Filed 12/17/14 P. v. Farrell CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065137

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD250845)

TIMOTHY JEROME FARRELL,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Dwayne K. Moring, Judge. Affirmed.

         Law Office of Johanna S. Schiavoni and Johanna S. Schiavoni, under appointment

by the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

         Timothy Jerome Farrell appeals after the trial court denied his motion to strike his

serious/violent felony prior conviction and sentenced him to prison. He contends that

although the trial court had a full probation report and a written motion to strike the prior
convictions, the court should have ordered a supplemental probation report on its own

motion. From that faulty premise, appellate counsel reasons it is likely the trial court

would have granted the motion to strike the prior conviction and would have granted

Farrell probation. We will find the argument, on this record, to be wholly without merit

and affirm the judgment.

       Farrell entered a guilty plea to petty theft after a theft-related prior conviction

(Pen. Code,1 §§ 484, 666). He also admitted a serious/violent felony prior conviction

within the meaning of section 667, subdivisions (b) through (i) (strike prior).

       The prosecution made no promises to induce the plea, however the trial court

stated it would "strongly consider" dismissing the strike prior and grant probation.

       Farrell filed a motion pursuant to People v. Superior Court (Romero) (1996) 13

Cal.4th 497 (Romero motion). At sentencing the trial court denied the Romero motion

and also denied probation. Farrell was sentenced to a determinate term of 32 months in

prison (the low term doubled because of the strike prior). Farrell filed a timely notice of

appeal and obtained a certificate of probable cause (§ 1237.5).

                                 STATEMENT OF FACTS

       Farrell entered a Ralph's grocery store and placed several items worth

approximately $250 in a shopping bag and left the store without paying for the items.




1      All further statutory references are to the Penal Code unless otherwise specified.
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                                       DISCUSSION

       Farrell's challenge to his sentence is based on several contentions. First, he argues

the probation report was insufficient because it advised the court that Farrell was

absolutely ineligible for probation, based on his admission of a strike prior. Based on

that assertion Farrell argues the court was not fully informed of its sentencing options

regarding Farrell's suitability for probation and therefore the court had a sua sponte duty

to order a supplemental probation report. The conclusion counsel posits from this

syllogism is that the court would have likely granted his Romero motion and we should

remand the case for resentencing.

       First, the premises upon which the argument is based are faulty because the

probation report, coupled with the information in the defendant's Romero motion, fully

informed the trial court of Farrell's criminal history, his health issues and the nature of his

strike prior conviction, thus fully informing the trial court of the facts needed to make a

reasoned decision.

       Finally, Farrell has provided no authority that would support imposing a sua

sponte duty on trial courts to order supplemental reports in original sentencings.

                                       A. Background

       At the time of his guilty plea, Farrell was advised that the court was going to

seriously consider striking the serious/violent felony prior conviction. The court also

advised Farrell that in the event the court did not strike the prior conviction that Farrell

would be sent to prison and that the minimum time would be 32 months. As we have

noted, after a full hearing the trial court denied the Romero motion and sentenced Farrell

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to the minimum term in prison. Notably, Farrell does not challenge his guilty plea. Nor

does Farrell contend the trial court's decision to deny the Romero motion was an abuse of

discretion.

          Prior to sentencing, the trial court ordered a full probation report. The probation

report recited the preplea representations the court made to Farrell about the possibility of

probation. The report also reminded the court that one plan discussed at the time was for

Farrell to look into screening for possible residency in Granite Hills Health Care Center.

The report also discussed the facts of the current offense, Farrell's criminal history,

including the facts of the strike prior, and Farrell's dismal performance on probation and

parole.

          Much of the focus of this appeal is directed at the probation officer's statement that

Farrell is "absolutely ineligible for probation," which was factually accurate as long as

the strike prior remained. (§ 667, subd. (c)(2).) However, the report continued and

discussed possible alternatives:

             "Even if the defendant is deemed an appropriate candidate for
             probation, it is his admission to a strike prior in this case which has
             made him absolutely ineligible for probation. [¶] Therefore, it is
             recommended that the defendant be denied probation and be
             committed to the Department of Corrections and Rehabilitation for a
             term of 32 months, which would accomplish the general objectives
             for sentencing, protecting society, appropriately punishing the
             defendant and providing deterrent [sic] to others from criminal
             conduct by demonstrating its consequences. [¶] The undersigned is
             cognizant that in the plea agreement the court has indicated it will
             consider striking the strike and placing the defendant on probation.
             If this is the course of action for the court, alternative
             recommendations can be made available for today's hearing.
             However, given the defendant is already on parole supervision and
             will be so until 11/18/2015 and to avoid duplication of services, the

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           recommendation would be for the defendant to be granted felony
           probation to the court." (Italics added.)

       Farrell's Romero motion contained a good deal more information on his

background, his medical and family history and the nature of his current serious illness

and necessary medication. The motion also contained copies of the medication records

for Farrell from the Sheriff's Department.

       During the hearing on the Romero motion there was no objection to the probation

report, request for time to produce additional information and certainly no request for a

supplemental probation report.

                                   B. Legal Principles

       Farrell contends the court had a sua sponte duty to request a supplemental

probation report. Farrell does not cite any authority to support a sua sponte duty and our

research has found none. Rather, Farrell relies on a group of cases that involve the

question of whether, after reversal on appeal, a trial court should obtain an updated

probation report before resentencing. That is, however, not the situation presented to the

trial judge here.

       Farrell relies on People v. Tatlis (1991) 230 Cal.App.3d 1266, 1273-1274, People

v. Bullock (1994) 26 Cal.App.4th 985 and People v. Rojas (1962) 57 Cal.2d 676, 80-82.

All of those cases involved remands for sentencing after reversal on appeal. In both

Rojas and Tatlis there were requests for updated probation reports due to the passage of

time while the cases were on appeal. The court in Bullock, supra, at page 990, declined




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to require a supplemental probation report on remand where the defendant was ineligible

for probation.

       In People v. Llamas (1998) 67 Cal.App.4th 35, 37-38 (Llamas), this court dealt

with a remand for resentencing following appeal. The defendant, who was ineligible for

probation because of a strike, asked the trial court to strike the prior conviction. On

appeal the defendant argued the court should have ordered a supplemental probation

report, even though defense counsel had submitted additional material to the trial court

prior to its ruling. This court rejected the contention. There we noted the trial court had

all of the needed information before it. We observed: "Nothing would have been added

to Llamas's efforts to persuade the court to dismiss his strike and make more lenient

sentencing choices had a supplemental probation report reiterated information conveyed

by other sources (Llamas's statement, the show of support from family and friends,

counsel's argument and documentation, the statement in mitigation, and the original

probation report). Moreover, we must presume the court was aware of its discretion

[citation] to dismiss the strike." (Id. at pp. 40-41.)

                                         C. Analysis

       In this case the court had a current probation report that fully detailed the

information the court needed to consider Farrell's offenses, background and suitability for

probation. Like the court in Llamas, supra, 67 Cal.App.4th 35, the court also had

extensive material from defense counsel in mitigation and in support of the motion to

strike the prior. Indeed, the probation report recognized the court's preplea comments

and offered alternatives if the court decided to strike the prior. Nothing would have been

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added by yet another probation report, and nothing has been demonstrated on appeal that

would support an inference that a different outcome would have happened if a

supplemental report had been provided. There is nothing in this record to support a

reversal of the trial court's decision.2

                                           DISPOSITION

       The judgment is affirmed.




                                                                   HUFFMAN, Acting P. J.

WE CONCUR:


                   McDONALD, J.


                        AARON, J.




2       Since we have resolved this case on the merits, it is unnecessary to address
Farrell's alternate claim of ineffective assistance of counsel, which he raised in the event
we found forfeiture.
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