Filed 5/21/18 P. v. McGill CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
ALPHONSO MCGILL,
Defendant and Appellant.

A150358

(Contra Costa County
Super. Ct. No. 5-161436-1)

Alphonso McGill appeals his three-year sentence for bringing contraband into a jail. He argues the trial court erred in failing to order a probation report before sentencing and denying him an opportunity to present mitigating evidence, and denying his motion to reconsider or recall the sentence. We affirm.
I. BACKGROUND
McGill was charged by information with possession of cocaine base for sale (Health & Saf. Code, § 11351.5); possession of cocaine for sale (id., § 11351); possession of methamphetamine for sale (id., § 11378); sale or transportation of cocaine (id., § 11352, subd. (a)); sale, offer of sale, or transportation of methamphetamine (id., § 11379, subd. (a)); and bringing contraband into a jail (Pen. Code, § 4573, subd. (a)). As to all counts, he was alleged to have a prior serious or violent felony conviction within the meanings of sections 667, subdivision (d), 1170.12, subdivisions (b) and (c), and 1170, subdivision (h)(3), as well as two or more prior convictions within the meaning of section 1203, subdivision (e)(4).
The case was tried to a jury, and McGill was acquitted of all charges except bringing contraband into a jail. After excusing the jury, the court asked defense counsel, “Do you want to come back tomorrow morning? [¶] . . . [¶] . . . He probably has enough credit for time served to cover this, doesn’t he?” Defense counsel responded, “He should,” and a hearing was scheduled for 9:00 a.m. the following morning.
At that hearing on November 17, 2016, the court found the relevant allegations true and proceeded immediately to sentencing. The prosecutor stated the sentencing range for the conviction—two, three, or four years—and noted it would be doubled due to McGill’s prior conviction “strike.” He asked the court to sentence McGill to three years in state prison and later clarified that he recommended dismissing the strike and imposing the middle term. Defense counsel asked the court to dismiss the strike and sentence McGill to probation. She argued McGill’s only conviction since 2012 was for driving under the influence; he had complied with his terms of probation for that conviction; and he had no history of violence. She also argued the current conviction, while lawful, was based on a small bindle of methamphetamine found in McGill’s pocket during a booking search rather than his taking the contraband “into the jail voluntarily.” The court dismissed the strike, found McGill ineligible for probation pursuant to section 1203, subdivision (e)(4), and sentenced him to three years in prison.
McGill objected to the sentence: “We were offered three years on all six counts. And I was found not guilty on all five of them. And the lesser charge I still got three years.” The court explained, “[T]he legislature has made a determination that somebody who has two or more felony priors is ineligible for a grant of probation. [¶] . . . [¶] You have ten felony priors. [¶] . . . [¶] . . . [T]here’s no mitigating factors or aggravating factors present in this case to change the fact that the appropriate sentence is the midterm. [¶] . . . [¶] I have also stricken the ‘strike’ prior. [¶] . . . [¶] So you should be happy you’re walking out of here with three years, and not six.” McGill responded: “But I was going off of what you said yesterday, . . . ‘I’m quite sure that he has enough time so we’re going to . . . continue this in the morning.’ ” The court said, “I thought you had been in longer than 105 days.” Defense counsel noted that the court had discretion to strike the probation ineligibility clause. The court responded: “I understand that. But no court would, when somebody has, not two, but ten [felony priors].” McGill again pleaded for a lesser sentence than the pretrial offer, and the court explained it would have to find mitigating factors to sentence him to two years and there were none. “[Y]ou are, in essence, getting the minimum sentence.”
In December 2016, McGill filed a motion to reconsider his sentence. He argued the court erred in not ordering a probation report and denying him an opportunity to present mitigating evidence at sentencing. The People opposed the motion, arguing a probation report was not required because McGill was ineligible for probation and McGill was not denied an opportunity to present mitigating evidence. The court denied the motion, explaining no probation report was required because McGill was ineligible for probation.
II. DISCUSSION
On appeal, McGill argues the trial court erred in not ordering a probation report, unfairly denying him an opportunity to present mitigating evidence, and denying his motion to reconsider the sentence. He fails to establish error.
Section 1203 provides in relevant part: “(b)(1) [I]f 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. [¶] . . . [¶] (4) 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. . . . [¶] . . . [¶] (e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] . . . [¶] (4) Any person who has been previously convicted twice in this state of a felony . . . . [¶] . . . [¶] (g) If a person is not eligible for probation, the judge . . . , in his or her discretion, may direct the probation officer to investigate all facts relevant to the sentencing of the person. Upon that referral, the probation officer shall immediately investigate the circumstances surrounding the crime and the prior record and history of the person and make a written report to the court of his or her findings.” (Italics added.)
The trial court found McGill had a prior strike conviction, which rendered him statutorily ineligible for probation. (See §§ 460, subd. (a), 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1), 1192.7, subd. (c)(18).) McGill was also presumptively ineligible for probation pursuant to section 1203, subdivision (e)(4). McGill argues that a probation report was nevertheless mandatory on two theories. First, he suggests a report was mandatory from the start of the sentencing proceeding because the court could have found him eligible for probation by dismissing the prior strike conviction or by finding the section 1203, subdivision (e)(4) “interest of justice” exception applicable. Alternatively, he argues a report was mandatory from the moment the trial court dismissed the prior strike conviction (without, however, acknowledging that the court found the section 1203, subdivision (e)(4) “interest of justice” exception was not applicable, thus still rendering him ineligible for probation).
Neither theory is persuasive. Courts have held that a defendant with a prior strike conviction is ineligible for probation for purposes of the probation report requirement even though the trial court may dismiss the prior strike allegation pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. (People v. Franco (2014) 232 Cal.App.4th 831, 834; People v. Llamas (1999) 67 Cal.App.4th 35, 39, 41, fn. 8.) McGill cites no authority that this rule changes once a court exercises its discretion to dismiss a prior strike allegation. We also see no reason to apply a different approach to section 1203, subdivision (e)(4) probation ineligibility even though the court could find an “in the interest of justice” exception to ineligibility. Under McGill’s approach, a probation report would be mandatory in almost every case, contrary to the statutory scheme that clearly differentiates between probation-eligible and probation-ineligible cases with respect to whether probation reports are mandatory or discretionary. (See Franco, at p. 835 [inappropriate “to impose a mandatory duty on the trial court where the statutes and rules of court granting authority for probation reports do not so provide”].) We hold a probation report was not mandatory in McGill’s case.
McGill also argues the probation report would have been useful to the court in determining the length of his sentence even aside from the question of whether to grant him probation (which the court clearly stated it would not do given his number of prior felony convictions). This argument, however, is relevant to the court’s exercise of discretion in deciding whether to order a report, not to the question of whether ordering a report was mandatory.
When a probation report is discretionary and the defendant does not ask for one at sentencing, the defendant forfeits any argument that the court abused its discretion in failing to order the report. (People v. Franco, supra, 232 Cal.App.4th at p. 834; People v. Llamas, supra, 67 Cal.App.4th at p. 39.) McGill relies on section 1203, subdivision (b)(4), to argue his explicit waiver of the report was required, but that section applies only when a defendant is eligible for probation and a probation report is mandatory under section 1203, subdivision (b)(1). (Llamas, at p. 39.) Because McGill was statutorily ineligible for probation and did not request a probation report at sentencing, he has forfeited any argument the court abused its discretion in failing to order a report.
McGill also argues he was denied the opportunity to present mitigating evidence at sentencing. He suggests he was misled into not presenting mitigating evidence because, before he agreed sentencing could take place the day after his conviction, the court stated its belief that McGill was entitled to release on time served. However, as soon as the sentencing hearing began, the prosecutor noted the sentencing range was two, three or four years, doubled for the strike. McGill’s custody credits were 210 days with good conduct credit, shorter than the minimum possible sentence. Defense counsel, however, did not suggest McGill was unfairly surprised by the possibility of a prison term longer than the time he had served in jail. Nor did defense counsel, in either initial sentencing argument or in comments after the court pronounced sentence, request a continuance so she could offer mitigating evidence with respect to the length of the prison term. McGill personally objected to the sentence, saying he had expected to be released that day, but he neither directly nor indirectly suggested he could have presented mitigating evidence relevant to the length of the sentence. He instead complained of unfairness in receiving the same sentence offered before trial despite acquittal on five charges. Because McGill did not object at the time of sentencing that he was denied a fair opportunity to present mitigating evidence, he cannot now argue denial of such an opportunity violated his rights. (See People v. Scott (1994) 9 Cal.4th 331, 351–352.)
Finally, McGill argues the trial court erred in denying his motion to reconsider the sentence. On appeal, the parties dispute whether the trial court had jurisdiction to reconsider the sentence at the time McGill’s motion was filed and decided. They also dispute whether, assuming the court considered and denied an invitation to recall and resentence McGill pursuant to section 1170, subdivision (d), McGill had a right to appeal the court’s denial. We need not address these issues because we have already rejected the arguments underlying McGill’s motion: that a probation report was mandatory and that he was denied a fair opportunity to present mitigating evidence. Even assuming jurisdiction and the right to appeal the court’s ruling, there are no grounds to hold the trial court erred in its disposition of the motion.
III. DISPOSITION
The judgment is affirmed.





_________________________
BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
SIMONS, J.