1

Filed 9/21/23 P. v. Tate CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
MARKEL TATE

, Defendant and Appel lant. A1 65785

( Contra Costa County Super. Ct. No. 05001427277 )

In 2015, d efendant Markel Tate was convicted , pursuant to a plea

agreement, of one count of second degree burglary and one count of unlawful

sexual intercourse . A s a result, he received a 10

- year prison sentence , which

included one year for a prior prison term and four years for a firearm use

enhancement.

In April 2022, defendant filed a petition for recall and resentencing

, requesting the trial c ourt strike the one

- year term for the prison prior

pursuant to former Penal Code section 1171.1 (since renumbered § 1172.5

, Stats. 2022, ch. 58, § 12, eff. June 30, 2022)

. Defendant also asked the trial

court to exercise its discretion granted by Senate B ill No. 620 (2017

- 2018
Reg. Sess.) and Senate Bill No. 81 (2021

- 2022 Reg. Sess.) to strike or dismiss

the firearm enhancement.2

In July 2022, the trial court struck the one

- year enhancement for the

prior prison term and declined to strike the firearm enh ancement.
Defendant appeals from the trial court’s denial of his request to strike

or dismiss the firearm enhancement. 1 We affirm.

DISCUSSION
Defendant’s sole claim on appeal is that the trial court abused its
discretion in failing to order a supplemental probation report before
resentencing defendant. But defendant did not request a supplemental

probation report

, n or did he object to the trial court proceeding without
considering such a report . To the contrary, d efendant acknowledges that

defense counsel objected to the prosecutor’s request for a continuance to

obtain defendant’s prison fil e, and that he cannot show prejudice from any

such abu se of discretion because he objected to the very records as hearsay

that he now claims might have shown changes in his behavior and attitude in
recent years of his imprisonment

. Defendant further concedes that he was
statutorily ineligible for probation a t resentencing

. Under these

circumstances, defendant has forfeited his only appellate claim. ( People v.

Franco (2014) 232 Cal.App.4th 831, 834 [where a defendant is ineligible for
probation, failure to request a supplemental probation report results “in
waiver of a supplemental report in the trial court and forfeiture of the right
to object to the absence of such a report on appea l”]

. ) Moreover, “ neither
statute nor rule of court required the trial court to obtain a supplemental

report ” in this case. ( I bid .) Accordingly, we reject defendant’s claim that the
trial court abused its discretion in failing to order a supplemental probation

report

.

1 In his reply brief, defendant’s counsel informs us that defendant was released from prison on parole on or about May 1 , 2023.3 DISPOSITION
The judgment is affirmed.4 _________________________ Miller, J.

WE CONCUR:

_________________________ Stewart

, P.J.

_________________________ Markman, J. *

A165785

, People v. Tate

* Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Consti tution.