P. v. Gooch
Filed 2/27/13 P. v. Gooch CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
RUSSELL LEE GOOCH,
Defendant and Appellant.
B236978
(Los Angeles
County
Super. Ct.
No. BA331982)
APPEAL from
an order of the Superior Court
of
County. Alex
Ricciardulli, Judge. Reversed and
remanded with directions.
Helen S.
Irza, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Susan Sullivan Pithey, and Mary Sanchez, Deputy Attorneys General,
for Plaintiff and Respondent.
_______________________
INTRODUCTION
This case
comes before us a second time. On March 3, 2008, a jury in Santa
Barbara convicted Russell Lee Gooch of stalking,
dissuading a witness by force or threat and contempt of court. The convictions occurred at Gooch’s second
trial; at the first trial the jury deadlocked on all counts, and a mistrial was
declared. On May 9, 2008, the Santa
Barbara trial court sentenced Gooch to an aggregate state prison term of six
years, suspended execution of the sentence, and granted him five years of formal
probation on various terms and conditions, including that he not have any
contact with the victim or her family for 10 years, and complete a two-year
program.
title="">[1] (People
v. Gooch (April 19, 2011,
B220982) [nonpub. opn.].) Because Gooch
was ordered into the Delancey Street Foundation, a Los
Angeles residential treatment program, the case was
transferred to Los Angeles County
for probationary supervision.
Gooch
entered the residential treatment program at the Delancey Street Foundation on May 12, 2008. (People
v. Gooch (April 19, 2011,
B220982) [nonpub. opn.].) He was
terminated from the program on May 15,
2009 based on an allegation by the victim that he had electronic
contact with her. (Ibid.) Thereafter, the Los
Angeles trial court revoked his probation and imposed the previously stayed
six-year state prison sentence after finding Gooch had caused an instant
messaging communication to be sent to the victim’s e-mail account, in violation
of the no-contact order, during his stay at the residential treatment
program. (Ibid.)
Gooch
appealed; and this court reversed the order revoking probation and imposing the
previously stayed sentence after concluding there was insufficient evidence to
support the trial court’s finding. (
case. (Evid. Code, §§ 452, subd. (d),
459.)
At the completion of the October 6,
2011 hearing on remand, the trial court reinstated Gooch’s probation on the
same terms and conditions “nunc pro tunc to November 4, 2009,†the date his
probation was formally (as opposed to summarily), revoked.
Gooch
appealed, contending the trial court violated his
request for a supplemental probation report before deciding to reinstate him on
probation, and abused its discretion in denying Gooch’s alternative request to
modify the conditions of probation. Gooch
also seeks to have the minute order of the October 6, 2011 hearing amended to reflect that his
probation expires on May 8, 2013.
PROCEDURAL BACKGROUND
At the hearing on remand, Gooch
appeared with counsel in the trial court for further proceedings in accordance
with the reversal of the probation revocation.
By this time, Gooch was no longer in custody, having completed his state
prison sentence.
Defense counsel requested that the
trial court order a supplemental probation report pursuant to Penal Code
section 1203 before determining what the terms of Gooch’s reinstatement on
probation should be, given the length of time and “all the things that have
changed†since Gooch was placed on probation two years earlier.
refused, stating it intended to reinstate probation on the same terms and
conditions, and a supplemental probation report was unnecessary in view of the
appellate court’s ruling.
Counsel then asked the trial court
to delete the conditions of probation that Gooch complete a residential alcohol
and drug treatment program and submit to periodic testing and reporting as
required by the probation department.
Counsel argued these conditions were “inappropriate†because Gooch had
served his state prison sentence and was currently employed as the manager of a
residential alcohol and drug treatment facility. Counsel maintained that if these conditions
were not deleted, Gooch would be “essentially on the hook for another year of
residential treatment.†Counsel provided
the court with a letter from Gooch’s employer, Cwest Sober Living, in which the
owner, Max Russo, described Gooch’s duties in overseeing the activities of the
facility’s twelve residents, and expressed pleasure with Gooch’s job
performance.
In denying
counsel’s request for a modification of Gooch’s probation, the trial court
stated, “I think that the original terms and conditions, including the terms of
his residential treatment, should be in full force and effect. I don’t think that he’s receiving the
treatment that we had in mind while he was in state prison.†The trial court’s oral pronouncement at the October 6, 2011 hearing properly
vacated the probation revocation and imposition of the state prison sentence as
directed by this court.
DISCUSSION
The
Trial Court Abused its Discretion by Failing to Order a Supplemental
Probation Report
Gooch contends the trial court’s
failure to order a supplemental probation report denied him his due process
right to a fair hearing, first because of the time lapse between the previous
supplemental probation report of November 2009 and the hearing on remand on
October 6, 2011, and second, because it resulted in an uninformed decision by
the trial court.
When a defendant is
eligible for probation, he is ordinarily entitled to a supplemental probation
report whenever a new sentence will be pronounced, such as on remand after a
sentence is reversed on appeal (People v.
Rojas (1962) 57 Cal.2d 676, 679-682 [“We can only conclude that the
Legislature intended, with each contemplated pronouncement of judgment and the
concurrent determination of whether to grant or deny probation where an accused
is otherwise eligible, that a defendant is entitled to have a current report
before the trial judge†(construing former § 1203, now § 1203, subd. (b)(1))];
§ 1203d.) Additionally, if a substantial
period of time has elapsed between the defendant’s original sentencing hearing
and his or her resentencing hearing, the defendant is entitled to an updated
probation report. (See also Cal. Rules
of Court, rule 4.411(c), Advisory Com. com. [“Subdivision (c) 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 . . . .â€]; People v. Cooper (1984) 153 Cal.App.3d 480, 482-483;
814, 821-822). Moreover, in
1266, 1273, our colleagues in Division One concluded the decision to order a
current probation report on remand for resentencing when a defendant is ineligible for probation was within the trial
court’s discretion, but where the defendant’s request of an updated report
suggests it will reveal mitigating factors for the trial court to consider,
there should be a good countervailing reason for the trial court to deny the
request.
The
trial court was not mandated to order a supplemental probation report because
Gooch’s case was not remanded for resentencing.
The purpose of the October 6, 2011 hearing was not to restore Gooch to
his original position, as if he had never been sentenced, which would have
afforded him the right to a probation report to assist the trial court in
determining whether probation was appropriate, and if not, what sentence to be
imposed. (See People v. Mercant (1989) 216 Cal.App.3d 1192, 1195 [supplemental
report required where “by reversing a defendant’s sentence, the court restores
the defendant to his original position as if he had never been sentenced.â€].)
The
trial court, however, did have significant alternatives to consider on
remand. Although respondent asserts, and
the trial court apparently believed, that this court ordered reinstatement of
probation, the remand required only reversal of the prior order. As a result, the trial court had the option
of ordering early termination of probation (Pen. Code, § 1203.3.),
modifying the terms of Gooch’s probation (ibid.),
or terminating probation in light of the fact that Gooch had served his entire
prison term as a result of the order which we reversed. Of these, counsel requested modification,
which the court declined to do.
In
light of these available choices, the significant time that had passed since
the initial sentencing proceedings, and Gooch’s apparent rehabilitation, the
court was without the information necessary to consider Gooch’s request for
modification. (People v. Rojas, supra,
57 Cal.2d at p. 682 [“[T]he overall purpose and objectives of the law relating
to probation are more completely accomplished by requiring current
investigations and reports.â€]; People v.
Tatlis, supra, 230 Cal.App.3d at p. 1273.)
Gooch’s reasons for seeking a
supplemental probation report were not satisfied during the brief hearing
conducted in this case. While the trial
court was aware that after being granted probation, Gooch completed one year of
residential treatment, and that after having his probation revoked, Gooch served
his state prison sentence, achieved sobriety and secured gainful employment, no
information was before the court regarding any program in which Gooch had
participated while in prison that resulted in his achieving sobriety. Thus, although the court’s stated reason for
refusing modification of the residential program requirement turned exclusively
on treatment, the trial court was without any information in making that
decision. Moreover, the trial court had
no information with respect to the continuing need for other terms of
probation, which it appeared not to consider.
The order
is reversed, and the matter remanded to determine whether Gooch should be
discharged from probation, or the terms of probation modified.
ZELON,
J.
We concur:
WOODS,
Acting P. J.
JACKSON, J.
judgment and from orders denying motions to terminate the protective order and
to modify his six-year sentence. In
unpublished opinions, our colleagues in Division Six affirmed the judgment in
the first appeal (People v. Gooch,
Aug. 4, 2009, B209105) and dismissed the second consolidated appeals as from
nonappealable orders (People v. Gooch,
May 8, 2012, B230500, B230448 (consolidated)).
name="_ftn2" title="">[2] The minute order indicates only the
imposition of sentence was vacated; it does not state the order revoking
probation was vacated as well. The
parties do not dispute the oral pronouncement controls over the clerk’s minute
order. Any discrepancy between the two
is presumed to be clerical error in the minute order (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2;
471), which can be corrected at any time to reflect the court’s oral
pronouncement. (See People v. Mitchell (2001) 26 Cal.4th 181, 183, 185-188.) Accordingly, we order the minute order
corrected to reflect the trial court’s order revoking probation was
vacated.
