Filed 1/27/14 P. v. Wade CA1/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                    DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137316
v.
CLENARD C. WADE,                                                     (Contra Costa County
                                                                     Super. Ct. No. 05-080361-9)
         Defendant and Appellant.


         Clenard C. Wade was convicted by a jury of grand theft, battery causing serious
bodily injury, criminal threats, assault by force likely to produce great bodily injury, and
false imprisonment. In an earlier appeal, we reversed the judgment with directions as to
the grand theft conviction, remanded on an issue of presentence conduct credits, and
otherwise affirmed the judgment. (People v. Wade (2012) 204 Cal.App.4th 1142
(Wade I).)
         In this second appeal, Wade challenges the trial court’s November 30, 2012
resentencing order. Wade contends the trial court should have ordered a supplemental
probation report before resentencing, and that the court should have resentenced him on
all counts instead of limiting resentencing to the one count reversed in the first appeal.
We affirm.
                                               I.       BACKGROUND
         Because this appeal only involves sentencing issues, it is unnecessary to detail the
underlying facts. Suffice it to say the judgment of conviction involved Wade’s threats
and acts of violence against two victims, Jane Doe I and Jane Doe II. The judgment of


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conviction resulted in an initial sentence of 33 years eight months to life, consisting of a
term of 25 years to life on count 15 (false imprisonment by violence, Pen. Code, §§ 236,
237, subd. (a)),1 concurrent terms of 25 years to life on count 2 (battery causing serious
bodily injury, §§ 242, 243, subd. (d)) and count 8 (criminal threats, § 422), a concurrent
term of three years on count 10 (assault by force likely to cause great bodily injury,
§ 245, subd. (a)(1)), a consecutive term of eight months on count 1 (grand theft, § 487),
and eight additional years on four enhancements. (Wade I, supra, 204 Cal.App.4th at
pp. 1145–1146.)
       As pertinent here, Wade’s first appeal resulted in the reversal of his grand theft
conviction (§ 487). (Wade I, supra, 204 Cal.App.4th at pp. 1150–1153.) Our disposition
states: “The judgment on count 1 is reversed with directions as follows: If the People do
not bring the defendant to trial within 60 days after the filing of the remittitur in the trial
court pursuant to section 1382, the trial court shall proceed as if the remittitur constituted
a modification of the judgment to reflect a conviction of petty theft (§§ 484, 488) and
shall resentence the defendant accordingly, including the determination of presentence
conduct credits. [Citation.] Following resentencing, the trial court is directed to send an
amended abstract of judgment to the California Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.” (Id. at p. 1153.)
       The People apparently elected not to retry Wade on count 1. At the November 30,
2012 resentencing hearing, defense counsel asserted that this court’s disposition in
Wade I entitled Wade to resentencing on all counts. Counsel indicated his intent to ask
the trial court to strike one or more strikes and to impose a sentence without a life term.
Counsel further insisted that Wade was entitled to a supplemental probation report under
California Rules of Court, rule 4.411,2 and requested that the court direct the probation
department to conduct an investigation into Wade’s behavior and performance in prison
during the three years subsequent to the original sentencing. Defense counsel made an


       1
           All further section references are to the Penal Code.
       2
           All further rule references are to the California Rules of Court.


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offer of proof that he believed Wade’s prison performance since 2009 had been good,
without any disciplinary issues.
       The People, and the trial court, disagreed with defense counsel about the scope of
resentencing following remand. The trial court determined it lacked jurisdiction to order
a supplemental probation report, or to resentence Wade on counts other than the theft
count. The court stated that even if it had the authority and discretion to do so, it would
decline to exercise its discretion in the manner urged by defense counsel. Proceeding to
“the one count that has been affected by the appeal,” the trial court directed that count 1
be reduced to petty theft (§§ 484, 488) and that the sentence be credit for time served as
to that count,3 with the sentence as to all other counts remaining the same. Thus, Wade
was sentenced to 33 years to life. This appeal followed.
                                     II.    DISCUSSION
       Wade raises four interrelated contentions. First, he argues the trial court had
jurisdiction, and a duty, under rule 4.411 to order a new probation report. Second, Wade
maintains the trial court had jurisdiction to reconsider all sentencing options following
remand. Third, he asserts the trial court had a duty to consider the possibility of a
different sentence on remand in light of an updated probation report. Finally, Wade urges
a remand of the case with directions to obtain an updated probation report and to
resentence Wade on all counts.
A.     The Trial Court Properly Understood the Scope of Resentencing
       The premise underlying all, or at least the final three, of Wade’s arguments is the
notion that this court’s disposition of the prior appeal required or permitted the trial court
to resentence Wade on all counts. However, as the trial court appropriately recognized,
this court’s directions upon disposition of the prior appeal were more limited.
       Following issuance of the remittitur in a criminal appeal, “the trial court is
revested with jurisdiction of the case, but only to carry out the judgment as ordered by


       3
         The minutes from the resentencing hearing reflect a six month jail sentence on
count 1, with credit for time served.


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the appellate court.” (People v. Dutra (2006) 145 Cal.App.4th 1359, 1366.) “The trial
court is empowered to act only in accordance with the direction of the reviewing court;
action which does not conform to those directions is void. [Citations.]” (Hampton v.
Superior Court (1952) 38 Cal.2d 652, 655.) “[T]he rule requiring a trial court to follow
the terms of the remittitur is jurisdictional in nature. [Citation.] The issues the trial court
may address in the remand proceedings are therefore limited to those specified in the
reviewing court’s directions, and if the reviewing court does not direct the trial court to
take a particular action or make a particular determination, the trial court is not
authorized to do so. [Citations.] [¶] . . . In short, when an appellate court remands a
matter with directions governing the proceedings on remand, ‘those directions are
binding on the trial court and must be followed. Any material variance from the
directions is unauthorized and void.’ [Citation.]” (Ayyad v. Sprint Spectrum, L.P. (2012)
210 Cal.App.4th 851, 859–860.)
       The directions contained in the disposition of Wade’s first appeal provided that if
the People did not retry Wade on the grand theft count, the trial court was to “proceed as
if the remittitur constituted a modification of the judgment to reflect a conviction of petty
theft (§§ 484, 488) and shall resentence the defendant accordingly . . . .” (Wade I, supra,
204 Cal.App.4th at p. 1153 & fn. 5, italics added.) By the italicized language, this court
conveyed its intent to limit resentencing to the petty theft conviction. The trial court
properly understood this when it resentenced Wade, and we find no merit to Wade’s
arguments to the contrary.
B.     The Trial Court Committed No Reversible Error by Declining to Obtain a
       Supplemental Probation Report
       Turning to Wade’s contention that the trial court had a duty to order a
supplemental probation report, Wade relies on two provisions of rule 4.411. He first cites
rule 4.411(b), which states that “[e]ven if the defendant is not eligible for probation, the
court should refer the matter to the probation officer for a presentence investigation and




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report.”4 He next points to rule 4.411(c), which provides that 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.”
       The original probation report was prepared on June 17, 2009, and Wade’s
resentencing on November 30, 2012, occurred more than three years later, bringing Wade
within the ambit of rule 4.411(c). (People v. Dobbins (2005) 127 Cal.App.4th 176, 181
[observing that the Advisory Committee Comment to rule 4.411 “suggests that a period
of more than six months may constitute a significant period of time”].) Although rule
4.411(c) is couched in mandatory terms, that rule has been interpreted as requiring a
supplemental probation report only where the defendant is eligible for probation. (People
v. Johnson (1999) 70 Cal.App.4th 1429, 1432 [decided under former rule 411(c)].)
Where, as here (see fn. 4, ante), a defendant is ineligible for probation, obtaining a
supplemental report remains discretionary with the trial court. (People v. Johnson, at
p. 1432.)
       Where ordering a current probation report on remand for resentencing is
discretionary, the court’s discretion is narrowed by the use of the word “should” in
rule 4.411, which “connotes strong encouragement, the indication of the preferred
practice. Hence, while the court has discretion to deviate from the preferred practice, it
must have a sound reason for doing so. [¶] . . . [¶] . . . Most assuredly, the court must
have some substantial basis for [denying defendant’s request for a current probation
report]; there must be far more than a subjective desire to avoid information which might
require consideration of something other than a maximum sentence. Anything less
deprives a defendant of his or her due process right to have the court exercise informed
sentencing discretion. [Citations.]” (People v. Tatlis (1991) 230 Cal.App.3d 1266,
1273–1274 [decided under former rule 418].)



       4
         Wade’s argument implicitly concedes he is not eligible for probation, as the trial
court determined at the initial sentencing hearing held on July 31, 2009, based on
sections 667, subdivision (c)(2) and 1170.12, subdivision (a)(2).


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       Here, after Wade requested a supplemental probation report at the resentencing
hearing, the trial court contemplated that it had discretion to order such a report before
denying Wade’s request. On this record, the trial court did not abuse its discretion, but
even if it did, any error would not require reversal under the harmless error standard.
(People v. Dobbins, supra, 127 Cal.App.4th at p. 182, citing People v. Watson (1956)
46 Cal.2d 818, 834–836.)
       In analyzing both questions, we remain mindful that a supplemental probation
report necessarily could have been utilized only within the narrow scope of our remand,
limiting resentencing to the petty theft conviction. The resentencing proceedings were
limited and did not, as urged by Wade, involve a reconsideration of the balance of
Wade’s sentence, including whether or not the court should exercise its discretion to
strike Wade’s prior strikes.
       Wade’s counsel made an offer of proof during the resentencing hearing that
Wade’s prison performance since 2009 has been good and discipline free. Because the
trial court was aware of this uncontested offer of proof at the time of sentencing, we
cannot agree that it failed to “exercise informed sentencing discretion.” (People v. Tatlis,
supra, 230 Cal.App.3d at p. 1274.) Wade does not point to any other favorable
information that would have been included in a supplemental probation report. As
previously noted, Wade received a six-month jail term for the misdemeanor petty theft,
with credit for time served. Wade does not suggest how any information encompassed in
an updated probation report, or in his offer of proof, would have resulted in a more
lenient sentence. Additionally, the judge who resentenced Wade was the same judge who
originally sentenced Wade after reviewing the original probation report. (See People v.
Dobbins, supra, 127 Cal.App.4th at p. 183.)
       Under the circumstances, we are not persuaded that the trial court erred in denying
Wade’s request for a supplemental probation report. Even assuming denying Wade’s
request was error, we find no reasonable possibility a supplemental probation report
would have affected the court’s very limited sentencing discretion on remand.



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                                 III.   DISPOSITION
     The judgment is affirmed.




                                              _________________________
                                              Bruiniers, J.


We concur:


_________________________
Jones, P. J.


_________________________
Simons, J.




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