Filed 5/19/16 P. v. Estrada CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C079390

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF124592A)

         v.

MANUEL ESTRADA III,

                   Defendant and Appellant.




         Defendant Manuel Estrada III was placed on probation following a guilty plea to
several counts. Twenty months later, he was found in violation of probation and
sentenced to a three-year prison term. On appeal, defendant argues the trial court erred in
denying his request for a supplemental probation report prior to resentencing. The People
concede error, and we agree. We remand for resentencing.




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                                     BACKGROUND
        In September 2013, defendant pled guilty to corporal injury to a spouse (Pen.
Code, § 273.5, subd. (a); count 1),1 misdemeanor criminal threats (§ 422; count 3), and
misdemeanor dissuading a witness or victim from reporting a crime (§ 136.1, subd.
(b)(1); count 4). In exchange, various counts were dismissed and other counts were
reduced to misdemeanors.
        The trial court suspended imposition of sentence and placed defendant on
probation. The court ordered defendant to serve 365 days in jail on count 1 and 90 days
consecutive on count 3. The court also ordered defendant to complete a 52-week
domestic violence program and stay 100 yards away from the victim and have no contact
with her. The parties waived the preparation of a probation report.
        Nearly 20 months later, in May 2015, the court found defendant in violation of
probation, for failing to obey a probation officer’s direction. Before the court imposed
sentence, defense counsel requested a supplemental probation report. The court
responded: “Is he entitled to that? I don’t think he is.” A short while later when the
court again asked if defendant was entitled to a supplemental report, the following
colloquy occurred:
        “[DEFENSE COUNSEL]: I think [defendant] would just prefer that you
        go ahead and --
        “THE COURT: Impose sentence?
        “[DEFENSE COUNSEL]: -- as long as you give him all of his credits.
        And by my calculation --
        “THE COURT: He’s entitled to his credits. Okay I’m going to impose the
        mid term. That’s three years on Count I. Additional eight months on




1   Further undesignated statutory references are to the Penal Code.

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        Count III. Additional eight months on Count IV. The total aggregate term
        is four years, eight months.
        “[DEFENSE COUNSEL]: Oh. Well, I didn’t realize you were going to do
        that.”
        Counsel then renewed his request for a supplemental report, and the court denied
it. The court soon after corrected a sentencing error, reducing the aggregate sentence to
three years, after defendant pointed out that counts III and IV were misdemeanors.
                                        DISCUSSION
        On appeal, defendant contends the trial court erred in refusing to order a
supplemental probation report before imposing sentence. The People concede the error,
and we agree.
        The trial court must order a probation report before judgment is pronounced “if a
person is convicted of a felony and is eligible for probation . . . .” (§ 1203, subd. (b)(1);
Cal. Rules of Court, rule 4.411.)2 “Waivers of the presentence report should not be
accepted except in unusual circumstances.” (Rule 4.411(a).) “However, if the defendant
is ultimately sentenced and committed to the state prison, a probation report shall be
completed pursuant to Section 1203c.” (§ 1203, subd. (b)(4).)
        If a sentencing proceeding occurs “a significant period of time” after the original
report was prepared, the court must order a supplemental probation report. (Rule
4.411(c).)
        Eight months was “a significant period of time” in People v. Dobbins (2005)
127 Cal.App.4th 176, at page 181, a case both parties cite. There, two months after a
probation report was prepared, Dobbins was arrested and charged with new offenses. (Id.
at p. 178.) Six months after that, (and following a mistrial) the court found Dobbins had




2   Further rule references are to the California Rules of Court.

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committed the new offenses and violated probation. (Id. at p. 179.) When Dobbins was
resentenced, a supplemental report was not ordered--though the court reviewed and
considered the original report. (Ibid.) On appeal, this court held the eight months
between the original report and resentencing was a significant period necessitating a
supplemental report: “This period was well in excess of the six months referred to by the
Advisory Committee [in their comments to rule 4.411], and it included approximately
two months when defendant was not under the watchful eyes of custodial authorities but
was rather released on probation . . . .” (Id. at p. 181.)
       But the failure to order a supplemental report was harmless under People v.
Watson (1956) 46 Cal.2d 818. (People v. Dobbins, supra, 127 Cal.App.4th at p. 182.)
The original probation report provided Dobbins’ background and other relevant
information. (Id. at p. 183.) Dobbins had numerous parole violations and incarcerations,
such that further probation had little justification. (Ibid.) The judge who resentenced
Dobbins also presided over his trial and was well aware of the facts underlying the
probation violation. (Ibid.) Thus, it was not reasonably probable that a supplemental
report would have changed the outcome. (Ibid.)
       Here, by contrast, no probation report was ever prepared. Twenty months had
elapsed from the original sentencing. And the judge who imposed sentence here did not
have the benefit of observing a full trial involving the facts underlying the probation
violation. Defendant urges that a supplemental report would have allowed the trial court
to learn more of his background--including considerations stemming from his
homelessness and illiteracy--and other mitigating factors. Thus, he concludes, there was
a reasonable probability of a more favorable outcome. The People agree and ask that we
remand to allow a report to be prepared. Based on our review of the record, we agree.3

3  While the parties did not raise the issue, we note that the colloquy between the defense
attorney and court set forth ante does not constitute a waiver of the right to receive a
probation report. (See § 1203, subd. (b)(4) [“The preparation of the report . . . may be

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                                     DISPOSITION
       The sentence is reversed and the matter is remanded with directions to order a
probation report or to obtain a valid waiver, and hold a new sentencing hearing. In all
other respects, the judgment is affirmed.




                                                       /s/
                                                 Duarte, J.



We concur:



      /s/
Blease, Acting P. J.




     /s/
Hoch, J.




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. However, if the defendant is ultimately sentenced and committed to the state
prison, a probation report shall be completed . . .”].)

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