 25, 2016, Yolo County Sheriff's Deputy Gary Richter conducted a probation search at defendant's residence. Deputy Richter found two containers of methamphetamine and a methamphetamine pipe in defendant's bedroom. Defendant admitted using methamphetamine earlier that day.
On April 21, 2016, Davis Police Detective Justin Raymond conducted a probation search at defendant's residence. Defendant told Detective Raymond he had heroin in his pocket, and an officer accompanying the detective retrieved two small eyedroppers from defendant's pants pocket. The substance in the eyedroppers tested presumptively positive for heroin.
On April 25, 2016, the trial court revoked defendant's probation, released him on his own recognizance, and set a hearing for May 23. On May 5, 2016, the district attorney filed a declaration alleging defendant had violated his probation by possessing drug paraphernalia and a controlled substance. On May 23, defendant failed to appear, and the trial court issued bench warrants for his arrest.
On June 7, 2016, Davis Police Officer Mariano Lopez conducted a probation search at defendant's residence. Officer Lopez found a marijuana pipe, four methamphetamine pipes, and five hypodermic needles in the living room and in defendant's bathroom. Defendant said the hypodermic needles were used to inject anabolic steroids. Officer Lopez also found an empty vodka bottle, a partially consumed 40-ounce container of malt liquor, and several open containers of various types of alcohol.
On June 9, 2016, defendant was released subject to Secure Continuous Remote Alcohol Monitoring (SCRAM), and a hearing was set for June 23. On June 15, an addendum to the declaration requesting revocation of defendant's probation was filed alleging an additional violation of possession of drug paraphernalia.
Following the imposition of the probation condition in July 2015 forbidding him from using or possessing alcohol, defendant had nevertheless purchased alcohol at least once a week at a market near his home. A receipt indicated defendant purchased alcohol on June 21, 2016.
Defendant appeared in court on June 23, and the court ordered him to report to probation that day to take readings from his SCRAM device. A further hearing was set for July 6.
Defendant failed to report to the probation department as ordered. Defendant's probation officer reached defendant by telephone on June 24, and defendant told the officer he was in the Bay Area saying goodbye to the relatives he was visiting there because "he knew he was going to get locked up when he came and saw [the officer], because he had gotten drunk." Because defendant told his probation officer he was going to be back in town on June 26, the officer ordered him to report to probation on the June 27, but defendant failed to do so.
A receipt revealed that defendant purchased alcohol again on July 2, 2016. On July 3, defendant was arrested at his home in Davis. On July 6, 2016, the prosecutor filed a declaration alleging defendant had violated his probation by failing to abstain from the use or possession of alcohol. That declaration was later amended to include an allegation that defendant had failed to report to probation as ordered.
Ultimately, defendant's violation of probation hearing took place on August 30, 2016, in front of the same judge who presided over defendant's initial sentencing. During the hearing, witnesses testified for the prosecution to the facts described above. Defendant testified on his own behalf. He denied that the methamphetamine pipe found in his bedroom was his because he did not smoke methamphetamine, and while he denied shooting methamphetamine in more than a year, he admitted having snorted methamphetamine "[o]ff and on" since he was placed on probation. He also admitted possessing the two eyedroppers and a contact lens container of tar heroin, buying alcohol, drinking alcohol and getting drunk once while on probation, and not reporting to probation as ordered.
Following argument by counsel, the court found that defendant had violated his probation by possessing heroin, purchasing alcohol, and failing to report to probation as ordered. When the court said that it did not intend to reinstate defendant on probation, defendant read a letter to the court apologizing for his poor choices. He asserted that he had every intention of seeking a residential program if released and was willing to try anything, and he did not think being in prison would do him any good. Defense counsel argued defendant needed "a more controlled environment." The prosecutor disagreed, asserting defendant had several opportunities to succeed on probation, yet chose not to.
The trial court noted that any one of defendant's probation violations was arguably relatively minor and defendant "may have been pressured by others to permit things to go on in his home"; however, even with the threat of prison, defendant continued to "ma[k]e choices that put himself at risk" and did things that "direct[ly] violat[ed] . . . his probation a number of times." According to the court, even when provided the opportunity to perform on probation, defendant's actions set him up to be a continued danger to society, and the court concluded he was not capable of following the conditions of probation. The court ordered the execution of the previously suspended sentence of five years and eight months in prison. In support of this, the court stated, "I cannot justify in good faith any conclusion that would allow me to believe that [defendant] would follow the conditions of probation when he has violated numerous times in the first year of his probation."
This timely appeal followed.
DISCUSSION
On appeal, defendant contends the trial court erred when it failed to order a supplemental probation report or obtain a waiver of the report before sentencing him at the probation revocation hearing in August 2016. The People concede the error.
Under rule 4.411(c) of the California Rules of Court, a trial court generally "must order a supplemental probation report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared." The Advisory Committee Comment to the rule suggests a period of more than six months may constitute a significant period of time, even if the defendant remains incarcerated. (Advisory Com. com., West's Cal. Rules of Court, foll. rule 4.411(c).) This six-month period is based on case law establishing that courts must give defendants the benefit of " 'more recent, possibly mitigating' circumstances." (People v. Mariano (1983) 144 Cal.App.3d 814, 819 (Mariano).) The preparation or consideration by the court of a probation report "may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except that a waiver shall not be allowed unless the court consents thereto." (Pen. Code, § 1203, subd. (b)(4).)
The original probation report here was prepared approximately 13 months before the probation revocation hearing on August 30, 2016. This period is more than twice the six months referred to by the Advisory Committee. The record does not indicate that the trial court obtained a written or oral waiver from defendant regarding the preparation of a supplemental probation report. Accordingly, the trial court erred in imposing defendant's sentence without obtaining a supplemental probation report.
Citing People v. Dobbins (2005) 127 Cal.App.4th 176, defendant acknowledges that "[t]he failure of a sentencing court to order a supplemental probation report is typically analyzed under the harmless error standard contained in People v. Watson (1956) 46 Cal.2d. 818." Nonetheless, defendant also argues that "[b]ecause some California courts have considered the failure to consider a current probation report a fundamental right and a denial of due process, the prejudicial effect of the court's failure to order a probation report can be measured by the federal standard of 'harmless beyond a reasonable doubt' test found in [Chapman v. California] (1967) 386 U.S. 1[8], 16."
In Dobbins, this court "perceive[d] no federal constitutional right to a supplemental probation report" and instead concluded that "[b]ecause the alleged error implicates only California statutory law, review is governed by the Watson harmless error standard." (People v. Dobbins, supra, 127 Cal.App.4th at p. 182.) To the extent defendant relies on Mariano to support his suggestion that the failure to consider a current probation report, by itself, is a denial of due process, his reliance is misplaced. In Mariano, the court stated that the right to a current probation report is "considered fundamental" (Mariano, supra, 144 Cal.App.3d at p. 824), but the court did not say that the failure to consider a current report is a denial of due process, nor can the language of Mariano be interpreted to support that conclusion. Similarly, none of the cases cited by Mariano -- People v. Rojas (1962) 57 Cal.2d 676, People v. Keller (1966) 245 Cal.App.2d 711, and People v. Causey (1964) 230 Cal.App.2d 576 -- called the failure to consider an updated probation report a violation of due process either. (See Rojas, at p. 682; Keller, at p. 718; Causey, at p. 580.)
Citing People v. Tatlis (1991) 230 Cal.App.3d 1266, defendant contends "[s]entencing based on incomplete or inaccurate information may be considered a violation of . . . due process." In Tatlis, the trial court denied the defendant's request for a supplemental probation report on the ground that he was not eligible for probation, even though the applicable rule provided that the court "should" order such a report. (Tatlis, at p. 1273.) The appellate court held that "fundamental fairness requires that sentencing decisions be based upon the court's informed discretion." (Id. at p. 1274.) The court further concluded that the sentencing judge's statement that "she did not intend to change her mind and sentence differently than she had originally" suggested she was "not open to the possibility there might now be mitigating factors to be weighed" and thus failed to exercise informed discretion. (Ibid.) When denying a supplemental probation report, "the court must have some substantial basis for the denial . . . far more than a subjective desire to avoid information." (Id. at p. 1273.) "Anything less deprives a defendant of his or her due process right to have the court exercise informed sentencing discretion." (Id. at pp. 1273-1274.) Sentencing courts have "discretion to deviate from the preferred practice" of ordering a probation report when they have "sound reason for doing so." (Id. at p. 1273.)
While a sentencing decision based on an informed exercise of discretion may be a fundamental right for purposes of the due process right to fundamental fairness, we do not interpret the language of Tatlis to conclude that the fundamental right to an informed sentencing decision always requires a supplemental probation report. Thus, Tatlis does not support the application of the federal standard of prejudice under Chapman in this case. As a result, following Dobbins, we conclude the failure to order a supplemental probation report here was an error of state law only and thus is governed by the Watson standard of harmless error.
Under the harmless error standard articulated in Watson, "we shall not reverse unless there is a reasonable probability of a result more favorable to [the] defendant if not for the error." (People v. Dobbins, supra, 127 Cal.App.4th at p. 182, citing People v. Watson, supra, 46 Cal.2d at p. 836.) Defendant argues that even under Watson, the error was prejudicial. Relying on People v. Mercant (1989) 216 Cal.App.3d 1192, defendant contends that he was prejudiced because " 'we cannot know "what a current report, made by a professional probation officer, might have disclosed, nor in what light such a report would have presented appellant as of the time of the hearing." ' " Under Watson, however, it is not enough for defendant to assert that his circumstances might have changed since his original probation report was prepared. Instead, he has the burden of demonstrating a reasonable probability that he would have obtained a more favorable result if a supplemental probation report had been obtained. (See People v. Watson, supra, 46 Cal.2d at p. 836.) Defendant has not met that burden because he has failed to show that any additional information that might have been included in a supplemental probation report likely would have led to either the reinstatement of his probation or some other more favorable disposition.
Defendant argues that "[b]ecause a supplemental report was not prepared, there was no analysis provided by probation as to whether [he] might benefit from a residential treatment program." But this argument is not a basis for finding prejudice under Watson. Under the Watson standard, defendant bears the burden of establishing a reasonable probability that the error affected the results. (E.g., People v. Hernandez (2011) 51 Cal.4th 733, 745-746.) Thus, it falls to defendant to persuade us that had the court considered a supplemental probation report analyzing whether defendant might benefit from a residential treatment plan, there is a reasonable probability the court would have reinstated him on probation. Defendant cannot carry, and has not carried, that burden simply by reiterating the fact that there was no supplemental probation report here containing such an analysis.
To the extent defendant relies on People v. Conners (2008) 168 Cal.App.4th 443 to support his claim of prejudice, we find Conners unhelpful because the court in Conners made no effort to determine the appropriate standard of prejudice, let alone to expressly apply that standard. Instead, the court in Conners merely noted that because "no supplemental probation report was ever submitted, and the report that existed had no information in it," " 'the possibilities for prejudice are clear and the actual prejudice suffered is a matter of conjecture.' " (Id. at p. 457, quoting People v. Leffel (1987) 196 Cal.App.3d 1310, 1318.) But that is not the test for prejudice under Watson, and neither Conners nor Leffel offers any authority for reversing a sentence based on state law error where actual prejudice is a matter of conjecture and all that has been shown is the mere possibility for prejudice.
From the record here, we cannot conclude there is a reasonable probability that the outcome would have differed had the trial court ordered and reviewed a supplemental report. Accordingly, the trial court's error was harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Duarte, J. /s/_________
Hoch, J.