Filed 6/16/17 P. v. Martinez CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERTO MARTINEZ,

Defendant and Appellant.


G052950

(Super. Ct. No. 14CF2433)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Vickie Hix, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Jared M. Hartman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Roberto Martinez contends the trial court prejudicially erred in failing to obtain a probation report before sentencing him following the revocation of his probation. Although, as respondent concedes, the failure to obtain a probation report was error, it is not reasonably probable appellant would have obtained a more favorable sentence had the court done so. We therefore affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
In December 2014, appellant pleaded guilty to domestic battery causing injury and admitted a prior conviction in exchange for the prosecution dismissing a charge of aggravated assault. After appellant waived his right to a presentence probation report, the court suspended imposition of sentence and placed him on three years’ probation. As a condition of his probation, appellant was required, inter alia, to spend a year in jail (with credit for time served) and complete a 52-week batterer’s treatment program.
Appellant was released from custody in early 2015 and indoctrinated to the terms of his probation in March of that year. Seven months later, in October 2015, the probation department filed a petition alleging appellant had violated those terms by:
1) not reporting to his probation officer for several weeks in August and September;
2) not submitting to drug testing during that time; and 3) not attending a batterer’s treatment program.
On December 2, 2015, the court held a contested hearing on the petition. After the court took judicial notice of the allegations in the petition, appellant testified at length regarding his activities since being released from jail in January 2015. Appellant said he started working at El Pollo Loco in March and was living with his aunt for a while, but then he ended up “on the street” and was going through some tough times. During this period, his probation officer knew he was working long hours and unable to report to her in person on a regular basis. She said that was okay, so long as he stayed in touch with her by phone. Appellant did that for several weeks, but then he lost his phone and failed to continue. Even after he got a new phone he forgot to give his probation officer his new phone number. Consequently, they did not have any contact for about a month during the summer. It wasn’t until mid-September, when he found out there was a warrant for his arrest, that he finally spoke with his probation officer. By then, it was too late for her to do anything, so appellant planned to turn himself in on September 21. However, the day before that, he got in a fight with his former girlfriend at his residence and someone “called the cops.” When the police arrived, they arrested appellant on his outstanding warrant and took him into custody.
Speaking to his efforts to enroll in a batterer’s treatment program, appellant testified he did not get going on that until September. And once he got his enrollment papers in and paid for some of the classes, it was hard for him to get to them because he did not have a car. On the plus side, though, his probation officer told him he could get credit for classes he had taken in the past in connection with another one of his cases. It is unclear from the record how many classes appellant had attended or been given credit for by the time of his probation revocation hearing.
Given that ambiguity, the trial court determined there was insufficient evidence to find appellant in violation of his probation for failing to attend a batterer’s treatment program. However, the court was convinced appellant had failed to regularly report to his probation officer, as required per the terms of his probation. It therefore revoked his probation and put the matter over for sentencing.
The sentencing hearing was held two weeks later, on December 17, 2015. Although the court invited argument from the parties, it did not order or obtain a presentencing report from the probation department. The prosecution asked the court to sentence appellant to the midterm of three years in prison for his crime of domestic battery causing injury with a prior. It felt appellant’s actions warranted incarceration because he inflicted injuries on a victim who was vulnerable due to her intimate relationship with appellant. Defense counsel opposed that proposal and asked the court to reinstate appellant on probation. In making that request, defense counsel pointed out this was appellant’s first probation violation in this case. He also claimed the violation was based on a “misunderstanding” and played up the fact appellant had enrolled in batterer treatment classes. As part of his argument for leniency, defense counsel also represented that appellant had voluntarily taken a substance abuse class.
The trial court was not impressed. While the judge credited appellant for getting a job and enrolling in a batterer treatment class, she said appellant’s enrollment records indicated he had actually withdrawn from that class. The court also expressed concern over appellant’s criminal record and the violent nature of his present offense. With respect to appellant’s record, the court noted he committed a “hit and run ” in 2012 and had “quite a few domestic violence priors.” Furthermore, while on probation in one of those prior cases, appellant was convicted of disobeying court orders on three different occasions between 2012 and 2014. All told, the court gathered appellant was not truly interested in making an effort to take advantage of probation. It sentenced him to three years in prison.
DISCUSSION
Appellant contends the trial court’s failure to obtain a probation report before sentencing him to prison constitutes reversible error. We do not see it that way.
The parties agree that because appellant was eligible for probation, he was entitled to a probation report prior to sentencing. (Pen. Code, § 1203, subd. (b)(1).) They also agree that right existed even though appellant waived his right to a probation report at his original sentencing hearing in December 2014. (See People v. Mercant (1989) 216 Cal.App.3d 1192, 1195 [regardless of the procedural posture of the case, a current probation report is required each time the court passes judgment on the defendant].) The only issue in dispute is whether the trial court’s failure to order a probation report is cause for reversal.
In deciding that issue, we must keep in mind the primary reason for requiring a presentence probation report is to assist the court in making an informed sentencing decision. (People v. Edwards (1976) 18 Cal.3d 796, 801.) Thus, where the court lacks current and reliable information about such matters as the defendant’s criminal record and his most recent crimes and/or probation violations, the failure to obtain a probation report will usually constitute reversible error. (See, e.g., People v. Rojas (1962) 57 Cal.2d 676, 682-683; People v. Conners (2008) 168 Cal.App.4th 443, 456-457; People v. Mercant, supra, 216 Cal.App.3d 1192; People v. Mariano (1983) 144 Cal.App.3d 814, 824-825.) On the other hand, if such information is made available to the court by other means, the failure to obtain a probation report will be considered harmless error under general principles of appellant review. (See, e.g., People v. Dobbins (2005) 127 Cal.App.4th 176 [failure to obtain an updated probation report following revocation of probation deemed harmless where, despite the lack of a such a report, the sentencing court was aware of the defendant’s criminal history, his prior performance on probation and the basis for his most recent probation violation].)
In other words, contrary to appellant’s belief, reversal is not “automatic” when the court fails to obtain a current probation report prior to sentencing. (People v. Dobbins, supra, 127 Cal.App.4th at p. 182 [the absence of a probation report only implicates “California statutory law,” not a “federal constitutional right”].) Rather, reversal is only required when it is reasonably probable the defendant would have obtained a more favorable sentence had such a report been produced. (Ibid.)
Here, the trial court based its sentencing decision on appellant’s criminal record, the facts of his most current offense, and the circumstances of his probation violation. Having presided over the probation revocation hearing, the court was intimately familiar with how appellant was performing on probation and what rehabilitative efforts he had made in the year leading up to the sentencing hearing. It was also aware of his dismal record regarding previous probations and court orders. Appellant does not dispute the accuracy of any of the information the court relied on, nor does he point to any other information or factors that could have affected the court’s decision. Accordingly, we do not believe it is reasonably probable he would have received a more favorable sentence had the trial court obtained a probation report. No cause for reversal has been shown.
DISPOSITION
The judgment is affirmed.


BEDSWORTH, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.