Filed 1/8/16 P. v. Jackson 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yuba)
                                                            ----




THE PEOPLE,                                                                                  C078294

                   Plaintiff and Respondent,                                     (Super. Ct. No. CRF14098)

         v.

LUKE MATTHEW JACKSON, JR.

                   Defendant and Appellant.




         Defendant Luke Matthew Jackson, Jr., admitted violating the terms of his
mandatory supervision in exchange for the People dismissing a pending charge and
referring the matter to the Yuba County Probation Department for a recommendation on
sentencing. Despite an initial indication from the trial court that it would follow
probation’s recommendation of reinstatement of supervision, the trial court ultimately
revoked supervision and imposed defendant’s previously suspended jail sentence of
1,260 days.


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       Defendant appeals, arguing that the trial court’s indication that it would follow
probation’s recommendation was a term of the plea agreement and the subsequent breach
of that term entitles him to specific performance of the agreement on appeal. Defendant
also contends the trial court erred in revoking his mandatory supervision without
obtaining a written supplemental probation report. Lastly, defendant argues the court’s
decision to revoke his mandatory supervision amounted to an abuse of discretion.
Finding no merit in these arguments, we affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On May 7, 2014, defendant pled no contest to transportation of methamphetamine
and admitted a prior drug crime conviction in exchange for the dismissal of his remaining
charge with a Harvey1 waiver. The trial court imposed a split sentence of four years,
with defendant serving 180 days in jail and the balance on mandatory supervision. Under
the terms of his mandatory supervision, defendant was required to obey all laws;
participate in, and successfully complete, a treatment and educational program; submit to
drug testing as required by his probation officer; and abstain from using controlled
substances.
       On November 10, 2014, the probation officer filed a petition seeking the
revocation of defendant’s mandatory supervision. The petition alleged defendant
committed six violations of the terms of his supervision: testing positive for marijuana
on August 28, 2014; testing positive for amphetamines and opiates on September 11,
2014; failing to report for drug testing on five occasions; being terminated from the
probation department’s day reporting center for excessive unexcused absences; and
transportation and possession of marijuana on November 2, 2014.




1      People v. Harvey (1979) 25 Cal.3d 754.

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       Defendant was arraigned on the petition and initially denied the allegations.
Shortly thereafter, on December 10, 2014, defendant admitted the violations outlined in
the probation officer’s petition in exchange for a dismissal of the possession of marijuana
charge and under the condition the matter would be referred back to his probation officer,
who had already indicated he would recommend the court reinstate defendant’s
mandatory supervision . The trial court approved the agreement, indicated it would
follow the probation officer’s recommendation, and referred the matter to the probation
officer for a report on judgment and sentencing.
       When the court and the parties reconvened on January 5, 2015, the probation
officer informed the court that due to a calendaring error, he had not filed a written
supplemental report for sentencing. The trial court was satisfied with the probation
officer providing an oral recommendation, but requested a one paragraph document be
submitted formalizing the recommendation. On January 6, 2015, probation submitted a
one-page document indicating its recommendation that defendant be reinstated on
mandatory supervision, and the probation officer later orally confirmed this
recommendation on two occasions.
       At the sentencing hearing on January 20, 2015, the trial court stated that it would
not follow the probation officer’s recommendation as initially suggested because upon
reviewing the police report from the dismissed marijuana possession and transportation
offense, the court deemed defendant unsusceptible to supervision. The trial court thus
sentenced defendant to serve the remainder of his 1,260-day jail sentence. This timely
appeal followed.




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                                       DISCUSSION
                                               I
       Defendant Is Not Entitled To Specific Performance Of The Plea Agreement
       Defendant argues the trial court’s failure to reinstate him on mandatory
supervision constituted a breach of his plea agreement and entitles him to specific
performance of the agreement on appeal. We disagree.
       We will assume, without deciding, that defendant is correct in asserting the trial
court’s statement that it would “go along with” the probation officer’s recommendation
for reinstatement of supervision was indeed a term of the plea agreement that was
therefore breached when the trial court imposed a jail sentence. We cannot conclude,
however, the trial court’s failure to sentence in accordance with that presumed term of the
agreement warrants the only remedy defendant seeks, which is specific performance.
       Citing People v. Kaanehe (1977) 19 Cal.3d 10, 13, defendant argues that “[w]hen
the breach [of a plea agreement] is a refusal by the court to sentence in accord with the
agreed upon recommendation, specific enforcement would entail an order directing the
judge to resentence the defendant in accord with the agreement.” Defendant’s reliance on
this statement is misplaced because he has taken the statement out of context. In making
this statement, the court was not stating that specific performance is generally available
as a remedy when a trial court refuses to sentence in accordance with an agreed upon
recommendation. Instead, the court was only explaining what the remedy of specific
enforcement would entail if it were available in that context. The Kaanehe court
explained that the rule is actually contrary to what defendant suggests it is -- specifically,
“a defendant should not be entitled to enforce an agreement between himself and the
prosecutor calling for a particular disposition against the trial court absent very special
circumstances,” and “[t]he preferred remedy in that context is to permit a defendant to
withdraw his plea and to restore the proceedings to the original status quo.” (Id. at pp.


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13-14.) The court explained that “[s]pecific enforcement of a particular agreed upon
disposition must be strictly limited because it is not intended that a defendant and
prosecutor be able to bind a trial court which is required to weigh the presentence report
and exercise its customary sentencing discretion.” (Id. at p. 14.)
       Here, ordering specific performance of the supposed plea agreement would
prevent the trial court from exercising its customary sentencing discretion by forcing the
court to impose mandatory supervision after the court determined that disposition was
inappropriate given the court’s review of the police report from defendant’s dismissed
possession and transportation of marijuana charge. Defendant has not articulated or
attempted to establish any special circumstances that might support specific enforcement
of the agreement, and we do not find any such circumstances from the record.
Accordingly, the only relief defendant has requested is not available to him.
                                             II
          The Trial Court’s Revocation Of Defendant’s Mandatory Supervision
      Without Obtaining A Written Supplemental Probation Report Was Harmless
       Defendant contends the trial court erred by sentencing him without obtaining a
written supplemental report from the probation officer. The People argue defendant
forfeited his right to complain on appeal about the lack of a written supplemental
probation report by failing to the address the issue at the time of sentencing. We
conclude defendant has not forfeited his argument, but any error was harmless.
                                             A
                    Defendant Did Not Forfeit His Right To Challenge
                  The Lack Of A Written Supplemental Probation Report
       The People contend defendant’s “failure to object and failure to accept the court’s
offer of more time to obtain a written supplemental report” forfeits defendant’s claim on
appeal. We disagree.


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       “The preparation of [a probation] report or the consideration of the report by the
court may be waived only by a written stipulation of the prosecuting and defense
attorneys . . . or [by] an oral stipulation in open court that is made and entered upon the
minutes of the court.” (Pen. Code, § 1203, subd. (b)(4).) “To apply the forfeiture
doctrine in this context would result in an effective waiver of a probation report in a
manner not countenanced by [Penal Code] section 1203, subdivision (b)(4).” (People v.
Dobbins (2005) 127 Cal.App.4th 176, 182.) Finding no written or oral stipulation
waiving the report in the record, we conclude defendant did not waive his right to a
written supplemental probation report at the time of sentencing, nor has he forfeited his
right to bring his claim on appeal.
                                              B
                     Any Error In The Trial Court’s Failure To Obtain
                 A Written Supplemental Probation Report Was Harmless
       Under California 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.” The Advisory
Committee comment to the rule provides as follows: “If a full report was prepared in
another case . . . within the preceding six months, during which time the defendant was in
custody, and that report is available to the Department of Corrections and Rehabilitation,
it is unlikely that a new investigation is needed.” (Advisory Com. com., West’s Cal.
Rules of Court, foll. rule 4.411(c).)
       Relying on Dobbins, defendant argues the six-month and three-week period of
time between his original probation report and his subsequent sentencing proceeding
constituted a significant period of time within rule 4.411(c), and thus a supplemental
report should have been prepared and reviewed. In Dobbins, we held the trial court erred
in imposing defendant’s sentence without obtaining a supplemental report when the


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original report was submitted eight months prior. (People v. Dobbins, supra, 127
Cal.App.4th at p. 181.) We explained as follows: “[t]his period was well in excess of the
six months referred to by the Advisory Committee, and it included approximately two
months when [the] defendant was not under the watchful eyes of custodial authorities but
was rather released on probation.” (Ibid.)
       We then analyzed the trial court’s error under the Watson2 harmless error standard
and concluded there was no reasonable probability of a result more favorable to
defendant had the error not occurred. (People v. Dobbins, supra, 127 Cal.App.4th at
pp. 182-183.) In supporting this conclusion, we stated as follows: “The original
probation report apprised the trial court of defendant’s background and other relevant
information. And his record was such (including as it did numerous violations and
periods of incarceration) that there was little justification for a further grant of probation.
Moreover, the trial court was aware . . . that defendant’s conduct while on probation had
been poor. The judge who sentenced defendant was the same judge who presided over
the trial and was thus intimately acquainted with the facts underlying his violation of
probation, which involved use of a weapon. Considering these circumstances, there is no
reason to believe that additional information would have led to reinstatement of
probation.” (Id. at. p. 183.)
       Here, the original probation report was filed more than six months prior to
defendant’s sentencing hearing following his probation violations. We need not decide
whether this period of time amounted to a “significant period of time” within the meaning
of rule 4.411(c) because we conclude any error in not obtaining a supplemental report
was harmless. As in Dobbins, the judge presiding over defendant’s sentencing was
“intimately acquainted” with defendant’s case given that she presided over his initial



2      People v. Watson (1956) 46 Cal.2d 818.

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sentencing on the transportation of methamphetamine charge and read the police report
describing his probation violation for possessing and transporting marijuana. (People v.
Dobbins, supra, 127 Cal.App.4th at p. 183) Additionally, the original probation report
read by the court detailed defendant’s extensive criminal record and provided other
relevant background information about defendant. Lastly, the trial court was aware of his
poor behavior while on probation considering that the probation officer’s petition stated
numerous violations of his supervision, all of which defendant admitted, and the original
probation report detailed his prior probation and parole violations. From these facts, we
cannot conclude there is a reasonable probability defendant would have been reinstated
on mandatory supervision had the probation officer filed a written supplemental report.
                                             III
          The Trial Court Did Not Abuse Its Discretion When It Imposed A Jail
          Sentence Instead Of Reinstating Defendant’s Mandatory Supervision
       Defendant contends the trial court abused its discretion by revoking his mandatory
supervision against the recommendation of his probation officer. We disagree.
       “ ‘A denial or a grant of probation generally rests within the broad discretion of
the trial court and will not be disturbed on appeal except on a showing that the court
exercised its discretion in an arbitrary or capricious manner.’ [Citation.] A court abuses
its discretion ‘whenever the court exceeds the bounds of reason, all of the circumstances
being considered.’ [Citation.] We will not interfere with the trial court’s exercise of
discretion ‘when it has considered all facts bearing on the offense and the defendant to be
sentenced.’ ” (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)
       Defendant fails to articulate any facts showing how the trial court’s refusal to
follow the probation officer’s recommendation constituted an abuse of discretion. Upon
reviewing the record, we conclude the trial court considered a multitude of information
upon which it could reasonably find defendant unsuitable for further supervision. The


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trial court read and reviewed the original probation report, which detailed defendant’s 22
years of criminal history including five felonies and many misdemeanors. The trial court
was additionally apprised of defendant’s record for poor behavior while on supervision
and heard arguments for and against his reinstatement by the People, defense counsel,
and the probation officer.
       Notwithstanding this information, the trial court stated it initially “viewed the
[d]efendant favorably,” but upon reading the police report stemming from defendant’s
dismissed possession and transportation of marijuana charge, the court found defendant
unsuitable for probation. The trial court noted “there’s no point” to reinstating defendant
on probation given his evasive behavior with the police officers and considered further
supervision a “wast[e] [of] everybody’s time.” Given the trial court’s broad latitude in
sentencing determinations and defendant’s continuous inability to reform his behavior to
that of a law-abiding citizen, we cannot conclude the trial court’s decision to reinstate
defendant’s jail sentence in lieu of further mandatory supervision was so “ ‘arbitrary or
capricious’ ” as to amount to an abuse of discretion. (People v. Downey, supra, 82
Cal.App.4th at p. 909.)
                                      DISPOSITION
       The judgment is affirmed.


                                                  /s/
                                                  Robie, J.
We concur:


/s/
Nicholson, Acting P. J.


/s/
Mauro, J.


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