Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. Hurl W. Johnson III, Judge. Super. Ct. No. 1102008
Rudolph Kraft III, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Dawson, J. and Kane, J.
On January 31, 2006, the Stanislaus County District Attorney filed a first amended criminal complaint in superior court charging appellant as follows:
Count 1--transportation of a controlled substance (Health & Saf. Code, § 11379);
Count 2--possession of a controlled substance (Health & Saf. Code, § 11378);
Count 3--evading a peace officer (Veh. Code, § 2800.2);
Count 4--resisting arrest (Pen. Code, § 148, subd. (a)); and
Count 5--providing false identification to a peace officer (Pen. Code, § 148.9).
As to counts 1, 2, and 3, the district attorney specially alleged appellant had sustained a prior serious felony conviction (Pen. Code, § 667, subd. (d)), three prior prison terms (Pen. Code, § 667.5, subd. (b)), and a prior narcotics-related conviction (Health & Saf. Code, § 11370.2).
On the same date, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On June 9, 2006, appellant withdrew his not guilty pleas, entered pleas of nolo contendere to counts 2 and 3, and admitted the prior serious felony conviction and two prior prison term allegations. The court dismissed the remaining substantive counts and special allegations in the interest of justice.
On the same date, appellant waived the preparation of a probation report and agreed to immediate sentencing. The court imposed a total term of six years in state prison, suspended execution of that sentence, and admitted appellant to formal probation for three years subject to various terms and conditions, including the payment of specified fines and fees and service of 365 days in county jail. The court granted a stay of execution of its order until 9:00 a.m. on August 11, 2006.
On August 17, 2006, the court extended appellant’s surrender date to 9:00 a.m. on October 13, 2006, for medical reasons.
On October 13, 2006, the court extended appellant’s surrender date to 9:00 a.m. on December 28, 2006, noting in its minute order, “Last Continuance.”
On December 29, 2006, the Stanislaus County Sheriff’s Department issued a Failure to Surrender notice in appellant’s case. The notice bore a rubber stamped notation: “SUP. COURT FTA 1/9/07.”
On February 1, 2007, the court reinstated appellant’s probation and stayed execution of the county jail term to March 9, 2007.
On April 2, 2007, the Stanislaus County Probation Department filed a Violation of Probation Report alleging appellant had committed numerous probation violations by failing to obey all laws and orders of court; by failing to report to the probation officer as directed; and by failing to obtain written consent from the probation officer before leaving Stanislaus County for a period in excess of 48 hours.
On April 20, 2007, the court issued a bench warrant for appellant’s arrest based upon his failure to appear in court as previously ordered.
On September 7, 2007, the court conducted a contested violation of probation hearing, found appellant in violation of his probation, and denied probation. The court ordered appellant to serve the six-year state prison term previously suspended and ordered appellant to pay restitution and other fines and fees previously ordered by the court.
On August 5, 2008, appellant filed a request with this court for permission to file a written notice of appeal under the constructive filing doctrine. (No. F055780).
On August 8, 2008, this court issued an order deeming appellant’s request to be a petition for writ of habeas corpus and granting the Attorney General leave to file a response.
On August 28, 2008, this court filed an opinion noting no response from the Attorney General, directing appellant to cause a notice of appeal to be filed in the superior court within 30 days, and issuing a petition for writ directing the clerk of the superior court to treat such notice as timely filed.
On September 11, 2008, appellant filed a notice of appeal in superior court.
STATEMENT OF FACTS
The following facts are taken substantially verbatim from the probation officer’s violation of probation report filed September 29, 2008:
Facts Underlying the Initial Offenses
“According to reports of the California Highway Patrol, on December 1, 2005, officers conducted a traffic stop on a vehicle on Dallas Street in Modesto, CA. As the officers approached the vehicle, the driver asked, ‘What’s going on? What did you pull me over for?’ The driver then sped away. The officers pursued the suspect vehicle in residential areas as the suspect vehicle reached speeds of 85 miles per hour, drove on the wrong side of the road, and failed to stop at multiple posted stop signs. The officers noted the driver would intentionally brake heavily for a short distance leaving heavy skid marks on the road before accelerating again. The vehicle was driven recklessly through an alleyway and the driver of the suspect vehicle attempted to flee the car on foot, however the car was going too fast. In order to end the pursuit, the officer placed the patrol vehicle’s bumper against the rear bumper of the suspect vehicle, which forced the car into a fence. The driver exited the vehicle and a foot chase ensued. The defendant refused to comply with officers’ demands to get on the ground and the defendant was forced to comply by way of a straight baton with the help of two additional California Highway Patrol Officers. The driver, identified as Calvin Alexander Ewing, after giving a false name of Anthony George, was placed under arrest. During a subsequent search of the defendant’s person, 36 small blue pills with a dolphin insignia, along with a half split pill and a quarter of another pill, all confirmed as Ecstasy, were found in the defendant’s left front pants pocket. Additionally, $488 dollars in cash consisting of $100, $20, $5, and $1 denominations was found on the defendant’s person. The defendant did not have a valid driver’s license at the time of this arrest.”
Facts Underlying the Violation of Probation
“On June 9, 2006, the defendant was committed to prison for 6 years and was granted 36 months probation under a suspended execution of sentence. He was also ordered 365 days in jail with a surrender date of August 11, 2006.
“On August 1, 2006, the defendant met with the [p]robation [o]fficer and his terms and conditions of probation were reviewed. The defendant also signed reporting instructions directing the defendant to report to the [p]robation [o]fficer the first or second Tuesday of every month.
“On August 11, 2006, the defendant failed to surrender himself to the county jail. On August 17, 2006, the Stanislaus County Court extended the defendant’s surrender date to October 13, 2006.
“On September 20, 2006, the defendant reported to [the probation officer] and his reporting instructions were again reviewed. The defendant was directed to report to the [p]robation [o]fficer the first or second Tuesday of every month. The defendant admitted to ongoing marijuana use, however[,] denied any other drug use. The defendant stated he no longer sold, used, or possessed drugs due to his 6-year suspended commitment to the California Department of Corrections and Rehabilitation.
“On October 3, 2006, the defendant reported to [his probation officer]. The defendant again admitted to recent marijuana use. The defendant submitted a urine sample, which was returned positive for marijuana at a THC level of 400.
“On October 13, 2006, the Stanislaus County Court extended the defendant’s surrender date to December 28, 2006.
“On November 7, 2006, the defendant reported to the [p]robation [o]fficer. The defendant advised he had law enforcement contact at an airport in San Diego after he crossed security lines without a boarding pass. The defendant stated he was only in San Diego for ‘one day.’ The defendant again admitted to ongoing marijuana use.
“On December 12, 2006, the defendant reported to the [p]robation [o]fficer. The defendant requested a travel pass to St. Louis, Missouri. The [p]robation [o]fficer informed the defendant he would need to speak with the undersigned [probation officer] immediately went to the Probation Department lobby to speak with the defendant about his request for a travel pass, which was to be denied due to his upcoming surrender date, however[,] the defendant was not located.
“On December 28, 2006, the defendant failed to surrender himself to the county jail.
“On January 11, 2007, this officer telephoned the defendant since he failed to surrender himself to the county jail on December 28, 2006, and failed to report to the [p]robation [o]fficer on the first or second Tuesday in January 2007. This officer left a message on the defendant’s phone directing him to report to the [p]robation [o]fficer immediately. On January 12, 2007, this officer received a phone message from the defendant who stated he failed to surrender because he feels he is too medically fragile to be incarcerated during the winter. The defendant stated he has a doctor’s appointment on January 17, 2007, to get an exception to provide to the Court to ask for another extension on his surrender date.
“On January 25, 2007, this officer telephoned the defendant and left a message on the defendant’s phone to report to the [p]robation [o]fficer on January 26, 2007, since the undersigned yet had no proof that a warrant had been issued for his arrest.
“On January 25, 2007, the Stanislaus County Court revoked defendant’s probation and a warrant was issued for his arrest due to his failure to surrender to the county jail on December 28, 2006.
“On February 1, 2007, the Stanislaus County Court recalled the warrant, reinstated the defendant’s probation, and the defendant’s surrender date was extended to March 9, 2007.
“On February 26, 2007, officers from the Probation Department conducted a search at the defendant’s residence, though the defendant was not present. Found were two citations under the defendant’s name from the Merced Police Department (07-3615) dated January 24, 2007. One citation was for a violation of 14601.1(a) VC, driving on a suspended license and the second citation was for Court on March 24, 2007, for a misdemeanor traffic warrant, number MM200592, also from Merced County. This was the first this officer had learned of the defendant’s arrest on a new law violation. This officer told the defendant’s girlfriend, Crystal Matthews, that the defendant needed to report to this officer on February 28, 200[7]. Crystal stated she would inform the defendant of that appointment.
“The defendant failed to report to the Probation Officer for the month of February 2007.
“The defendant failed to surrender himself to the county jail on March 9, 2007, as ordered by the Court. As of this writing [March 23, 2007], the defendant has yet to surrender himself.
“On March 13, 2007, this officer reviewed a CLETS report ran on the defendant on March 12, 2007, for purposes of completing this report. Information in the CLETS report indicated the defendant has an outstanding warrant in Johnson County, Missouri. This officer confirmed that on February 6, 2007, the defendant was in Warrensburg, Missouri, and a traffic stop was conducted on the vehicle he was driving. The deputy allegedly found the defendant in possession of one pill of Ecstasy and the defendant allegedly gave a false name of Lantz Jackson. The defendant allegedly admitted to recently using Ecstasy and allegedly stated he had flown into Missouri two days prior. The defendant was arrested (report number 800188-07) and booked into the Johnson County Jail on February 6, 2007. After allegedly signing Lantz Jackson on several legal documents, the defendant’s fingerprints confirmed his true identity. The defendant made bond and was released from custody later that same day. On February 6, 2007, the Johnson County Prosecuting Attorney’s Office filed a criminal complaint alleging the defendant was in possession of Ecstasy and committed forgery, both felonies. When the defendant failed to appear in Court on March 7, 2007, the Johnson County Superior Court issued a warrant for his arrest, which remains outstanding.
“The defendant failed to report to the [p]robation [o]fficer as directed for the month of March 2007.”
DISCUSSION
I. DID THE TRIAL COURT ERRONEOUSLY SENTENCE APPELLANT TO STATE PRISON WITHOUT ORDERING THE PREPARATION OF A PROBATION REPORT?
Appellant contends the trial court illegally sentenced him to state prison without ordering the preparation of a presentence report by the probation officer.
On June 9, 2006, appellant entered into a plea agreement with the prosecution and the following exchange occurred:
“THE COURT:... Now, you have the right to have the matter referred to Probation for their investigation and report or you can waive that so I can sentence you this morning to what’s been agreed upon. Do you waive that referral?
“THE DEFENDANT: Yes.”
The court then proceeded to impose and suspend execution of sentence, placing appellant on three years of formal probation.
On April 2, 2007, the probation officer filed a violation of probation report in superior court. On September 7, 2007, the court conducted a contested hearing on appellant’s alleged violation of probation in the June 2006 case. At the conclusion of that hearing the court stated:
“[H]is probation has not been satisfactory, and I gave him a break. Negotiated disposition was made. And the attorney, Mr. Canty, did a good job getting this because the People were pretty adamant about six years of State Prison on this case; actually, more than six years, but I think I got them down to six.
“And it was very clear to him what was going to happen to him if he violated probation. I have multiple violations of probation. I gave him an opportunity to do this. He’s had other opportunities; he hasn’t done it. The only person he has to blame is himself.
“I find he is not a proper candidate for probation anymore because of his numerous violations and parole. He hasn’t abided by the terms and conditions of probation, hasn’t followed the Court’s orders or probation. [¶] And I’m going to impose the sentence that was imposed -- execution suspended on June 9, 2006....”
Appellant contends the probation officer’s violation of probation report was not designated as a presentence report, did not contain all of the required contents of a presentence report, and was stale because it was prepared and filed more than five months before the probation violation and sentencing hearing. Appellant submits the trial court sentenced him on September 7, 2007, without the preparation of a probation report as required by law (Pen. Code, §§ 1203, 1203.2, subd. (b); Cal. Rules of Court, rules 4.411(c), 4.411.5(a)).
Penal Code section 1203, subdivision (b)(1), requires the trial court to order a probation report “before judgment is pronounced” for persons “convicted of a felony” who are “eligible for probation.” (Pen. Code, § 1203, subd. (b)(1); People v. Dobbins (2005) 127 Cal.App.4th 176, 180 (Dobbins).) Failure to do so is generally treated as reversible error. (People v. Rojas (1962) 57 Cal.2d 676, 681.) In cases where the district attorney petitions the trial court to revoke a grant of probation, Penal Code section 1203.2, subdivision (b) provides that the trial court shall refer that petition to the probation officer. “After the receipt of a written report from the probation officer, the court shall read and consider the report and … the petition and may modify, revoke, or terminate the probation of the probationer.…” (Ibid.)
Where a felon has a prior probation report, California Rules of Court, rule 4.411(c), provides that “[t]he court must 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.” The rule itself does not define the period constituting a “significant period of time.” However, the Advisory Committee Comment to the rule provides that: “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 and Rehabilitation, it is unlikely that a new investigation is needed.” (Advisory Com. com., 23, Pt. 1B West’s Ann. Court Rules (2006) foll. § 4.411, p. 236.)
According to Dobbins, “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.” (Dobbins, supra, 127 Cal.App.4th at p. 181.) In Dobbins, the appellate court concluded the trial court erred in proceeding with sentencing where the original probation report was prepared approximately eight months before sentencing, and where that eight-month period included two months when defendant was not under custody. (Ibid.)
In the instant case, appellant expressly waived preparation of a presentence probation report at the June 9, 2006, hearing. On April 2, 2007, the probation officer filed a violation of probation report setting forth, among other things, appellant’s arrest information and substantive offenses, his alleged probation violation, criminal history information, detailed probation supervision summary, collateral information, and the probation officer’s evaluation and plan. These elements satisfied the requirements of California Rules of Court, rule 4.411.5 (probation officer’s presentence investigation report). Appellant contends, and respondent concedes, the report did not set forth a statement by appellant or victim information as required by California Rules of Court, rules 4.411.5(a)(4) and (a)(5). Nevertheless, the court conducted a contested hearing on the alleged violation of probation on September 7, 2007, approximately five months later. This was well within the six-month period allowed by California Rules of Court, rule 4.411, and the court allowed appellant to testify and explain why a purported medical condition precluded appellant from surrendering himself at the county jail on the appointed dates. In our view, the trial court did not err relying on the violation of probation report when it terminated the suspension of the six-year term on September 7, 2007.
Even assuming arguendo error, however, Dobbins held such error does not warrant automatic reversal and remand. (See Dobbins, supra, 127 Cal.App.4th at p. 182 [“Because the alleged error implicates only California statutory law, review is governed by the Watson harmless error standard. (See People v. Watson (1956) 46 Cal.2d 818, 834-836; People v. Mower (2002) 28 Cal.4th 457, 484.) That is, we shall not reverse unless there is a reasonable probability of a result more favorable to defendant if not for the error. (Watson, supra, at p. 836.)”].)
In criminal cases, if an error is one of state law that does not implicate constitutional rights, the standard of review for assessing prejudice is the Watson test, i.e., whether it is reasonably probable that a result more favorable to the appealing party would have been reached in absence of the error. (People v. Vasquez (2006) 39 Cal.4th 47, 66 (Vazquez).) A reasonable probability is one sufficient to undermine confidence in the outcome of the proceedings. (Strickland v. Washington (1984) 466 U.S. 668, 694; In re Neely (1993) 6 Cal.4th 901, 909.) Under California law, it is the burden of the appellant to demonstrate that there is a reasonable probability of a more favorable result. (People v. Hurtado (2002) 28 Cal.4th 1179, 1190.)
The primary purpose of the probation report required by Penal Code section 1203 is to assist the trial court in determining an appropriate disposition after conviction. (People v. Gorley (1988) 203 Cal.App.3d 498, 505-506.) The trial court in this case already had the benefit of a detailed violation of probation report, which was about five months old. In view of that report and the testimony at the September 7, 2007, hearing, appellant received the benefits of an informed sentencing court. Applying the Watson test to this case, we conclude that appellant has presented nothing to suggest a reasonable probability that he would have received a more favorable outcome had the probation officer submitted another report. This is particularly true where the trial court noted appellant had multiple opportunities to meet the terms and conditions of probation, that appellant failed to surrender as directed after December 2006, and that appellant failed to complete his county jail term. Considering these circumstances, there is no reason to believe that appellant would have received a more favorable result such as reinstatement of probation.
II WAS THE TRIAL COURT’S ATTORNEY FEES ORDER LAWFUL?
Appellant contends the trial court’s probationary order that he pay $200 in attorney fees was not supported by substantial evidence and should be set aside. Respondent argues that appellant forfeited his right to object because he not only failed to raise this objection in the court below but accepted the attorney fees order as a condition of probation. We agree with appellant that forfeiture does not apply and the attorney fees order cannot stand.
Upon the conclusion of criminal proceedings in the trial court, the court may—after giving defendant notice and a hearing—make a determination of his or her present ability to pay all or a portion of the cost of the legal assistance provided to the defense. (Pen. Code, § 987.8, subd. (b).) In this case no such hearing was conducted. The trial court did not evaluate, let alone determine, appellant’s ability to pay any fees or fines. The trial court made no findings concerning his ability to pay. Even if we were to presume an implied finding of ability to pay, there is no evidentiary basis to support it. Questions of sufficiency of the evidence are not subject to forfeiture. (People v. Butler (2003) 31 Cal.4th 1119, 1128.)
Respondent cites People v. Whisenand (1995) 37 Cal.App.4th 1383 as authority that appellant waived (or forfeited) his right to object to the attorney fees order by failing to challenge it at his sentencing. Whisenand is clearly distinguishable in that the court did conduct a victim restitution hearing in which evidence was received concerning defendant’s ability to pay. Here, no hearing was conducted and no evidence was presented concerning appellant’s ability to pay.
Having failed to give appellant notice and a hearing under Penal Code section 987.8, subdivision (b), the attorney fees order must be stricken.
DISPOSITION
The attorney fees order is ordered stricken. The superior court is directed to amend the abstract of judgment accordingly and to transmit certified copies of the amended abstract to all appropriate parties and entities. The judgment is affirmed in all other respects.