P.v. Jones
Filed 6/28/12 P.v. Jones 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
VALEN ANDREW JONES,
Defendant and Appellant.
E053201
(Super.Ct.No. RIF144277)
OPINION
APPEAL from the Superior
Court of
County. Mac R. Fisher,
Judge. Affirmed.
Barbara A. Smith, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Senior Assistant Attorney General, and Lilia E. Garcia and Lynne G. McGinnis,
Deputy Attorneys General, for Plaintiff and Respondent.
In January and February 2007, there was a series
of robberies of stores in the Riverside-San Bernardino area. Each robbery was committed by three African-American
men. Their faces were covered; two wore
bandannas, and the third generally wore a distinctive “Scream” mask. Thus, even though there was security video
footage of each robbery, the men’s identities could not be determined from the
videos alone.
After the last such
a police pursuit. Two of the robbers
were captured; the third robber escaped, but further investigation revealed
that he was defendant Valen Andrew Jones.
Ultimately, defendant pleaded guilty to the February 13 robbery. His cohorts pleaded guilty to that and to
five earlier robberies.
In this case, defendant was charged with 11
counts of robbery (Pen. Code, § 211) and 10 counts of
§ 236), all arising out of the first five robberies. The prosecution introduced evidence of the
sixth and final robbery, to which defendant had already pleaded guilty, as
evidence of identity.
The jury hung on all counts relating to one of
the charged robberies; it found defendant guilty on all counts relating to the
remainder (a total of nine counts of robbery and three counts of forcible false
imprisonment). In connection with each
count, the jury found that a principal was armed with a firearm. (Pen. Code, § 12022, subd. (a)(1).)
Defendant was sentenced to 17 years 8 months,
plus the usual fines and fees.
Defendant now contends that the trial court erred
by:
1. Denying
defendant’s motion to strike evidence of the final robbery.
2. Finding
that defendant was presumptively ineligible for probation.
3.
Sentencing defendant based on a stale probation report.
We will hold that the trial court did not err by
admitting evidence of the final robbery.
Because the final robbery was similar, in many respects, to the charged
robberies, it was relevant and, indeed, crucial evidence of defendant’s
identity as one of the participants in the charged robberies.
We will also hold that the trial court did err by
finding that defendant was presumptively ineligible for probation and by
failing to obtain a supplemental probation report but that these errors were
harmless. Hence, we will affirm.
I
FACTUAL BACKGROUND
Surveillance video of each robbery was played for
the jury. To the extent that the videos
contradict the witnesses’ recollections, we rely on the videos.
A chart summarizing the robbers’ attire in each
of the robberies is attached (Appendix A, post,
p. 26).
A. January 30:
On January
30, 2007, three African-American men robbed a Hollywood Video in Moreno
Valley.
They arrived around 11:30 p.m., about half an hour before closing
time. Two robbers came in, one right
behind the other; a few moments later, a third robber came in.
present. The robbers told everybody to
get down on the floor.
Robber One and Robber Two were wearing dark
fabric objects (described as handkerchiefs, T-shirts, or ski masks) over their
faces.
Robber One was wearing a dark hoodie and dark
jeans. He went behind the counter and
took money from the register.
Robber Two was wearing dark clothing and a white
baseball cap. He was armed with a
shotgun that resembled Exhibit 21. He
took a wallet from the customer.
Robber Three was wearing a light multicolored
hoodie and light pants. The witnesses
did not see his face, and the video does not show whether he was wearing a mask
or not.
The whole robbery was over in about 45 seconds.
B. February 7: Riverside
Blockbuster Video Robbery.
On February
7, 2007, three African-American men robbed a Blockbuster Video in Riverside.
They arrived shortly before closing time (though
witnesses disagreed as to when closing time was). Two robbers came in together; a third
followed.
Both Robber One and Robber Two were wearing
light-colored cloths or bandannas over their faces. Robber One was wearing a dark hoodie and dark
pants. Robber Two was wearing a dark
fur-lined hoodie and dark pants. He was
armed with a sawed-off shotgun just like Exhibit 21.
Robber Three was wearing a light multicolored
hoodie (indistinguishable from the one worn in the previous robbery) over a
white shirt and dark pants. Robber Three
was also wearing a “Scream” mask (as featured in the movie of the same
name). The mask had an outer layer of
clear plastic, and fake blood dripped down under this layer.
Two employees and four customers (including a
three-year-old child) were present. The
robbers made everyone get down on the floor.
All three robbers went behind the counter. They took money from the registers. One of them pulled out cash register drawers
and threw them on the floor. Robber
Three took a wallet from a customer.
One of the robbers told an employee to open the
safe, but the employee explained that he could not, because the safe was on a
10-minute delay. The robbers did not
demand any games or game consoles.
The video did not have a time stamp. However, assuming it played back in real
time, the whole robbery took about two minutes.
C. February 11: Riverside Circle K Robbery.
On February 11, 2007, three African-American men
robbed a Circle K in Riverside.
They arrived around 11:40 p.m. The first two robbers came in together; the
third came in more slowly behind them.
Two employees and one customer were present.
Robber One was wearing a dark hoodie and dark
jeans. His face was covered by a dark
printed bandanna. He jumped the counter
and took money from the registers.
However, he did not pull out any cash register drawers. The robbers asked an employee to open the
safe, but he said he could not.
Robber Two was wearing a dark hoodie and dark
jeans with bleached or faded areas over the front of the thighs. He had a light printed bandanna over his
face.
Robber Two was armed with a rifle that resembled
Exhibit 21. He made the customer get
down on the floor and took the customer’s wallet.
Robber Three was wearing a black hoodie over a
red shirt and light blue pants. He was
also wearing a red (or blood-dripping) Scream mask. He took the employees’ wallets. He also took some cigars and cartons of
cigarettes.
The whole robbery took about 45 seconds.
D. February 12: Moreno Valley GameStop Robbery.
On February 12, 2007, three African-American men
robbed a GameStop in Moreno Valley.
They arrived at about 8:50 p.m., “a few
minutes before closing.” Two of them
came in together; a third came in slightly later. Two of the robbers wore masks or bandannas; either
Robber One or Robber Three wore a Scream mask.
Robber One wore a dark hoodie and dark
pants. Robber Two wore a dark hoodie and
dark jeans with faded thighs. He was
armed with a short rifle, the same size and color as Exhibit 21. Robber Three was wearing the same light
multicolored hoodie as before, with light-colored pants.
Two employees were present. The only customer present was a young boy,
about 10 years old. The robbers
indicated, by gesturing, that he should leave, and he did.
Robbers One and Two went behind the counter. Robber One told an employee to lie on the
floor, then took money from the registers.
He did not take out the cash drawers.
The store had a safe, but the robbers did not ask anyone to open it.
The robbers demanded Xbox 360’s; an employee led
Robbers Two and Three to the stockroom, where the robbers took some Xbox 360’s.
The whole robbery took about 45 seconds.
E. February 13: Rialto GameStop Robbery.
On February 13, 2007, three African-American men
robbed a GameStop in Rialto. They
arrived a little after 8:00 p.m.
Two employees were present.
Robber One was wearing a dark hoodie, dark pants,
and a dark printed bandanna.
Robber Two was wearing a dark hoodie, dark jeans
with faded thighs, and a light-colored bandanna.
Robber Three was wearing the light multicolored
hoodie over a red shirt and light-colored pants. He was also wearing a blood-dripping Scream
mask.
Robber One jumped the counter and took money from
the registers. He also told an employee
to lock the front door.
Robber Two had a shotgun just like Exhibit
21. He told an employee to get on the
floor.
Two of the robbers made an employee unlock the
stockroom. They took some Xbox
360’s. They then shut the stockroom
door, leaving the employees inside. The
employees could hear the robbers arguing about whether they should have done
that. Then the robbers made the
employees open the door again and come out.
An employee unlocked the front door so the robbers could leave. The whole robbery took about three minutes.
After the robbers left, the employees called
911. A police officer spotted a Chrysler
Pacifica that seemed to match a description given in the 911 call. He pursued it. The Pacifica jumped a curb and hit a house. Three men got out and fled in different
directions.
The officer chased one man and arrested him. He turned out to be Delray Andrews. A black hoodie was found about 25 yards from
where Andrews was apprehended.
Another officer stopped an African-American man
nearby, because he was breathing heavily and wearing only a tank top on a cold
night. He turned out to be Samuel
Mahan. Mahan was wearing dark jeans with
faded thighs.
The driver escaped. However, he left his shoes at the scene of
the crash.
Inside the Pacifica, the police found a loaded
sawed-off shotgun (Exhibit 21), a blood-dripping Scream mask, a light
multicolored hoodie like the one Robber Three was wearing in most of the
videos, and several Xbox 360’s.
Sometime previously, defendant had crashed his
car. Accordingly, his mother had rented
a car for him — a Chrysler Pacifica.
On February 13, 2007, defendant called his mother
and told her he had been carjacked and the Pacifica had been stolen. She called 911. He then showed up at her house dirty and
shoeless. She asked him to wait and to
talk to the police, but he left.
The police were unable to locate defendant at his
home or through his family and friends.
About six months after the robberies, they found him at an apartment
complex in Rialto. He tried to escape out
a back window, but they apprehended and arrested him.
Before trial, defendant pleaded guilty to the
final robbery. Andrews and Mahan
eventually pleaded guilty to all six robberies.
Detective Richard Wheeler testified as an expert
on robberies. In his opinion, the same
three men committed all six robberies.
According to Detective Wheeler, robbers who work in a group avoid adding
or changing group members.
Detective Wheeler admitted that it is common for
robbers to strike a business near closing time, because the business is likely
to have more money and fewer customers.
He also admitted that it is not uncommon for robbers to wear masks or to
dress in black.
Two defense witnesses testified that, throughout
February 2007, defendant was recording music with them. They did this every day, “minus maybe a day
or two . . . .” They
typically finished sometime between 7:00 and 11:00 p.m. Sometimes defendant and one of the witnesses
would hang out together afterward. They
lost all the music because their computer got a virus, and the hard drive “was
wiped in the fixing process.” They turned
down an investigator’s offer to try to recover the data.
II
THE ADMISSION OF EVIDENCE OF
THE FINAL ROBBERY TO SHOW IDENTITY
Defendant contends that the trial court erred by
denying his motion to strike evidence of the final robbery.
A. Additional Factual and
Procedural Background.
In a trial brief, defense counsel objected to
evidence of the final robbery, arguing that it was not sufficiently similar to
the charged robberies to be admissible under Evidence Code section 1101. The trial court admitted the evidence to show
identity.
During the trial, defense counsel filed a written
motion to strike evidence of the final robbery “as lacking relevance and being
overly prejudicial and in violation of Evidence Code section 1101
. . . .” He argued that
the evidence actually presented by the People in their case in chief fell short
of showing sufficient similarity. After
hearing argument, the trial court denied the motion to strike.
B. Analysis.
“‘“Evidence that a defendant has committed crimes
other than those currently charged is not admissible to prove that the
defendant is a person of bad character or has a criminal disposition; but
evidence of uncharged crimes is admissible to prove, among other things, the
identity of the perpetrator of the charged crimes . . . . [Citation.]
Evidence of uncharged crimes is admissible to prove identity
. . . only if the charged and uncharged crimes are sufficiently similar
to support a rational inference of identity . . . . [Citation.]”
[Citation.]’ [Citation.]” (People
v. Thomas (2011) 52 Cal.4th 336, 354, fn. omitted.)
“‘For identity to be established, the uncharged
misconduct and the charged offense must share common features that are
sufficiently distinctive so as to support the inference that the same person
committed both acts. [Citation.] “The pattern and characteristics of the
crimes must be so unusual and distinctive as to be like a signature.”’ [Citation.]
The inference of identity, however, ‘need not depend on one or more
unique or nearly unique common features; features of substantial but lesser
distinctiveness may yield a distinctive combination when considered
together.’ [Citation.] Moreover, ‘the likelihood of a particular
group of geographically proximate crimes being unrelated diminishes as those
crimes are found to share more and more common characteristics.’ [Citation.]”
(People v. Lynch (2010) 50
Cal.4th 693, 736.)
“‘ . . . “There is an additional
requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense
evidence must be substantial and must not be largely outweighed by the
probability that its admission would create a serious danger of undue
prejudice, of confusing the issues, or of misleading the jury. [Citation.]
On appeal, a trial court’s resolution of these issues is reviewed for
abuse of discretion. [Citation.] A court abuses its discretion when its ruling
‘falls outside the bounds of reason.’
[Citation.]” [Citation.]’ [Citations.]”
(People v. Thomas,
fn. omitted.)
Defendant concedes that, on the record that was
before the trial court at the time, it did not err in denying his motion in
limine. He argues, however, that it
should have granted his subsequent motion to strike, because, based on the
record as it was actually developed at trial, the final robbery was not
sufficiently similar to the charged robberies.
Actually, the similarities were
overwhelming. All but one of the
robberies were of video or video game stores.
They were committed shortly before closing time. There was a team of three African-American
male robbers. Robber One (presumably
defendant) and Robber Two entered the store together; Robber Three entered
shortly thereafter. They ordered people
in the store to get down on the floor.
In both the February 12 robbery and the final robbery, they took Xboxes.
Robber One wore a dark hoodie, dark pants, and a
dark bandanna or similar cloth mask. He
went right to the cash registers and took money from them. In both the February 11 robbery and the final
robbery, he jumped over the counter.
Robber Two wore a dark hoodie and dark
pants. In the February 11 and 12
robberies, as well as in the final robbery, he wore jeans with faded
thighs. He wore a bandanna or similar
cloth mask, usually (including in the final robbery) light colored. Robber Two was the only robber who carried a
weapon. Some witnesses described it as a
shotgun and others as a rifle, but they all agreed that it resembled Exhibit
21.
Robber Three wore the light multicolored hoodie
in all but one robbery; likewise, he wore light pants in all but one
robbery. In both the February 11 robbery
and the final robbery, he wore a red shirt that stuck out under the hoodie. Most strikingly, in four out of the five
robberies, including the final robbery, he wore the blood-dripping Scream mask.
Last, but not least, Mahan and Andrews
robberies. Hence, we can be confident
that Mahan was always Robber Two, and Andrews was always Robber Three. From the fact that defendant was admittedly
Robber One in at least the final robbery, it is at least a “rational inference”
(People v. Thomas,
he was Robber One in all of the robberies.
Defendant argues that — as Detective Wheeler
admitted — it is not uncommon for robbers to wear masks or dark clothing or to
arrive at a business shortly before closing time. Defendant also argues that other robberies
have been known to involve Scream masks.
all three factors. This combination of
factors makes the robberies more distinctive than any single factor possibly
can. And there were additional similar
factors. For example, there may have
been other robberies involving Scream masks, but how many involved
Next, defendant argues that, even if there were
similarities with respect to Robber Two (Mahan) and Robber Three (Andrews),
there were not enough similarities with respect to Robber One to support the
inference that he was always defendant.
This is a red herring. The very
fact that the final robbery, involving Mahan and Andrews, also involved
defendant supports the inference that the series of similar charged robberies
that they also committed similarly involved defendant.
For example, in People v. Haston (1968) 69 Cal.2d 233, the defendant and one Donald
McDowell were charged with three separate robberies. (Id.
at pp. 237-238.) McDowell pleaded
guilty. (Id. at p. 238.)
Evidence was introduced that the defendant had committed two uncharged
robberies with McDowell. (
similarities between the charged and uncharged robberies were not sufficiently
distinctive. (Id. at p. 248.)
However, it then held: “It
appears . . . that a common mark additional to those above considered
is involved in this case. That mark,
which seems to have been accorded little significance by the parties hereto, is
the very presence of Donald McDowell as one of the perpetrators of both the
charged and uncharged offenses. It is
clear that McDowell’s presence, unlike the other features common to the charged
and uncharged offenses, is a mark whose distinctive nature tends to
differentiate those offenses from other armed robberies. There is only one Donald McDowell, and his
conjunction with defendant in earlier robberies, together with his admitted
participation in the robberies charged, supports the inference that defendant
and not some other person was his accomplice in those charged offenses. It thus appears that evidence of the
uncharged offenses has some probative
value on the issue of identity.” (
Similarly, in People
v. Robinson (1995) 31 Cal.App.4th 494, a witness testified to seeing the
defendant and one Ny Brown commit the charged arson of a residence. (Id.
at p. 498.) Over the defendant’s
objection, the same witness was allowed to testify that she had also seen the
defendant and Ny Brown commit an uncharged arson of a car. (Id.
at p. 503.) The appellate court
observed: “Although there was nothing
particularly distinctive about either the subject arson or the earlier car
arson, the trial court properly admitted this car arson evidence
. . . because the two arsons shared ‘a mark whose distinctive nature
tends to differentiate those offenses from other’ arsons. [Citations.]
That ‘mark’ was Ny Brown ‘and his conjunction with defendant in [the]
earlier arson . . . [which] supports the inference that defendant and
not some other person was his accomplice in [the] charged offense[].’ [Citation.]”
(Ibid.)
Defendant relies on People v. Felix (1993) 14 Cal.App.4th 997. There, defendants Felix and Pedrico were both
charged with the robbery of four victims at a supermarket. (Id.
at pp. 1000-1001.) Evidence was
introduced that they had both pleaded guilty to a prior robbery of a
restaurant. (Id. at p. 1002.) The
prosecutor conceded that the charged
and uncharged robberies “bore no distinctive marks in common . . .
other than the association of the two defendants. No details of the prior crime were put before
the court, and the court relied on no distinctive features in ruling it
admissible.” (Id. at p. 1005.) The
court held that, in the absence of an admission by either defendant that he
committed the charged crime, and in the absence of “other marks of similarity,”
the uncharged robbery was not admissible to show identity. (Id.
at p. 1006.)
Here, of course, we have both of the facts that
were lacking in Felix. Mahan and Andrews admitted the charged
similarities between the charged and uncharged crimes. This is sufficient to support the inference
that Robber One was always defendant.
Arguably, this inference would be defeated if
Robber One varied from crime to crime in unalterable
respects — for example, if he was African-American in one crime and Caucasian
in another. However, if he varied only
in alterable respects, while the
inference would be weaker, it would still be supported. Actually, Robber One varied very little. Sometimes his bandanna was light; sometimes
it was dark. Sometimes he jumped the
counter; sometimes he did not. These
trivial differences, however, did not defeat the inference —
crimes with Mahan and Andrews — that defendant was Robber One. The robberies themselves were “like a
signature.” There did not have to be
additional “signature” similarities regarding Robber One.
Defendant argues, however, that there were dissimilarities
between the final robbery and the charged February 10 GameStop robbery. This is another red herring. The jury hung on all counts related to the
February 10 robbery; those counts were eventually dismissed. Even though the final robbery was somewhat
dissimilar to the February 10 robbery, it was still relevant to prove that
defendant committed all of the other
robberies to which it was similar.
Defendant also notes that there were
discrepancies between some of the witnesses’ descriptions. At the risk of repeating ourselves, we note
that this is, yet again, a red herring.
These discrepancies were demonstrably due to the fallibility of
eyewitnesses’ perceptions and memory.
They can be all but eliminated by the simple expedient of disregarding the
eyewitness testimony whenever it is
belied by the videos.
Finally, defendant argues that there were
dissimilarities between the final robbery and the four robberies of which he
was found guilty. For example, in the
final robbery, defendant had an employee lock the front door; also, the robbers
briefly shut employees into a stockroom.
the evidence, not its admissibility. No
two robberies are ever going to be exactly alike. It is conceded that, despite these
differences, Mahan and Andrews committed all five robberies. It is not unreasonable to conclude that
defendant did, too.
In sum, for the foregoing reasons, the trial
court did not abuse its discretion by denying defendant’s motion to strike the
evidence of the final robbery.
III
SENTENCING ISSUES
A. Additional Factual and
Procedural Background.
The probation officer submitted a probation
report dated August 10, 2010. It stated
that defendant had two felony convictions — a 2004 Nevada conviction for
attempted burglary and a 2007 California conviction for robbery.
conviction, as a result of his guilty plea, for the final robbery.)
The probation report also stated that defendant
was presumptively ineligible for probation because a deadly weapon had been
used. This was incorrect. Under Penal Code section 1203, subdivision
(e)(2), “[a]ny person who used, or attempted to use, a deadly weapon upon a
human being in connection with the perpetration of the crime of which he or she
has been convicted” is presumptively ineligible for probation. It has been held that this encompasses only
personal use; it does not encompass vicarious use. (People
v. Alvarez (2002) 95 Cal.App.4th 403, 406–409, and cases cited.) There was no evidence that defendant
The probation officer opined that there were some
factors supporting a grant of probation (Cal. Rules of Court, rules 4.414(b)(4)
[ability to comply with reasonable terms of probation], 4.414(b)(5) [the likely
effect of imprisonment on the defendant], 4.414(b)(6) [the adverse collateral
consequences on the defendant’s life]), as well as some factors supporting a
denial of probation (Cal. Rules of Court, rules 4.414(a)(1) [the nature and
circumstances of the crime as compared to other instances of the same crime],
4.414(a)(6) [the defendant was an active participant], 4.414(a)(8) [the manner
in which the crime was carried out demonstrated criminal sophistication or
professionalism on the part of the defendant]).
Nevertheless, he concluded that defendant “is not viewed as suitable for
a grant of formal probation given the circumstances of the offenses and his
active participation . . . .”
In a sentencing memorandum, the prosecution
conceded that defendant was, in fact, eligible for probation. It argued, however, that all of the relevant factors supported the denial of probation.
On October 1, 2010, the trial court outlined an
indicated sentence. After hearing argument,
however, it asked the parties to submit further briefs regarding the
application of Penal Code section 654.
On October 29, 2010, at the continued sentencing
hearing, defense counsel raised an issue of juror misconduct. The trial court granted a further continuance
for purposes of a motion for new trial.
On March 11, 2011, the trial court denied the
motion for new trial. It then imposed
the same sentence as its indicated sentence five months earlier. It began by stating: “[D]efendant is ineligible for a grant of
probation unless the court finds this to be an unusual case. I do not find that it is an unusual case
particularly given . . . there was a deadly weapon used in the course
of these many robberies.”
B. Finding of Probation
Ineligibility.
Defendant contends that the trial court erred by
finding that he was presumptively ineligible for probation, because he did not
personally use a deadly weapon. The
People concede the error (although they argue that it was harmless).
We briefly considered whether defendant was
presumptively ineligible for probation in any event, because he had two prior
felony convictions. (Pen. Code,
§ 1203, subd. (e)(4).) It has been
held, however, that a felony conviction is not a “prior” for this purpose
unless it occurred before the current crime;
it is not enough that it occurred before the current conviction. (
688, 690-691; In re Pfeiffer (1968)
264 Cal.App.2d 470, 476; see generally People
v. Balderas (1985) 41 Cal.3d 144, 201.)
Here, defendant’s 2007 robbery conviction did not occur until after the
current crimes. And his juvenile
adjudication is not a “conviction” at all.
(Welf. & Inst. Code, § 203.)
We agree with the People, however, that the error
was harmless. Defendant committed a
series of at least five robberies.
Presumably, if he had not been arrested, he would have continued to
rob. He was an active participant; he
led the way into the store, and he was responsible for taking the cash from the
registers. Although defendant did not
personally use a firearm, his accomplice did; each time, all of the employees
and customers who happened to be in the store were placed in fear of their
lives. The robberies displayed
opined that defendant was not suitable for probation.
In addition, defendant had a significant criminal
record: The 2000 juvenile adjudication
for first degree burglary and the 2004 conviction for attempted burglary.
placed on probation for 18 months. He
had started committing the current series of robberies only about nine months
after completing probation.
Given these facts, we see no reasonable
probability that the trial court would have granted probation. Defendant argues that he was young (only 22
when the robberies were committed).
However, this cuts both ways; for one so young, he had already racked up
quite a criminal record. Defendant also
points out that he had been “out of custody without incident.” This is true, however, only between February 2010,
when he was released after serving his sentence in connection with the final
robbery, and July 2010, when he was found guilty and remanded into
custody. And one would expect him to be
on his best behavior while awaiting trial.
Defendant argues that the error violated his
federal constitutional right to due process.
“[D]efendant’s argument — which is based on an unreasonable reading of
[65 L.Ed.2d 175, 100 S.Ct. 2227] — is to the effect that error under state law
is ipso facto error under the due process clause of the Fourteenth Amendment. But ‘[a] state-law violation is
constitutional due process . . . .’ [Citations.]”
(People v. Clair (1992) 2
Cal.4th 629, 658, fn. 5.)
C. Failure to Obtain a
Supplemental Probation Report.
Defendant contends that the trial court erred by
sentencing him based on a stale probation report.
Defense counsel did not object below. Nevertheless, when a defendant is eligible
for probation, this error cannot be forfeited by silence; it can be waived only
expressly and on the record. (Pen. Code,
§ 1203, subd. (b)(4); People v.
Dobbins (2005) 127 Cal.App.4th 176, 181-182; see also People v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1432 [Fourth
Dist., Div. Two].)
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 Advisory Committee
Comment to the rule suggests that a period of more than six months may
constitute a significant period of time . . . .” (People
v. Dobbins, supra, 127
Cal.App.4th at p. 181.)
Here, the probation report was prepared seven
months before sentencing actually took place.
It follows that the trial court erred by failing to obtain a
supplemental probation report. Indeed,
the People do not argue otherwise.
However, they do argue, again, that the error was harmless.
There is “no federal constitutional right to a
supplemental probation report. Because
the alleged error implicates only California statutory law, review is governed
by the Watson harmless error
standard. [Citations.] That is, we shall not reverse unless there is
a reasonable probability of a result more favorable to defendant if not for the
error. [Citation.]” (People
v. Dobbins, supra, 127
Cal.App.4th at p. 182.)
As already discussed, based on the original
probation report, there was no reasonable probability that the trial court
would have granted probation. This was
due to (1) the circumstances of defendant’s crimes and (2) defendant’s criminal
history — factors that would not change over time. Defendant had been in jail continuously
between his conviction and the sentencing hearing. Even if a supplemental probation report had
been filed, and even if it showed that defendant had been a model inmate during
that time, the trial court still would not have granted probation. If there were any favorable new developments,
defense counsel had the opportunity to advise the trial court of them, either
in writing, by filing a new sentencing memorandum, or orally, at the
We therefore conclude that the failure to obtain
a supplemental probation report was harmless error.
IV
DISPOSITION
The judgment is affirmed.
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
1/30/07
2/7/07
2/11/07
2/12/07
2/13/07
Robber One:
Top
dark hoodie
dark hoodie
dark hoodie
dark hoodie
dark hoodie
Bottom
dark jeans
dark pants
dark jeans
dark pants
dark pants
Mask
dark fabric object
light cloth or bandanna
dark printed bandanna
mask or bandanna
dark printed bandanna
Robber Two:
Top
dark
dark fur-lined hoodie
dark hoodie
dark hoodie
dark hoodie
Bottom
dark
dark
dark jeans with faded thighs
dark jeans with faded thighs
dark jeans with faded thighs
Mask
dark fabric object
light cloth or bandanna
light printed bandanna
light bandanna
light bandanna
Arming
shotgun
sawed-off shotgun
rifle (like Ex. 21)
short rifle (like Ex. 21)
shotgun
Robber Three:
Top
light multicolored hoodie
light multicolored hoodie over white shirt
black hoodie over red shirt
light multicolored hoodie
light multicolored hoodie over red shirt
Bottom
light pants
dark pants
light blue pants
light pants
light pants
Mask
Blood-dripping Scream mask
Red or blood-dripping Scream mask
Scream mask
Blood-dripping Scream mask
“Robber One,” “Robber Two,” and “Robber Three,” based on the order in which
they entered, except that, if Robber One and Robber Two entered together, we
call the one with the firearm “Robber Two.”
evidence that on February 10, 2007, three men robbed a GameStop in
Riverside. The jury hung on all counts
related to this robbery, and those counts were eventually dismissed.
There were significant differences
between this robbery and all of the other robberies. Among other things, all three robbers came in
together, witnesses did not mention seeing either a light multicolored hoodie
or a Scream mask, and most witnesses believed that two of the robbers had
guns. One witness was “certain” that
there were four robbers and that one of them was White.
A police officer testified that he
viewed a security video of this robbery, but it was of poor quality. It was not played at trial. Thus, there was no way to check the accuracy
of witnesses’ recollections.
