Filed 7/21/17 P. v. Palacios CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

HENRY L. PALACIOS,

Defendant and Appellant.
D071089



(Super. Ct. No. SCN345130)

APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed.
Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman-Fraser and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
This is an appeal from the sentence imposed after the court revoked probation. Appellant Henry L. Palacios contends the court erred in imposing sentence without first obtaining an updated probation report, even though his counsel agreed to immediate sentencing and did not object to the absence of an updated report. The People contend the trial court was obligated to obtain a new report, but that the failure to do so was harmless. We are satisfied any error that may have occurred is harmless on this record. Accordingly, we will affirm.
FACTS AND PROCEDURAL BACKGROUND
In June 2015, Palacios pleaded guilty to one count of felony disobedience of a court order involving domestic violence (Pen. Code, § 273.6, subd. (a)), and admitted the allegation of a prior conviction. (§ 273.6, subd. (d).) The remaining counts were dismissed.
The probation officer filed a report on July 9, 2015. The court placed Palacios on probation for three years subject to 150 days in custody with credit for 85 days served. The court also issued a protective order restraining Palacios from contact with the victim. The trailing misdemeanor probation revocation cases were terminated but maintained the protective order restraining Palacios from contact with his father.
In September 2016, appellant's probation was revoked for violation of the protective orders. Defense counsel agreed to immediate sentencing. Probation was revoked and the court imposed, but stayed the execution of a two-year prison sentence. The court reinstated probation subject to 365 days in jail, with credit for 152 days served.
The current revocation of probation was based on testimony that Escondido Police were summoned to appellant's father's home. Officers found Palacios in the back bedroom with the victim named in the original protective order.
Palacios testified he did not know his father was at the house until he arrived. He said the woman in the bedroom was not the named victim, but was a girl named Brenda.
DISCUSSION
Palacios argues, and the People agree that section 1203.2, subdivision (b), required the court to seek a supplemental probation report before sentencing after probation revocation. Where there has been a significant passage of time between the original sentencing and the later sentencing after probation revocation, the case must be referred to the probation officer for a new written report. (People v. Dobbins (2005) 127 Cal.App.4th 176, 180 (Dobbins); Cal. Rules of Court, rule 4.411(c).)
In the Dobbins case, the court held that an eight-month time lapse from the original sentencing to the revocation required a new report. The court held, however, the omission was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)). (Dobbins, supra, 127 Cal.App.4th at p. 182.)
Although there was no objection by the defense to immediate sentencing, or any suggestion of new information that might be available, we will assume the court erred, given the People's concession. We will turn next to the issue of prejudice.
Approximately 14 months had passed since the original probation report was filed, however, we do not find the lapse of time significant here. The court was well aware of appellant's history of domestic violence and his repeated violation of restraining orders. The probation report reflects numerous probation revocations in the preceding years for violations of restraining orders. The record of appellant's dismal history of ignoring restraining orders and continuing domestic violence was well documented. The current conduct leading to this revocation was simply a continuation of domestic violence, unabated by grants of probation, restraining orders and revocations of probation.
Applying the Watson standard (Watson, supra, 46 Cal.2d 818, 836), we must determine if there is a reasonable likelihood that a different result would have happened in the absence of the error. In this case, we must determine if there is a reasonable likelihood that new, mitigating information might have been available in a supplemental probation report. There is nothing in this record that hints, let alone establishes, the existence of new, mitigating data.
First, defense counsel had no objection to immediate sentencing. Further, counsel sought to minimize the current violation by relying on appellant's testimony that he did not knowingly violate the protective order. Unfortunately for appellant, the trial court found him not credible in his explanations of the events. The court focused on appellant's continuing history of ignoring restraining orders, failing to appear in court and essentially ignoring the rules. The court noted there had been at least seven probation revocations involving the same issues before this case. Even with the trial court's concerns about appellant's continuing domestic violence issues, the court still placed appellant on probation. The court did impose, but stayed execution of a two-year (middle term) prison sentence, with the hope it might persuade appellant to comply with the protective orders.
Appellant speculates there might be something that could have been discovered by the probation officer that would be so compelling the trial court would find it would mitigate against punishment for appellant's almost perpetual violation of conditions of probation. Appellant was present at the sentencing, represented by counsel. Appellant spoke directly to the court insisting he was "not guilty." However, neither appellant, or his counsel advised the court of any effort by appellant to conform his behavior to avoid domestic violence. Indeed, the court specifically found appellant's rendition of the current violation not credible.
We are satisfied from our review of this record there is no likelihood that a different result would have occurred if the court had ordered a new probation report. Accordingly, we find any error in that regard to be harmless.
DISPOSITION
The judgment is affirmed.


HUFFMAN, Acting P. J.

WE CONCUR:



AARON, J.



IRION, J.