P. v. Talamantes

Filed 6/25/07 P. v. Talamantes CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant Richard Ruben Talamantes appeals his sentencing following probation revocation in these two cases. He contends the trial court erred prejudicially in sentencing him without the benefit of a supplemental probation report. The People concede the error, but assert that defendant has failed to show prejudice. Defendant has the better argument: we shall vacate the judgment, affirm the convictions and remand for resentencing after preparation of a supplemental probation report.

BACKGROUND

In April 2004, defendant pled guilty in case No. SF091335A to taking a car without consent. (Veh. Code, 10851, subd. (a).) Among the fines and fees imposed were a restitution fine of $200 and victim restitution of $2,969.83.

In November 2004, he pled guilty in case No. SF093458A to petty theft with a prior theft conviction. (Pen. Code, 666.)

As relevant to this appeal, defendant was found to be in violation of probation in both cases in April 2005. Probation reports in both cases were filed in June 2005, and the following month, the trial court sentenced defendant to a prison term of two years in each case, suspended execution of the sentences, and reinstated probation on the same terms and conditions which had originally been imposed in April 2004.

Thereafter, petitions alleging defendant had violated probation in both cases were filed.

In March 2006, the court found defendant in violation of his probation, lifted the stay of execution, and ordered defendant to pay the previously ordered fines and victim restitution. The court granted defendant 295 days of custody credit in case No. SF091335A, and 182 days in case No. SF093458A.

DISCUSSION

Defendant contends the trial court erred by failing to request and to consider a supplemental probation report before imposing sentence upon his probation revocation. The People concede the error but claim that it is harmless.

Penal Code section 1203.2, subdivision (b) requires referral to the probation officer, preparation of a written report, and its consideration by the court upon a petition for revocation of probation. (People v. Dobbins (2005) 127 Cal.App.4th 176, 180.) California Rules of Court, rule 4.411(c) provides: The court must order a supplemental probatl;

ion officers report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared[,] and the Advisory Committee Comment to the rule suggests that 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. (See People v. Dobbins, supra, 127 Cal.App.4th at p. 181.)

Here, the only probation reports were submitted in June 2005, approximately nine months before the sentencing hearing at issue. This period is well in excess of the six months referred to by the Advisory Committee, and defendant spent much of it not under the watchful eyes of custodial authorities but released on probation. Accordingly, we agree that the trial court erred by proceeding without ordering a supplemental or updated report. (See People v. Dobbins, supra, 127 Cal.App.4th at p. 181.)

However, a trial courts failure to obtain a supplemental probation report prior to sentencing following the revocation of probation is subject to the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, at pages 834-836. (People v. Dobbins, supra, 127 Cal.App.4th at pp. 182-183.) Under this standard, we do not reverse unless there is a reasonable probability of a result more favorable to defendant if not for the error. (Dobbins, supra, 127 Cal.App.4th at p. 182.)

Defendant contends he was prejudiced by the failure to order supplemental reports because (1) the court did not account for the fact that he had made one payment of $200 toward his fines and fees when it ordered him to pay the same restitution fine and victim restitution previously ordered; and (2) although defendant spent additional time in jail between the June 2005 probation reports and his sentencing in March 2006, there is no information in the record to confirm the exact number of days spent in custody, or to allow him to determine if he was afforded all the custody credit to which he is entitled.

On these points, the People retort that defendant does not allege that he has not been appropriately credited in either respect and, in any event, he must first attempt to resolve them in the trial court. (People v. Culpepper (1994) 24 Cal.App.4th 1134, 1138.)

True, the appropriate method of correction of arithmetic errors such as miscomputation of custody credits and misallocation of fine and fee payments is to move for correction in the trial court. (Cf. People v. Culpepper, supra, 24 Cal.App.4th at p. 1138.) But without an updated probation report, defendant cannot discern whether he has been properly credited on either score. The error is not harmless.

DISPOSITION

Defendants convictions are affirmed, but the judgment is vacated and the matter remanded for resentencing after

consideration by the court of a supplemental probation report.

NICHOLSON , J.

We concur:

SCOTLAND, P.J.

RAYE , J.