THE PEOPLE v. MICHAEL VALENZUELA

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL VALENZUELA, Defendant and Appellant.

B205024

Decided: June 25, 2010

Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Michael Valenzuela challenges his first degree murder conviction.   Defendant contends the trial court erred by removing his public defender after she declared a conflict of interest and by failing to order a supplemental probation report.   He also argues that his trial attorney was ineffective for failing to object to a portion of the prosecutor's argument.   We affirm.

BACKGROUND

On the morning of November 29, 2005, Thomas Sehnert went to the West Covina home of his brother, Richard Sehnert, because Richard had not answered or returned his family's phone calls for two days.  (All further date references pertain to 2005, unless otherwise noted.)   Thomas found Richard lying dead on his bed.   Richard had 13 “sharp force” wounds, meaning stabbing or incising wounds from a sharp instrument, 7 of which were to his head and neck.   Six of the wounds would have been “rapidly fatal,” and one of those may have paralyzed Richard.   It would have taken a significant amount of force to inflict five of the wounds that penetrated bone and cartilage, including three stab wounds to his neck that penetrated his spinal cord and a 13- to 16-inch long head wound that was 23/434 inches deep and penetrated Richard's skull and brain.   One of the 13 wounds was a defensive wound on Richard's left hand.   Testing revealed 0.16 micrograms per milliliter of methamphetamine in Richard's blood.   Richard was 6 feet 1 inch tall and weighed 240 pounds.

Blood was pooled under Richard's body and spattered all around on his bed, the wall, ceiling, ceiling fan, television, dresser, and door.   A bloodstain was found on the door of a closet across the hall from the bedroom.   Two teeth were lying next to Richard and a bloody knife was on the floor near Richard's dangling legs.   The investigating detective opined that the pools of blood under Richard's body indicated that most of his blood loss occurred after he was lying in the position in which he was found.   The blood spatter on the pillow indicated either that Richard fell back into a pool of blood and splattered it or one or more of the stab wounds occurred while he was lying on the bed.   The blood spatter on the wall directly behind the body further indicated that Richard was on the bed when one or more of the stab wounds occurred.   The police found no identifiable blood on the carpet in the bedroom, which indicated that Richard was not stabbed while he was standing between the bed and the dresser.   The detective believed Richard was initially sitting, then lying on the bed when the stab wounds were inflicted.

Blood was also found on the steering wheel of Richard's Mercedes Benz, which was parked outside a Walmart store, unlocked, with the keys inside it.   At the request of detectives, a loss prevention manager for the store reviewed footage from the parking lot security cameras and located footage of Richard's car being driven into the parking lot at 7:51 a.m. on November 27.   At 7:52 a.m. a man got out of the car and walked across the parking lot toward the store.   He did not enter the store, but kept walking and crossed the street.   The security camera video was played at trial.

DNA testing of the blood on the steering wheel established a match with defendant, not Richard.   Blood on both sides of the knife handle was consistent with “contributions” by defendant and Richard, but on one side of the handle there was DNA from a third person.   The blood found on the hall closet door contained DNA consistent with Richard and a third person, but inconsistent with defendant.   DNA found in a sink and a condom matched defendant, not Richard.   The condom was found in three pieces, two in a trash can next to Richard's bed and one on the living room floor.

The police also recovered images captured by security cameras that Richard had inside and outside of his house.   The cameras were triggered by motion detectors and the images they captured were recorded on a computer inside the hall closet just across from Richard's bedroom.   When the police found the computer, all of its video cables and the power cord had been disconnected.   The police were able to locate, copy, and view the files that the cameras recorded on November 26.   Portions of the recordings were played at trial.   Detective Dario Aldacoa testified that images recorded during the daytime showed Richard slowly limping around inside the house and Richard's sister, Debbie Turner, entering the kitchen with what appeared to be grocery bags.   The last recorded image of Richard showed him sitting in the living room, watching television at 11:07 p.m. At 11:13 p.m. the recording showed a man with the same physical characteristics as defendant in the kitchen.   An outside camera recorded a small dark foreign compact car passing the house in one direction at 11:11 p.m. and in the opposite direction at 11:15 p.m. No images were recorded after that.

Dustin Watson testified that one night defendant asked him for a ride and offered to pay him $30.   Watson picked defendant up at a liquor store in a black Camry and drove him to a house that had a sign in front of it.   Brian Ashby was also in the car.   Defendant got out of the car and went into the house.   Watson waited for defendant to bring him the $30.   About a minute later, defendant came back out and gave Watson a box containing some coins and a camera.   Watson left defendant at the house.   Debbie Turner testified that Richard owned some valuable coins that he kept in a safe inside the house.

Turner further testified that Richard had pulled a groin muscle while packing to move to Las Vegas.   When she saw him on November 26 he was in a lot of pain and could only take slow, tiny steps.   She brought him groceries because he could not get in and out of a car.   Turner knew that Richard had a sexual relationship with defendant.

On the morning of November 27, defendant hurriedly packed his belongings and told the woman who rented a room to him that he had done something bad and had to leave.   Defendant seemed nervous.

Defendant eventually turned himself in at an American consulate in Mexico and was returned to Los Angeles.   Detectives interviewed him on February 7, 2006, and a videotape of that interview was played at trial.   Defendant told the detectives that he had taken a bus to Richard's house on Thanksgiving weekend to sell him an “eight-ball” of “dope.”   Richard, who was “already ․ on speed pretty heavily,” became angry, jumped up from the bed, clenched his fists, and accused defendant of shortchanging him.   This frightened defendant because he had never seen Richard behave violently.   Defendant pulled from his pocket the folding knife that he used in his work.   Richard “came at” defendant.   Defendant lunged at Richard and stabbed him three times in the torso.   Richard was standing between the bed and the dresser when defendant stabbed him.   Richard fell back onto the bed, and defendant grabbed Richard's car keys and left in Richard's car.   Defendant left the car at Walmart and boarded a bus to Mexico.   Defendant denied taking anything other than the car and its keys from the house.   He also denied suffering any injury during the altercation with Richard.   He told the detectives that a scar on his right hand resulted from a knife wound inflicted by his nephew in August or September.

The police found no drugs or methamphetamine pipes in Richard's house.   Defendant's employer told detectives that he had seen defendant use a box cutter and a knife while working, but he had never seen defendant with the knife found at the crime scene or any knife similar to it.

A physician specializing in “addiction medicine” testified as a defense expert.   He testified that methamphetamine gave its user “boundless energy” and a tendency toward impulsive and irrational behavior.   The use of methamphetamine is also associated with violent behavior and can cause a person to be “inordinately suspicious of things around them.”   The methamphetamine consumption reflected by Richard's blood could have caused him to act irrationally and violently, but tolerance levels vary among individuals and predicting a particular person's behavior is speculative.

The jury convicted defendant of first degree murder and found that defendant used a deadly and dangerous weapon in the commission of the offense.   The trial court sentenced defendant to 26 years to life in prison.

DISCUSSION

1. Removal of defense counsel

On the day defendant's trial was scheduled to begin, Deputy Public Defender Lesley Gordon informed the court that another attorney in her office had previously represented Brian Ashby, whom the prosecution had designated as a witness.   Gordon told the court that Ashby was on parole and in custody.   She added that his “case is in this court.” 1  Gordon assured the court that neither she nor her investigator had communicated with Ashby, that she had not been exposed to any privileged communications involving Ashby, and that she had reviewed only police reports, Department of Corrections materials, and “public records” with respect to Ashby.   Gordon informed the court that, although she had not initially believed there was a conflict of interest, she “ had to discuss further up the line with appellate, because as I have been delving further and further into this case and Mr. Ashby, there is an issue with respect to Mr. Ashby because he is at the scene, he is in possession of the stolen property.   There is blood at the scene that does not come back to the decedent or my client.  [¶] The knife that my client purportedly used belongs to Mr. Ashby.   Mr. Ashby is the one that fenced the stolen property and admits to the police he knew the property was stolen.   And the person he fenced it to is a man by the name of Therie Durr (phonetic), who when they stop him has blood on his pants and is in possession of the stolen property which he received through Mr. Ashby.  [¶] Mr. Ashby's history is consistent.”   Thus, Gordon explained, her questioning of Ashby would result in her taking a position adverse to a former client of her office and risk jeopardizing Ashby's parole status.   In light of these facts and possibilities, the attorney who was second in command of her office's appellate department had determined that this posed a conflict of interest that violated both the policy of the public defender's office and the rules of professional conduct.

The court repeatedly asked Gordon if there was a way around the conflict.   She stated that, regrettably, she could not, “in good conscience” continue to represent defendant or “legitimately and ethically avoid” the conflict.   The court inquired about a waiver.   Gordon responded that “our policy is we don't do that unless there's an extreme reason to do so, and it would require written waivers ․ from both clients.”   The court asked the prosecutor whether she could put on her case without Ashby.   The prosecutor replied that she did not intend to call Ashby.   Gordon responded that the defense would “have to” call Ashby as a witness because no “competent lawyer could ignore using Mr. Ashby.”   The court accepted Gordon's declaration of a conflict of interest, contacted the Office of the Alternate Public Defender, and, pursuant to defendant's time waiver, continued the trial.   Near the conclusion of the court's explanation of the ruling to defendant, the court said, “You don't know how much I would like to have her remain.”   Defendant replied, “Me, too.”   The court said, “And along with [the prosecutor] as well.   But, unfortunately, I don't have the power to overrule the department directly.”

Defendant contends the court violated his state and federal constitutional rights to counsel by accepting Gordon's declaration of a conflict of interest and discharging her.

“ ‘A trial court's authority to disqualify an attorney derives from the power inherent in every court “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” ’ ”   (People v. Jones (2004) 33 Cal.4th 234, 240 (Jones ), quoting People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.)  “Inherent in the question whether a trial court may disqualify a criminal defense attorney over the defendant's objection is the conflict between the defendant's preference to be represented by that attorney and the court's interest in ‘ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.’ ”  (Jones, at p. 240, quoting Wheat v. United States (1988) 486 U.S. 153, 160 [108 S.Ct. 1692] (Wheat ).)  “[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”   (Wheat, at p. 159.)

Article I, section 15 of the California Constitution also provides a criminal defendant with the right to representation by a competent attorney, but it “does not give an indigent defendant the right to select a court-appointed attorney.”  (Jones, supra, 33 Cal.4th at p. 244.)  “[W]hen ․ a trial court removes a defense attorney because of a potential conflict of interest, the court is seeking to protect the defendant's right to competent counsel.   In such circumstances, there is no violation of the right to counsel guaranteed by article I, section 15 of the state Constitution, notwithstanding the defendant's willingness to waive the potential conflict.”   (Id. at pp.   244-245.)  “A trial court may remove defense counsel, even over defendant's objections, ‘in order to eliminate potential conflicts, ensure adequate representation, or prevent substantial impairment of court proceedings․' ”  (People v. Richardson (2008) 43 Cal.4th 959, 995 (Richardson ), quoting People v. McKenzie (1983) 34 Cal.3d 616, 629.)

“The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict․”  (Wheat, supra, 486 U.S. at p. 162.)   Accordingly, trial courts “must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.”  (Id. at p. 163.)   The trial court “must recognize a presumption in favor of [defendant's] counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.   The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.”  (Id. at p. 164.)   The decision to remove defense counsel is reviewed for abuse of discretion.  (Richardson, supra, 43 Cal.4th at p. 995.)

After reviewing the record, we cannot conclude that the trial court abused its discretion or violated defendant's constitutional rights by accepting Gordon's declaration of a conflict of interest.   As a preliminary matter, we note that defendant did not object to the removal of Gordon, but simply expressed regret.   This is not a case in which the court removed defense counsel over the objection of counsel or the defendant.  (Cf. Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1566 (Rhaburn ).)   Gordon expressed regret about declaring a conflict of interest, but she did not, as defendant argues, deny that any conflict existed.   She explained to the court that she did not initially believe there was a conflict, but as she investigated Ashby's role in the case and discussed the issues with higher-ranking personnel in her office, she realized that a potential conflict existed, and she could not “legitimately and ethically avoid” the conflict or continue to represent defendant “in good conscience.”   The court thoroughly examined Gordon regarding her belief in the existence of the conflict and whether it would be possible to work around it, and was ultimately satisfied with Gordon's explanation.   The court did not abuse its discretion by refusing to second-guess Gordon and her supervisors, who were in the best position, professionally and ethically, to determine that a conflict of interest existed or would probably develop.  (Holloway v. Arkansas (1978) 435 U.S. 475, 485 [98 S.Ct. 1173].)   Gordon and her supervisors had a duty to advise the court of any conflict of interest, and the trial court should have given their representations concerning conflicts “the weight commensurate with the grave penalties risked for misrepresentation.”  (Id. at pp.   485-486 & fn. 9.) The trial court's decision to eliminate the potential conflict of interest by acceding to Gordon's request to discharge her and her office was not an abuse of discretion.

The record refutes defendant's claim that the trial court did not understand its discretion.   Read in the context of Gordon's remarks and the court's lengthy examination of the nature of the conflict and the possibilities for working around it, the court's comment that it did not “have the power to overrule the department directly” did not reflect a misunderstanding of the court's discretion.   It is clear from the remainder of the court's statements and inquiries that it fully understood its discretion.   We instead read the remark as a reiteration, tailored for defendant's understanding, of why Gordon declared a conflict of interest and why the court accepted that declaration.

Defendant also contends the facts failed to support the existence of a conflict because Gordon had not received any confidential information from or concerning Ashby.   But receipt of confidential information is not the only means by which a conflict of interest arises.   Courts have recognized that a conflict of interest may arise from an attorney's duty of professional loyalty to a former client.  (People v. Cornwell (2005) 37 Cal.4th 50, 75, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22;  People v. Clark (1993) 5 Cal.4th 950, 1001, disapproved on another ground in Doolin at p. 421, fn. 22;  People v. Carillo (2008) 163 Cal.App.4th 1028, 1040;  Rhaburn, supra, 140 Cal.App.4th at pp.   1574-1575.)   Gordon's explanation of the conflict plausibly supported both her belief that the conflict existed and the trial court's ruling.   She believed, based upon highly incriminating facts, that Ashby was complicit in the murder and that rigorous examination of Ashby at trial would simultaneously prove beneficial to defendant and detrimental to Ashby.   She specifically noted that Ashby was on parole, in custody, and had a case pending before the same trial court.   Although Gordon's characterization of Ashby as a former client suggests that her office was not at that time representing Ashby, his parole and custody status placed him in a category very different from that of the typical prosecution witness who had previously been represented by the public defender's office, but whose testimony would not pose a risk of adverse consequences with respect to the subject of that prior representation.  (See, e.g., Clark, supra, 5 Cal.4th at p. 1001;  Rhaburn, supra, 140 Cal.App.4th at pp.   1569-1571.)   Gordon's remarks implied that Ashby's parole status would be adversely affected by her plans to elicit evidence of Ashby's complicity in the charged offense or his possession of stolen property.   Gordon, as a deputy of Public Defender Michael Judge, would thus be taking a position adverse to, and potentially jeopardizing the liberty of, a former client still on parole.   If, as Gordon believed, she could demonstrate Ashby's participation in the charged offense or even a related offense, her efforts would, at a minimum, likely result in revocation of Ashby's parole.   This was a genuine concern with a high probability of realization, not merely an “extremely tenuous” “possibility that counsel's devastating cross-examination would ․ lead to a perjury charge (or even public embarrassment)․”  (Rhaburn, supra, 140 Cal.App.4th at p. 1579.)

In making its ruling, the trial court was entitled to consider “the interests of others potentially adversely affected by the representation and the effect of the conflict on the integrity of the judicial process.”  (People v. Baylis (2006) 139 Cal.App.4th 1054, 1071.)   The court acted well within its discretion in removing Gordon and her office, and did not err or violate defendant's rights.

The trial court was not required to consider a waiver of the conflict.   Defendant did not seek to waive the conflict and, as Gordon noted, Ashby, whose interests were most jeopardized by the conflict, would also have been required to waive it.   Nor was the court required to appoint independent counsel to advise defendant regarding the nonexistent waiver.

2. Ineffective assistance of counsel

A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, that (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.  (In re Jones (1996) 13 Cal.4th 552, 561.)   Defendant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy.  (Ibid.) In order to prevail on an ineffective assistance of counsel claim on appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.  (People v. Majors (1998) 18 Cal.4th 385, 403.)

Defendant contends trial counsel rendered ineffective assistance by failing to object to what he argues was legally incorrect and misleading argument by the prosecutor, thereby forfeiting the right to challenge the argument on appeal by means of a prosecutorial misconduct claim.

Defendant's claim stems from the following argument by the prosecutor:

“Let's talk about deliberation and premeditation.   If I asked you to find [sic ] deliberation and premeditation, I might get 14 different definitions.   The law says ․ that deliberately means that the defendant weighed the consequences.   And premeditation just means that he decided to kill before he did the act.   Well, let's take a look at premeditation and deliberation in everyday decisions.  [¶] When you stop at a stop-crossing, you look to the left, you look to the right, you decide if it's safe to enter-same thing with a railroad crossing-and then you go forward.   That split-second deliberation, you weighed the consequences.   Is it safe to enter?   And it involved premeditation.   You thought about it beforehand, and then you did it.   I was driving to work this morning, and I had to make a left turn.   And there was a car coming my way.   I had to decide in a split second whether to turn before the car came and hit me or whether to just stay and wait till [sic ] the car passed.   That split-second decision, I weighed the consequences, and I thought about it before I did it.

“Let's apply it to this case.   Did he intend to kill the victim?   Absolutely.  Deliberately.   Did he weigh the consequences?   He pulled out a knife and stabbed him, and then he kept stabbing him and stabbing him and stabbing him.   If it was just, maybe, one stab, you know, at a key location and the victim, you know, somehow died from that, that might be a different question.   But when you keep stabbing a person, obviously, you are weighing the consequences of that.   You keep going.   He keeps going and going.

“Premeditation. Decided to kill before.   We actually have a lot of evidence, ladies and gentlemen, with regard to premeditation.   Not just each of the stab wounds, but we also have the fact that the defendant brought a knife with him-a sharp knife with him to the victim's house.   A knife that he didn't use for work, but a knife that was sharp enough to kill.  [¶] We also have the defendant unplug the victim's video surveillance computer.   He didn't want anybody to know what was going on, what he was going to do.   And each step he pulls at that knife from his pocket, and he's intending-he's deciding to kill.   He unlocks that blade, and he's deciding to kill before he actually puts the first stab wound.   And then he decides to kill on the second stab wound and the third and the fourth and the fifth.   We have abundant evidence of premeditation.”

Defendant argues that the prosecutor's argument misstated the law because premeditation and deliberation cannot occur in a “split second,” and counsel should have objected.

The court gave the jury the following instruction regarding premeditation and deliberation:  “The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation․  The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill.   The defendant acted with premeditation if he decided to kill before committing the act that caused death.  [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated.   The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances.   A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated.   On the other hand, a cold, calculated decision to kill can be reached quickly.   The test is the extent of the reflection, not the length of time.”  (CALCRIM No. 521.)   During deliberations, the jury sent the court a note asking for an “interpretation” of the phrase “ ‘carefully weighed’ ” in this instruction.   With the agreement of counsel, the court directed the jury to “[u]se the common everyday meaning within the context of the entire instruction.”

The mental states of premeditation and deliberation can be formed in a very short period of calculated judgment and decision.  “In this context, ‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’  [Citations.]  The process of premeditation and deliberation does not require any extended period of time.  ‘The true test is not the duration of time as much as it is the extent of the reflection.   Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly․’ ”  (People v. Mayfield (1997) 14 Cal.4th 668, 767, quoting People v. Thomas (1945) 25 Cal.2d 880, 900.)   The prosecutor's use of the term “split-second” did not run afoul of the law.   In People v. Williams (1997) 16 Cal.4th 153, the prosecutor argued the following:  “ ‘All we want to know ․ is was the killing accompanied by a clear deliberate intent on the part of the defendant to kill which was the result of deliberation, a result of having formed it in his mind, having been reflected upon even for a split second․’ ”  (Id. at p. 224.)   The Supreme Court rejected a contention that this argument incorrectly defined the element of deliberation by stating, in effect, that deliberation could occur in a “split second.”  (Id. at pp.   223-224.)

Even if the prosecutor's driving example were objectionable for comparing driving decisions to the processes of premeditation and deliberation regarding a murder, defendant's ineffective assistance claim would lack merit because the record does not show that defense counsel lacked a rational tactical reason to refrain from objecting.

Nor has defendant demonstrated prejudice.   The trial court fully and properly instructed the jury regarding premeditation and deliberation and directed the jury to follow the law as stated in the instructions, rather than any conflicting statements made by counsel.  (CALCRIM No. 200.)   The jury's question regarding the meaning of “carefully weighed” in CALCRIM No. 521 indicates that the jury was following the court's instructions and focusing on the definition of “deliberation” provided in the instruction, rather than the example set forth in the prosecutor's argument.   In addition, the record presented strong evidence of premeditation and deliberation.   Defendant prepared for the crime by arming himself with a knife before entering Richard's home and disconnecting the security camera system soon after he entered.   The large number, locations, severity, and forcefulness of the stab wounds support an inference of a premeditated murder.   The blood spatter and pooling evidence indicated that Richard was lying or sitting on the bed when he was stabbed, which strengthen the inference that defendant had premeditated the murder.   It is not reasonably probable that defendant would have obtained a more favorable result if his attorney had objected to the challenged argument.

3. Failure to order supplemental probation report

The pre-plea probation report regarding defendant was prepared for defendant's arraignment on July 11, 2006.   When the court set the date for sentencing, defense counsel agreed that there was no need for a supplemental probation report.   The pre-plea report was filed in the trial court on January 8, 2008, the date the court sentenced defendant to prison.

Defendant contends, and the Attorney General effectively concedes, that the trial court erred by failing to order a supplemental probation report for defendant.   Defendant does not argue that the error affected the validity of his sentence, but instead argues that the pre-plea report omitted “information crucial to [defendant's prison] classification and parole consideration,” that “may be lost, and may never be recovered.”   In particular, he notes that the pre-plea report did not include his statement or any information about his employment history, education, residence, marriage, parenthood, substance abuse, or physical, mental, and emotional health.   Defendant argues that the error was structural, while the Attorney General argues that the error was merely a harmless error of state law.

California Rules of Court, rule 4.411(c) requires a trial court to “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.”  Rule 4.411(d) provides that “[p]robation officers' reports are used by judges in determining the appropriate length of a prison sentence and by the Department of Corrections and Rehabilitation, Division of Adult Operations in deciding upon the type of facility and program in which to place a defendant, and are also used in deciding whether probation is appropriate.”   Penal Code section 1203c, subdivision (a)(1) provides that if a defendant is sentenced to prison, the probation officer must send the Department of Corrections and Rehabilitation (DOCR) “a report of the circumstances surrounding the offense and the prior record and history of the defendant, as may be required by the Secretary of the [DOCR].”

In People v. Dobbins (2005) 127 Cal.App.4th 176, the court rejected a contention that a trial court's error in failing to order a supplemental probation report was reversible per se.   The court stated, “We perceive no federal constitutional right to a supplemental probation report.   Because the alleged error implicates only California statutory law, review is governed by the [People v. Watson (1956) 46 Cal.2d 818, 834-836,] harmless error standard.”  (Dobbins, at p. 182.)   Only a structural error, which affects the framework within which the trial proceeds and defies harmless error analysis, is reversible per se.  (Arizona v. Fulminante (1991) 499 U.S. 279, 309-310 [111 S.Ct. 1246];  People v. Stewart (2004) 33 Cal.4th 425, 462.)   Examples of structural errors in the criminal context include the total deprivation of the right to counsel at trial, a biased judge, unlawful exclusion of members of the defendant's race from a grand jury, denial of the right to self-representation at trial, denial of the right to a public trial, and an erroneous jury instruction on reasonable doubt.  (Stewart, at p. 462;  People v. Marshall (1996) 13 Cal.4th 799, 851.)   Trial errors, on the other hand, are those errors occurring in the trial process that may be quantitatively assessed in the context of the evidence, instructions, and other matters to determine whether the error was prejudicial.  (Marshall, at p. 851.)  “There is a strong presumption any error falls within the latter category, and it is the rare case in which a constitutional violation will not be subject to harmless error analysis.”  (Ibid.) As Dobbins held, a failure to obtain a supplemental probation report is a trial error, the effect of which may be quantitatively assessed, rather than an error affecting the framework of the trial or sentencing.   A remand for preparation of a supplemental probation report is required only if defendant shows a reasonable probability that he would have obtained a more favorable result if a supplemental probation report had been prepared.

All of the items that defendant complains are missing from his pre-plea report are matters that are within his own knowledge.   Had a supplemental probation report been prepared, defendant would have been the probation officer's primary source of information.   Apart from suggesting that his memory might fade, defendant has not shown or suggested why the omitted information would be lost and never recovered.   It is also highly probable that the information missing from the pre-plea report has already been gathered by the DOCR. The DOCR is required to “cause each person who is newly committed to a state prison to be examined and studied.   This includes the investigation of all pertinent circumstances of the person's life such as the existence of any strong community and family ties, the maintenance of which may aid in the person's rehabilitation, and the antecedents of the violation of law because of which he or she has been committed to prison.   Any person may be reexamined to determine whether existing orders and dispositions should be modified or continued in force.”  (Pen.Code, § 5068.)   Regulations governing the intake processing of persons committed to the DOCR require that prison staff prepare a “Cumulative Case Summary” including numerous specific forms, a “summary of the inmate's social factors,” and an “Institutional Staff Recommendation Summary.”   For anyone sentenced to a life term, the staff must “summarize the inmate's history of or status concerning:  type of confidential information on file;  holds or detainers;  medical and dental requirements or limitations;  results of a psychiatric or psychological referral;  work experiences and skills;  narcotics, drugs and alcohol use;  escapes;  arson offenses;  sex-related offenses;  academic and vocational needs or interests;  necessary casework follow-up;  the counselor's evaluation of the inmate;  reentry plans if the inmate has six months or less to release;  classification score and custody designation suffix;  community correctional facility eligibility;  and recommended facility placement.”  (Cal.Code Regs., tit. 15, § 3075.1, subds. (a), (h).)

As defendant notes, his custodial classification “will be an ongoing, continuous process for the duration of his prison term.”   When defendant is considered for parole, he will “have the right to present relevant documents to the hearing panel․  They may cover any relevant matters such as mitigating circumstances, disputed facts or release planning.”  (Cal.Code Regs., tit. 15, § 2249.)   If “the hearing panel determines there is insufficient information available to determine any relevant or necessary fact, the hearing panel may continue the hearing up to 90 days.   Appropriate staff shall be instructed to obtain the specific information which is needed as soon as possible.”  (Cal.Code Regs., tit. 15, § 2238.)   Thus, in the unlikely event that the DOCR fails to obtain and record any of the information regarding defendant's background that would have been supplied by a supplemental probation report, defendant will have an opportunity to supply that information when he is considered for parole.

For all of these reasons, defendant has not shown a reasonable probability that he would have been classified more favorably if the trial court had ordered a supplemental probation report.   Nor has he shown a reasonable probability that the absence of a supplemental probation report will in any way prejudice his parole prospects.   The error was harmless.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

We concur:

FOOTNOTES

FN1. It is unclear whether Gordon was referring to a new case or the case from which Ashby's parole stemmed..  FN1. It is unclear whether Gordon was referring to a new case or the case from which Ashby's parole stemmed.

ROTHSCHILD, J. CHANEY, J.