Filed 9/29/15 P. v. Guzman CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B260771

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA378549)
         v.

CARLOS GUZMAN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael D. Carter, Judge. Affirmed.
         Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and
Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
                                             _________________________
                                 INTRODUCTION
       We reversed defendant and appellant Carlos Guzman’s 2012 conviction of first
degree murder and remanded for either a retrial or a reduction of his sentence to second
degree murder. In 2014, Guzman’s sentence was reduced, and he was resentenced,
without the benefit of a supplemental probation report. In this appeal, Guzman contends
that the trial court’s failure to order a supplemental probation report entitles him to
another sentencing hearing. We disagree and affirm the judgment.
                                     BACKGROUND1
       A jury found Guzman guilty of first degree murder (Pen. Code, § 187, subd. (a))2
and found true a gang allegation (§ 186.22, subd. (b)(1)(C)). Based on a prior serious
felony constituting a strike under the “Three Strikes” law, which Guzman admitted, the
trial court, after denying a Romero motion,3 sentenced him to 25 years to life, doubled to
50 years to life, on November 30, 2012. At the sentencing hearing, the trial court had
available to it a probation report, prepared May 26, 2011.
       Guzman appealed. In our opinion filed on June 19, 2014,4 we concluded that the
jury had been erroneously instructed on aiding and abetting and the natural and probable
consequences doctrine. (See generally People v. Chiu (2014) 59 Cal.4th 155.) We
therefore reversed in part and remanded with the direction that the People could either
elect to retry Guzman solely on the premeditation and deliberation element of murder or
accept a reduction of his sentence to second degree murder, in which case he was to be
resentenced.
       On October 30, 2014, the People accepted a reduction of Guzman’s conviction to
second degree murder. The court resentenced him to 15 years to life, doubled to 30 years

1
       Because of the limited issue on appeal, we briefly state the underlying facts.
2
       All undesignated statutory references are to the Penal Code.
3
       People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4
       People v. Guzman (Jun. 19, 2014, B245452 [nonpub. opn.]). We take judicial
notice of that opinion.


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to life. The court stated it would not change its prior ruling on the Romero motion: “The
court believes that all of the factors that were considered by the court with regard to the
Romero motion still – and the reasoning still stand and, therefore, the court will not
reduce that.”
                                       DISCUSSION
       Guzman contends that the trial court’s failure to order a supplemental probation
report before resentencing him requires a remand for another sentencing hearing. We
disagree.
       California Rules of Court, rule 4.411(c), provides: “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
subdivision is “based on case law that generally requires a supplemental report if the
defendant is to be resentenced a significant time after the original sentencing, as, for
example after a remand by an appellate court . . . .” (Advisory Com. com., Deering’s
Ann. Codes, Rules (2014 ed.) foll. rule 4.411(c), p. 576.) Case law recognizes that a
probation report is not necessarily required if the defendant is statutorily ineligible for
probation. (People v. Franco (2014) 232 Cal.App.4th 831, 834; People v. Murray (2012)
203 Cal.App.4th 277, 289, disapproved on another ground by People v. Gutierrez (2014)
58 Cal.4th 1354, 1370; People v. Dobbins (2005) 127 Cal.App.4th 176, 180; People v.
Johnson (1999) 70 Cal.App.4th 1429, 1432; People v. Bullock (1994) 26 Cal.App.4th
985, 989.) If a defendant is ineligible for probation, referral to the probation department
is discretionary, except where the amount of restitution must be determined. (Franco, at
p. 834; § 1203, subd. (g) [where a defendant is ineligible for probation, trial court has
discretion to direct probation officer to investigate facts relevant to sentencing].) Error in
failing to obtain a required supplemental probation report is reviewed under the standard
in People v. Watson (1956) 46 Cal.2d 818. (Dobbins, at p. 182.)
       Here, defendant was ineligible for probation, because he was convicted of murder
and he had a prior felony. (§ 1203, subd. (e)(5); see People v. Dobbins, supra,



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127 Cal.App.4th at p. 180.) Whether to order a supplemental probation report, therefore,
was discretionary.
       We discern neither an abuse of discretion on the part of the trial court nor any
ineffectiveness on the part of trial counsel in failing to request a supplemental report.
“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is
a reasonable probability that, but for counsel’s failings, the result would have been more
favorable to the defendant. [Citation.] ‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Scott (1997)
15 Cal.4th 1188, 1211-1212; see also Strickland v. Washington (1984) 466 U.S. 668, 694;
People v. Homick (2012) 55 Cal.4th 816, 893, fn. 44.) If the defendant makes an
insufficient showing on either component, the claim fails. (Homick, at p. 893, fn. 44.)
We defer to “ ‘ “counsel’s reasonable tactical decisions in examining a claim of
ineffective assistance of counsel [citation], and there is a ‘strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’ ”
[Citation.]’ ” (People v. Hinton (2006) 37 Cal.4th 839, 876; see also People v. Carter
(2003) 30 Cal.4th 1166, 1211.)
       It is unclear how information in a supplemental probation report would have
impacted defendant’s sentence. If there was information relevant to sentencing, defense
counsel presumably would have raised it, especially since the court made a finding that
the factors it considered in previously denying Guzman’s Romero motion “still stand.”
Nothing in the record shows that the information before the trial court was incomplete or
inaccurate. (See, e.g., People v. Bullock, supra, 26 Cal.App.4th at p. 990.) Moreover, the
same judge who presided over Guzman’s trial also resentenced him after remand, and
therefore the sentencing judge was intimately familiar with the case.
       Guzman, however, argues that the trial court was required to request a
supplemental probation report so that it could properly exercise its discretion on the
Romero motion. We are unpersuaded. In ruling on a Romero motion, the court must

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consider whether, in light of the nature and circumstances of the defendant’s present
felonies and prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies. (People v. Williams
(1998) 17 Cal.4th 148, 161.) “[A] trial court’s refusal or failure to dismiss or strike a
prior conviction allegation under section 1385 is subject to review for abuse of
discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375.)
       In reconsidering whether to strike Guzman’s strike, the trial court expressly found
that “all of the factors that were [previously] considered” “still stand.” As stated at the
first sentencing hearing in 2012, the court found that defendant was not a minor
participant in the events. Rather, he drove the car the perpetrators were in; he turned the
car around and drove them to the victim; he provided the murder weapon, a bat, to the
perpetrators; he encouraged the perpetrators to hurry as they beat the victim; and he drove
the perpetrators from the crime scene. The court also found that Guzman’s prior offense
of assault on a peace officer was serious, involving defendant’s driving toward the officer
and then fleeing at a high speed, precipitating the need for a dangerous pursuit. The court
also noted that Guzman’s criminal history, juvenile and adult, was “increasing in severity
at an alarming rate.” It is unclear what a supplemental probation report would have
added to the court’s consideration of these factors.




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                                    DISPOSITION
      The judgment is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                       ALDRICH, J.




We concur:




             EDMON, P. J.




             JONES, J.





        Judge of the Los Angeles Superior Court, assigned by Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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