Filed 7/19/17 P. v. Chastang CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER MARK CHASTANG,

Defendant and Appellant.
D070926



(Super. Ct. No. SCE32617)

APPEAL from a postjudgment order of the Superior Court of San Diego County, Ronald R. Frazier, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier and Minh U. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

I
INTRODUCTION
Christopher Mark Chastang appeals from a postjudgment order revoking his probation and sentencing him to two years in prison. He contends we must reverse the order because the court erred by failing to obtain and consider a supplemental probation report before revoking his probation. We conclude any error was harmless under the circumstances of this case. We, therefore, affirm the order.
II
BACKGROUND
Chastang pleaded guilty to possessing a firearm after having been previously convicted of a felony. (Pen. Code, § 29800, subd. (a)(1).) The court suspended imposition of sentence for three years and granted him formal probation, subject to numerous conditions. Before the sentencing hearing, the probation department filed a report, which included information about Chastang's offense, personal data, criminal history, past performance on probation, substance abuse treatment history, and psychological and medical problems.
Eighteen months later, the probation department filed a report alleging Chastang had violated several conditions of his probation. The violations included failing to obey all laws, failing to report to his probation officer as directed, having two positive drug tests, and failing to attend self-help meetings as directed. Chastang admitted the violations, and the court revoked and reinstated his probation with modifications.
Another eighteen months later, the probation department filed a report indicating Chastang had been rearrested and detailing several probation violations. Specifically, he failed to report to his probation officer as directed on nine separate occasions over a 14-month period. On one occasion, he had been admitted to a hospital after having a mental breakdown. Although his probation officer directed him to report to probation within 72 hours of his release from the hospital, he did not do so. He also did not directly check into a crisis house to which the hospital had referred and transported him. Consequently, he was later denied entry into the crisis house.
Moreover, he was discharged from an outpatient substance abuse treatment program because he did not attend the program regularly and, when he did attend, he admitted he was using methamphetamine. He was subsequently directed to enroll in a residential treatment program, but did not do so. He also did not complete a required driving under the influence program. He had been discharged from one program and never reenrolled in another.
His drug testing history was consistent with his failure to complete a substance abuse treatment program. On four occasions, he tested positive for methamphetamine and/or amphetamine. On one occasion, methamphetamine was present in his urine, but the level was under the federal guideline for reporting a positive test result. On three occasions, he tested negative, but his urine sample had been diluted. On three other occasions, he failed to produce a valid sample for testing.
Finally, he did not obtain prior approval from his probation officer before traveling to Mexico. He admitted to traveling to Mexico multiple times and indicated he lived in Mexico half of the time.
In addition to specifying Chastang's probation violations, the report discussed the court's sentencing options as well as circumstances in mitigation and aggravation. The report noted Chastang had voluntarily acknowledged wrongdoing at an early stage of the criminal process. However, the crime involved great bodily harm and use of a weapon, Chastang's prior convictions were of increasing seriousness, and his prior performance on probation was unsatisfactory. The report recommended the court impose an upper term sentence of three years.
The court conducted a probation violation hearing at which Chastang's probation officer testified consistent with the information in the probation report. Chastang also testified, explaining he was excused from the missed probation appointments because he called in beforehand. As for the outpatient treatment program, he acknowledged he did not make "every attempt" to attend, but he made an "honest attempt" to attend three to four days a week. When he had to miss a session, he did not call in because the program did not require it. Instead, he just went to the next session. He indicated he had mental issues from documented severe head trauma he sustained in jail and had been hospitalized several times earlier in the year. He did not apply to a residential treatment program because he was still looking for one appropriate for him given his injuries.
Following Chastang's testimony, the court took judicial notice of Chastang's file, including his probation file. After considering the testimonial evidence, the evidence in Chastang's file, and the parties' arguments, the court found Chastang had violated multiple probation conditions.
The court then asked Chastang's counsel whether she waived arraignment and time for sentencing and whether there was any legal cause why the court could not pronounce judgment. Counsel waived arraignment and time for sentencing. She also indicated there was no legal cause why the court could not pronounce judgment.
After hearing Chastang's allocution, the court revoked Chastang's probation and sentenced him to the middle term of two years in prison. In making its sentencing choice, the court explained it did not find any mitigating factors and, although it found there were significant aggravating factors, the aggravating factors did not warrant more than the middle term sentence.
III
DISCUSSION
Generally, "if a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment." (§ 1203, subd. (b)(1).)
"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 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." (§ 1203, subd. (b)(4).) Further, "[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." (Cal. Rules of Court, rule 4.411(c)).
Chastang contends we must reverse the court's order and remand because the court failed to obtain a supplemental probation officer's report before sentencing him to prison. The People contend Chastang forfeited this issue by failing to object below and, regardless, the report submitted when the probation officer arrested him satisfied the supplemental report requirement under section 1203.2, subdivision (b)(1). We need not resolve these contentions as we concluded any error in failing to obtain a supplemental report was harmless under the circumstances.
An error in failing to obtain a supplemental probation report implicates only state statutory law and, consequently, we review it under the harmless error test in People v. Watson (1956) 46 Cal.2d 818, 834–836. Under this test, "we shall not reverse unless there is a reasonable probability of a result more favorable to defendant if not for the error." (People v. Dobbins (2005) 127 Cal.App.4th 176, 182.)
Here, the original probation report, of which the court took judicial notice, apprised the court of Chastang's background and other relevant information, including his head injury and his impending mental health diagnosis. The reports prepared for the probation violations and the testimony of the probation officer at the probation revocation hearing informed the court of Chastang's performance on probation, including his persistent substance abuse; inability to complete substance abuse treatment, whether self-help, outpatient, or inpatient; failure to report to his probation officer as directed; and repeated travel out of the country without authorization. The reports also informed the court of Chastang's assertion he was unable to complete substance abuse treatment because of his prior head injury. Chastang's testimony informed the court of Chastang's perspective of his performance on probation and his mental health concerns. Chastang's testimony also informed the court Chastang ostensibly desired substance abuse treatment, but had no specific plan to obtain it. To the contrary, the testimony indicated Chastang was somewhat skeptical of finding a treatment provider who could help him given his brain injury. It also indicated Chastang did not appreciate the severity of his other performance deficiencies. Considering these circumstances, the short amount of time remaining on the grant of probation, and the court's assessment of the aggravating and mitigating factors, we have no difficulty concluding it is not reasonably probable the court would have granted Chastang further probation or imposed a lower term sentence had a supplemental probation report been prepared. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Dobbins, supra, 127 Cal.App.4th at p. 183.)
 
IV
DISPOSITION
The order is affirmed.


MCCONNELL, P. J.

WE CONCUR:



HALLER, J.



AARON, J.