P. v. Johnson

Filed 1/21/10 P. v. Johnson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Rod Pacheco, District Attorney, and Kelli Catlett, Deputy District Attorney, for Plaintiff and Appellant.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Respondent.

Defendant and respondent Raymond James Johnson pled guilty to being involved in a hit and run accident. (Veh. Code,  20001, subd. (a).) He also admitted the allegation that the victim died as a result of the accident. (Veh. Code,  20001, subd. (b)(2).) The court suspended imposition of sentence and placed defendant on probation for three years, under certain conditions, including spending 180 days in jail.

The People appeal, contending that: 1) the trial court engaged in illegal plea bargaining; and 2) the court erred in failing to order a probation report. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The following brief account of the facts is taken from the preliminary hearing transcript. The victim was riding in his wheelchair on the roadway when he was struck by a car. A witness observed a car hit the victims wheelchair and stop. The witness told the driver of the car to call 911, but the driver did not have a cell phone. The driver left to find a telephone and never returned. The witness provided the police with a description of the car and a partial license plate number. The police located the car nearby at defendants residence.

On May 7, 2009, defendant was charged by amended information with a violation of Vehicle Code section 20001, subdivision (a). The information also alleged that the accident resulted in the death of the victim.

On May 8, 2009, all parties were present in court. The parties had an earlier in-chambers discussion where the court indicated that if defendant pled guilty, the sentence would be 180 days, but if the matter went to trial, the sentence would be in the range of 180 days to three years. In open court, the court reviewed the felony plea form that defendant had signed and announced that it intended to place defendant on probation for three years. Defendant pled guilty and admitted that the victim died as a result of the accident. Defendant waived his right to a probation report, and the court instructed him to return later that afternoon for sentencing. The People objected to the plea to the court. The parties returned after a recess. The court suspended the imposition of the sentence for three years and placed defendant on formal probation under certain conditions, including 180 days in county jail.

ANALYSIS

I. The Court Did Not Engage in Illegal Plea Bargaining

The People argue the court engaged in illegal plea bargaining when it offered defendant a reduced sentence in exchange for his guilty plea. We conclude that the court did not participate in an illegal plea bargain, but rather, gave an indicated sentence.

The process of plea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People and the defendant and approved by the court. [Citations.] Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. [Citation.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment ([Pen. Code^[1]]  1192.5), by the Peoples acceptance of a plea to a lesser offense than that charged, either in degree ( 1192.1, 1192.2) or kind [citation], or by the prosecutors dismissal of one or more counts of a multi-count indictment or information. (People v. Orin (1975) 13 Cal.3d 937, 942, italics added.)

In contrast, [i]n an indicated sentence, a defendant admits all charges, including any special allegations and the trial court informs the defendant what sentence will be imposed. No bargaining is involved because no charges are reduced. [Citations.] (People v. Allan (1996) 49 Cal.App.4th 1507, 1516.)

In sum, under a plea bargain, the defendant may bargain with the People to be permitted to plead to a lesser charge and such a bargain requires the approval of the court. [Citations.] However, where the defendant pleads guilty to all charges, all that remains is the pronouncement of judgment and sentencing; there is no requirement that the People consent to a guilty plea. [Citations.] In that situation, the trial court may give an indicated sentence which falls within the boundaries of the courts inherent sentencing powers. [Citation.] (People v. Vessell (1995) 36 Cal.App.4th 285, 296.)

Here, the record shows that the court announced an indicated sentence, affording some leniency by granting probation. The prosecutor opposed the plea, and the court acknowledged the objection. Defendant then pled guilty to the charged offense and the related enhancement before the court placed him on probation. There was no bargaining involved because no charges were reduced. Thus, the prosecutors consent was unnecessary. (People v. Allan, supra, 49 Cal.App.4th at p. 1516.) The courts actions were lawful.

II. The Courts Errorin Failing to Order a Probation Report Was Harmless

The People contend the court erred in failing to order a probation report before placing defendant on probation, and that the failure to order a probation report is reversible error. We conclude the error was harmless.

Section 1203, subdivision (b)(1) provides that if a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment. The preparation of the report or the consideration of the report by the court may be 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 there shall be no waiver unless the court consents thereto. ( 1203, subd. (b)(4).)

Here, the record reflects that there was no probation report prepared by a probation officer. Right after the court took defendants guilty plea, it addressed defendant and said: And you want to be sentencedyou are waiving your right to a probation report and well do sentencing at 1:30 this afternoon. Defendant agreed. Thus, there was an oral stipulation by defendant to waive the probation report. However, there was no apparent stipulation by the prosecutor. It appears the court did err in failing to order a probation report.

Citing People v. Llamas (1998) 67 Cal.App.4th 35 (Llamas) and People v. Johnson (1999) 70 Cal.App.4th 1429 [Fourth Dist., Div. Two] (Johnson), defendant argues the People waived their right to complain about the absence of a probation report for failure to object below. However, section 1203, subdivision (b)(4) expressly states that the preparation of a probation report may be waived only by a written stipulation . . . or an oral stipulation in open court. (Italics added.) Moreover, Llamas and Johnson were cases in which the defendant was statutorily ineligible for probation, so no probation report was mandated. (People v. Dobbins (2005) 127 Cal.App.4th 176, 182.) Thus, section 1203, subdivision (b)(4) did not apply since the stipulation requirement was predicated on section 1203, subdivision (b)(1), which refers to a person . . . eligible for probation. (Llamas, supra, at p. 39; Johnson, supra, at p. 1432.) Since the section 1203, subdivision (b)(4) stipulation requirement was inapplicable, the courts in Llamas and Johnson held that the defendants could waive their rights to object to the absence of supplemental probation reports by failing to do so in the trial court. (Llamas, supra, at p. 39; Johnson, supra, at p. 1433.)

In the instant case, it is undisputed that defendant was eligible for probation. Thus, section 1203, subdivision (b)(4) applied, meaning that the preparation of a probation report could only be waived by stipulation by both parties. Since there was no written stipulation of waiver, and no apparent oral stipulation by the prosecution in court, the People did not waive a probation report.

However, we disagree with the Peoples assertion that reversal is automatic. There is no apparent federal constitutional right to a probation report. (People v. Dobbins, supra, 127 Cal.App.4th at p. 182.) Because the alleged error only implicates California statutory law, review is governed by the Watson harmless error standard. (Ibid.; People v. Watson (1956) 46 Cal.2d 818, 834-836.) The People are asking for the matter to be remanded for resentencing, after the court receives a probation report. Defendant pled guilty to the charge. Before placing defendant on probation, the court acknowledged the tragic circumstances of the case and said that it had discussed the possible penalties with counsel. The court then stated: The way I look at it is, What will I do after I get the probation report at the end of the trial? Given the courts position at sentencing, we conclude it is not reasonably probable that the result would have been any different had a probation report been produced. We note that the People have offered nothing to show that the court abused its discretion in granting probation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

GAUT

J.

KING

J.

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^[1] All future statutory references will be to the Penal Code unless otherwise noted.