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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ordered 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 Appellant.

 A165785

 (Contra Costa County Super. 

 Ct. No. 05001427277)

In 2015, defendant Markel Tate was convicted, pursuant to a plea 

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

sexual intercourse. As 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 court 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 Bill No. 620 (2017-2018 

Reg. Sess.) and Senate Bill No. 81 (2021-2022 Reg. Sess.) to strike or dismiss 

the firearm enhancement. 
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In July 2022, the trial court struck the one-year enhancement for the 

prior prison term and declined to strike the firearm enhancement. 

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, nor did he object to the trial court proceeding without 

considering such a report. To the contrary, defendant acknowledges that

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

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

such abuse 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 at 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 appeal”].) Moreover, “neither 

statute nor rule of court required the trial court to obtain a supplemental 

report” in this case. (Ibid.) 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. 
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DISPOSITION

The judgment is affirmed.
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_________________________

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 Constitution.