Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C160339
RUVOLO, P. J.
I.
INTRODUCTION
On January 27, 2009, appellant Berhane Woldai Tshai entered a plea of no contest to possession of concentrated marijuana. (Health & Saf. Code, § 11357, subd. (a).) Pursuant to his negotiated plea agreement, the trial court suspended imposition of appellant’s sentence and placed him on three years of formal probation. Appellant waived his right to enter a drug treatment program under Proposition 36.
At a hearing on March 10, 2010, the trial court found, by a preponderance of the evidence, that appellant had violated his probation by committing new offenses. After reviewing appellant’s probation report prepared for his earlier February 26, 2009 sentencing hearing, the trial court terminated appellant’s probation and sentenced him to the midterm of two years imprisonment with 264 days credit for time served.
On appeal, appellant claims the trial court erred by failing to order and consider an updated or supplemental probation report before declining any further grant of probation. Respondent concedes the trial court erred by failing to order and consider a supplemental probation report before sending appellant to state prison for a two-year term, but argues such error was harmless. We agree. Accordingly, we shall affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Since this appeal involves only a sentencing issue, we provide a summary of the background facts necessary to consider such issue. At about 9:00 p.m. on January 6, 2009, Oakland police stopped appellant’s car after observing that its front license plate was missing. The officers approached the vehicle and made contact with a male, later identified as appellant. Appellant advised the officers that he did not have his driver’s license or photo identification with him. During the stop, the officers noticed the odor of marijuana coming from inside the vehicle. Appellant was then asked to step outside of the vehicle and place his hands behind his back so the officers could investigate the marijuana odor coming from the inside of the vehicle. A check on appellant revealed that he was on court probation for theft (Pen. Code, § 484), with a search and seizure clause. Inside appellant’s vehicle, officers recovered approximately 10 grams of marijuana in a clear plastic bag, packaging materials consisting of small Ziploc baggies, a black four-by-six-inch scale, and United States currency in various denominations. The officers arrested appellant, and he was subsequently charged with possession of marijuana with the intent to sell (Health & Saf. Code, § 11359).
On January 27, 2009, appellant entered a plea of no contest to a violation of Health and Safety Code section 11357, subdivision (a). In exchange for his no contest plea, appellant was to receive no state prison time, be placed on three years felony probation, and given credit for time served at report and sentence.
Subsequently, on November 25, 2009, the prosecutor filed a petition to revoke probation based on allegations that appellant had committed a battery against a cohabitant, and had made criminal threats, in violation of Penal Code sections 422 and 243, subdivision (e)(1). On March 10, 2010, following a contested probation revocation hearing, the trial court found, by a preponderance of the evidence, that appellant had both made threats and committed acts of domestic violence against a woman with whom he had been cohabitating. Appellant does not challenge the court’s findings that he committed the offenses, and that they constituted violations of the terms of his probation.
After reviewing the probation report originally prepared for his February 26, 2009 sentencing hearing, the trial court terminated appellant’s probation and sentenced him to the midterm of two years imprisonment with 264 days credit for time served.
III.
DISCUSSION
The trial court must order a probation report when a person is convicted of a felony and eligible for probation. (Pen. Code, § 1203, subd. (b).) In contrast, when a person is convicted of a felony and is ineligible for probation, for example, because of a prior strike, we note that “case law has recognized that a probation report is not necessarily required if defendant is statutorily ineligible for probation.” (People v. Dobbins (2005) 127 Cal.App.4th 176, 180 (Dobbins); see, e.g., People v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1432; People v. Llamas (1998) 67 Cal.App.4th 35, 39-40.)
When probation is revoked or other circumstances lead to the passage of a “significant period of time” between the original probation report and subsequent sentencing proceeding, the court must order a supplemental probation report. (Cal. Rules of Court, rule 4.411(c) [“The 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.”].) According to the Advisory Committee Comment to rule 4.411(c), a period of more than six months may constitute a significant period of time. (Advisory Com. Com., West’s Cal. Rules of Court (2010 Rev. ed.) foll. rule 4.411(c), p. 247; accord, Dobbins, supra, 127 Cal.App.4th at p. 181.)
In this case, appellant plead no contest to a charge of possession of concentrated marijuana, and his sentencing hearing for this offense took place on February 26, 2009. The sentencing judge who took appellant’s plea reviewed a then-current probation report and ultimately determined that a suspension of appellant’s sentence and placement on three years of formal probation was appropriate. On March 9 and 10, 2010, at the probation revocation hearing, the judge found, by a preponderance of the evidence, that appellant had violated the terms of his probation by committing new offenses. The judge ultimately concluded that revocation of appellant’s probation was appropriate. However, in deciding to revoke appellant’s probation, the judge relied on the probation report prepared for his February 26, 2009 hearing. Because the original probation report was prepared a little over a year before the probation revocation hearing, including eight months during which appellant served probation out of custody, this period was well in excess of the six months referred to by the Advisory Committee. Accordingly, the trial court committed error by revoking appellant’s probation without first ordering a supplemental or updated probation report.
Appellant did not waive or forfeit his right to a supplemental probation report for his probation revocation hearing. Penal Code section 1203, subdivision (b)(4) provides as follows: “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 there shall be no waiver unless the court consents thereto. However, if the defendant is ultimately sentenced and committed to the state prison, a probation report shall be completed pursuant to Section 1203c.” Like the court in Dobbins, we find this language to be straightforward and unambiguous. Here, there is no indication in the record that the parties entered into a written stipulation of waiver of the supplemental probation report, nor was such a stipulation made orally in open court.
However, although a supplemental report was presumptively required here, this does not automatically result in a reversal of the decision below. (Dobbins, supra, 127 Cal.App.4th at p. 182.) Rather, when a trial court fails to order a supplemental probation report, the error is reviewed under the Watson harmless error standard. (Ibid.) As the Dobbins court stated, “[w]e perceive no federal constitutional right to a supplemental probation report. 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; see also 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. [Citation.]” (Dobbins, supra, 127 Cal.App.4th at p. 182.)
In Dobbins, the court concluded that the lack of a supplemental probation report was harmless because the original report apprised the trial court of the defendant’s adult criminal record, including parole violations and lengthy periods of incarceration. In concluding that the trial court’s error was harmless, the Dobbins court stated that, “[c]onsidering these circumstances, there is no reason to believe that additional information would have led to reinstatement of probation.... [¶] [¶] It is not reasonably probable defendant would have been granted probation had a supplemental probation report been prepared. [Citation.]” (Dobbins, supra, 127 Cal.App.4th at p. 183.)
Similar to the defendant in Dobbins, appellant has an extensive adult criminal record, including multiple prior probation revocations. The trial court was well aware of appellant’s record at the time of sentencing, noting “it seems that [appellant] is not successful on probation and I don’t see any point in continuing him on probation.... [T]he Court specifically finds that [appellant] is not amenable to probation because he’s been put on probation a number of times and he’s had, according to the [February 2009] probation report, six revocations, five failures to appear, and convictions in Alameda County and out of Alameda County.” The trial court acknowledged that although none of appellant’s prior convictions appeared to involve crimes of violence, his criminal record nevertheless showed that his criminal actions were increasing in number.
The Dobbins court also considered, as a factor weighing in favor of harmless error, the fact that the sentencing judge was the same judge who conducted the violation hearing and was intimately familiar with the facts surrounding the violation. (Dobbins, supra, 127 Cal.App.4th at p. 183.) Similar to Dobbins, here, the judge who sentenced appellant to prison for his probation violation was the same judge who presided over the probation revocation hearing and hence was likewise “intimately acquainted with the facts underlying his violation of probation.” (Ibid.)
Appellant fails to show that there is a reasonable probability of a result more favorable to him had the trial judge had the opportunity to review an updated supplemental probation report. Even though the trial judge here, unlike the judge in Dobbins, did not review a Proposition 36 status report prior to her decision to revoke appellant’s probation, in light of appellant’s extensive criminal record, his numerous probation revocations and the fact that the same judge both sentenced him and presided over his probation revocation hearing, there is no reason to believe that any additional information would have led the trial judge to decide to reinstate probation. There was no offer made that anything had transpired since the time of the initial probation report’s issuance indicating anything other than that appellant’s “progress on probation was undoubtedly unsatisfactory by any measure.” (Dobbins, supra, 127 Cal.App.4th at p. 183.)
Therefore, we conclude that although the trial judge erred by not ordering a supplemental probation report prior to her decision to revoke appellant’s probation, that error was harmless.
IV.
DISPOSITION
The judgment is affirmed.
We concur: REARDON, J.SEPULVEDA, J.