1 

Filed 12/11/13 P. v. Bradley CA3 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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 CALIFORNIA 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

CHRISTOPHER BRADLEY, 

 Defendant and Appellant. 

C066837 

(Super. Ct. No. 09F08772) 

 A police officer seized cash and cocaine from defendant Christopher Bradley’s 

pants pockets during a traffic stop, and also seized methamphetamine from the center 

console of defendant’s car during the stop. The trial court denied defendant’s motion to 

suppress the evidence of the seized items and the prosecution introduced the evidence at 

defendant’s trial. 

 A jury convicted defendant of unlawfully transporting cocaine base and 

methamphetamine and unlawful possession of methamphetamine. The trial court 
2 

sentenced defendant to six years in prison. On defendant’s motion, the trial court 

bifurcated the trial on the allegation that defendant was previously convicted of a serious 

felony. 

 Defendant now contends the trial court erred in (1) denying his motion to suppress 

evidence, (2) failing to conduct a trial on the allegation that defendant had a prior serious 

felony conviction, and (3) sentencing him without the benefit of a probation report. 

 We conclude the trial court properly denied the suppression motion. Nonetheless, 

we will vacate the judgment regarding the prior strike allegation and defendant’s sentence 

and remand the matter. 

 Regarding the prior strike allegation, if the trial court conducted a trial and found 

the prior strike allegation to be true, the trial court shall reinstate that portion of its 

judgment. Otherwise, the trial court shall conduct a trial limited to whether the prior 

strike allegation is true. 

 We will also remand the matter for resentencing and direct the trial court to obtain 

a current probation report which includes information about defendant’s conduct while 

incarcerated during the pendency of this appeal. 

 In all other respects, we will affirm the judgment. 

BACKGROUND 

 City of Sacramento Police Officer Steven Davis stopped a car driven by defendant 

after observing that the car was missing a front license plate and had an expired 

registration tag. Defendant pulled over to the side of the road when Officer Davis 

activated his lights. Anthony Herman sat in the front passenger seat of the car. 

 Following routine practice, Officer Davis reviewed the identification of defendant 

and Herman. The officer learned that Herman was on parole for transportation of 

narcotics. Although he did not see defendant or Herman participate in any illegal drug 

transaction or make any furtive movement, Officer Davis decided to conduct a parole 

search. 
3 

 A second officer arrived to assist Officer Davis. The second officer placed 

Herman in the back of a patrol car. A search of Herman’s person yielded no evidence of 

illegal activity. Herman was subsequently released. 

 Officer Davis informed defendant that his car would be searched. He asked 

defendant to step out of the car. Defendant did not appear to be under the influence of a 

controlled substance. He was compliant and cooperative with the officer. 

 Before searching defendant’s car, Officer Davis searched defendant for weapons 

because the officer intended to have defendant sit unrestrained on the curb during the 

search of defendant’s car. During the pat search, Officer Davis felt objects in the coin 

pocket of defendant’s pants. He believed, based on touch, that the objects were rock 

cocaine. Officer Davis reached into defendant’s pocket and retrieved a sandwich bag 

containing 17 pieces of individually wrapped objects. He used a NARTEC field test kit 

to confirm that the objects found in defendant’s pocket were cocaine. He weighed the 

cocaine at the scene and determined that it weighed approximately 3.73 grams. Officer 

Davis also found approximately $223 in cash in the pocket of defendant’s pants. 

 Officer Davis placed defendant in a patrol car and searched defendant’s car. He 

found 1.62 grams of methamphetamine in a sandwich bag placed in a compartment cut 

into the center console of the car. He did not find pay/owe sheets, a scale, or any 

implement that could be used to ingest cocaine or methamphetamine. 

 Defendant told Officer Davis the illegal drugs belonged to him. He said the 

cocaine and methamphetamine were for his personal use and Herman had no knowledge 

about the illegal drugs. Defendant said the cash in his pocket was payment for work he 

performed on a car. But the prosecution’s drug expert opined at defendant’s trial that 

defendant possessed the cocaine and methamphetamine for sale. 

 A jury convicted defendant of unlawfully transporting cocaine base (Health & 

Safety Code, § 11352 -- count two), unlawfully transporting methamphetamine (Health & 

Safety Code, § 11379, subd. (a) -- count three) and unlawful possession of 
4 

methamphetamine (Health & Safety Code, § 11377 -- a lesser included offense to count 

four). The jury was deadlocked on the count for possession of cocaine base for sale 

(Health & Safety Code, § 11351.5 -- count one), and the trial court declared a mistrial as 

to that count. 

DISCUSSION 

I 

 Defendant challenges the denial of his Penal Code section 1538.5 motion to 

suppress the evidence seized during the search of his car and person. Defendant argues 

(A) Herman’s parole status did not justify the search of the center console compartment 

of defendant’s car because Herman did not have access to or control over that 

compartment; (B) the pat search was constitutionally impermissible because there was no 

reasonable basis for suspecting that defendant might be armed and dangerous; and 

(C) this court may not consider the doctrine of inevitable discovery and the search 

incident to arrest exception to the warrant requirement because (i) the People did not 

prove that the search of the center console compartment was lawful pursuant to Herman’s 

parole status and (ii) Officer Davis did not have probable cause to arrest defendant after 

he discovered the sandwich bag in the center console compartment. 

 Challenges to the admissibility of evidence obtained by a search or seizure are 

evaluated under federal constitutional standards. (People v. Schmitz (2012) 55 Cal.4th 

909, 916 (Schmitz).) The Fourth Amendment to the United States Constitution protects 

an individual’s right to be secure in his or her person against unreasonable searches and 

seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8-9 [20 L.Ed.2d 

889, 898-899] (Terry).) The central inquiry under the Fourth Amendment is the 

reasonableness under all of the circumstances of the particular governmental invasion of 

a defendant’s personal security. (Terry, at p. 19 [20 L.Ed.2d at p. 904].) A defendant 

may move to suppress evidence obtained as the result of an unreasonable search or 

seizure. (Pen. Code, § 1538.5, subd. (a)(1)(A).) 
5 

 In reviewing the trial court’s denial of a suppression motion, we consider the 

record in the light most favorable to the trial court’s disposition and defer to the trial 

court’s factual findings, if supported by substantial evidence. (People v. Tully (2012) 

54 Cal.4th 952, 979.) Any conflicts in the evidence are resolved in favor of the trial 

court’s order. (People v. Limon (1993) 17 Cal.App.4th 524, 529.) If “ ‘ “the evidence is 

uncontradicted, we do not engage in a substantial evidence review, but face pure 

questions of law.” [Citation.]’ ” (Ibid.) We exercise our independent judgment to 

determine whether, on the facts found, the search or seizure was reasonable under the 

Fourth Amendment. (People v. Tully, supra, 54 Cal.4th at p. 979.) And we will affirm 

the trial court’s ruling if correct on any theory of applicable law, even if for reasons 

different than those given by the trial court. (People v. Evans (2011) 200 Cal.App.4th 

735, 742; People v. Hua (2008) 158 Cal.App.4th 1027, 1033.) 

A 

 Defendant first argues that Herman’s parole status did not justify the search of the 

center console compartment of defendant’s car. 

 Defendant concedes it was proper for Officer Davis to stop defendant’s car for 

observed traffic violations. (People v. Saunders (2006) 38 Cal.4th 1129, 1136; Arizona v. 

Johnson (2009) 555 U.S. 323, 327 [172 L.Ed.2d 694, 700].) Defendant also does not 

challenge Officer Davis’s request for identification information. (Saunders, supra, 

38 Cal.4th at p. 1137; People v. Vibanco (2007) 151 Cal.App.4th 1, 5, 13-14.) A records 

check revealed that Herman was a parolee who was subject to search. (Schmitz, supra, 

55 Cal.4th at p. 922, fn. 13 [an officer’s knowledge of a parolee’s status is equivalent to 

knowledge that parolee is subject to a search condition].) Herman was on parole for 

transportation of cocaine base. Defendant does not dispute that Officer Davis was 

authorized to search Herman based on his parole status. (Pen. Code, § 3067, former 

subd. (a) [every parolee is subject to search or seizure by a parole officer or other peace 

officer at any time of the day or night, with or without a search warrant and with or 
6 

without cause]; Schmitz, supra, 55 Cal.4th at p. 916 [California’s parole search clause is 

an exception to the constitutional requirement of a warrant].) But defendant asserts that 

Herman’s parole status did not justify the search of the center console compartment of 

defendant’s car because Herman did not have access to or joint control or possession over 

that compartment. 

Schmitz, supra, 55 Cal.4th 909 controls our analysis. Schmitz held that the Fourth 

Amendment permits the search of those areas of the passenger compartment of a car 

where an officer reasonably expects that a parolee could have stowed personal belongings 

or discarded items when aware of police activity. (Schmitz, supra, 55 Cal.4th at pp. 913, 

926.) “Within these limits, the officer need not articulate specific facts indicating that the 

parolee has actually placed property or contraband in a particular location in the 

passenger compartment before searching that area. Such facts are not required because 

the parole search clause explicitly authorizes a search ‘without cause.’ [Citations.]” (Id.

at p. 926, italics omitted.) The search of areas in the vehicle where the officer reasonably 

expects that the parolee could have placed items is supported by the state’s substantial 

interest in supervising parolees, a driver’s reduced expectation of privacy when he or she 

allows others to ride in his or her car, and the fact that a passenger in a standard 

passenger automobile generally has ready access to areas other than the seat the 

passenger occupies. (Id. at pp. 923-927.) 

 Here, substantial evidence supported the trial court’s finding that the center 

console area of defendant’s car was accessible to Herman. Herman was seated in the 

front passenger seat of defendant’s car. The methamphetamine was found in a 

compartment within the center console, which was located between the driver and front 

passenger seats. Herman could access the compartment from where he was seated. 

 Officer Davis testified it was common for people to conceal things in the center 

console. The top of the compartment where Officer Davis found the methamphetamine 

was not “on there very well,” and the location of the compartment was obvious. 
7 

Although a defense witness who observed the interior of defendant’s car about six 

months following defendant’s arrest testified that the location of the center console 

compartment was not obvious, the trial court credited Officer Davis’s testimony about the 

center console compartment over the contrary testimony of the defense witness. We do 

not disturb the trial court’s resolution of factual conflicts. (People v. Tully, supra, 54 

Cal.4th at p. 979.) In addition, the center console compartment was not closed off and 

there were no facts showing that only the driver of the car (i.e., defendant) controlled 

access to the center console compartment, such that Herman could not reasonably be 

expected to place items in that compartment. (Schmitz, supra, 55 Cal.4th at pp. 926, 

fn. 16 & 930, fn. 22 [stating that the rule permitting a search of those areas where the 

officer reasonably expects the parolee could place items does not necessarily authorize 

the search of closed-off areas].)1 

 There are no facts showing that the center console compartment of defendant’s car 

was so distinct in nature -- like the woman’s purse at issue in People v. Baker (2008) 164 

Cal.App.4th 1152, 1159-1160, a case defendant cites -- as to preclude a finding that 

Herman could have placed his belongings in the compartment. The center console of a 

car has not been recognized as “an inherently private repository for personal items” like a 

purse. (Cardwell v. Lewis (1974) 417 U.S. 583, 590 [41 L.Ed.2d 325, 335] [“One has a 

lesser expectation of privacy in a motor vehicle because its function is transportation and 

it seldom serves as one’s residence or as the repository of personal effects”]; People v. 

 

1 State v. Williams (1980) 48 Ore.App. 293, a case defendant relies on, does not require a 

different result. We are not bound to follow out-of-state decisions. (Episcopal Church 

Cases (2009) 45 Cal.4th 467, 490.) In any event, the holding of State v. Williams is 

based on consent and the common authority theory. (State v. Williams, supra,

48 Ore.App. at pp. 297-298.) The California Supreme Court in Schmitz concluded that 

consent and the common authority rationale do not apply to a case involving a parole 

search of areas within a car where the parolee is a mere passenger. (Schmitz, supra,

55 Cal.4th at pp. 919-921, 929.)
8 

Baker, supra, 164 Cal.App.4th at p. 1159 [“a purse has been recognized as an inherently 

private repository for personal items”].) 

 On this record, Officer Davis lawfully searched the center console compartment 

based on Herman’s parole status. (Schmitz, supra, 55 Cal.4th at pp. 926-927.) The trial 

court properly denied the suppression motion as to the methamphetamine found in 

defendant’s car. Accordingly, we do not address the Attorney General’s alternate 

argument that the search of defendant’s car was a search incident to arrest. 

B 

 Citing Terry, defendant argues that the pat search by Officer Davis violated the 

Fourth Amendment because, under the circumstances present, Officer Davis could not 

have reasonably believed defendant was armed and dangerous. We agree that the pat 

search cannot be justified under Terry. 

 Under Terry, Officer Davis may subject defendant to a pat search for weapons 

only if there were specific and articulable facts which, taken together with rational 

inferences from those facts, would lead a reasonably prudent person in the circumstances 

to believe that defendant may be armed and dangerous. (Arizona v. Johnson, supra, 555 

U.S. at pp. 326-327 [172 L.Ed.2d at p. 700]; Ybarra v. Illinois (1979) 444 U.S. 85, 92-94 

[62 L.Ed.2d 238, 246-247]; People v. Superior Court (1972) 7 Cal.3d 186, 206; People v. 

Sandoval (2008) 163 Cal.App.4th 205, 212-213; People v. Dickey (1994) 21 Cal.App.4th 

952, 956.) The sole justification for a Terry search is to discover weapons or instruments 

that may be used to assault the police officer. (Adams v. Williams (1972) 407 U.S. 143, 

146 [32 L.Ed.2d 612, 617].) 

 As the trial court found, there were no facts that could have led Officer Davis to 

reasonably believe that defendant might be armed or dangerous. Officer Davis did not 

testify that he suspected defendant might be armed. He did not see defendant make any 

movement which suggested that defendant was trying to hide something or that defendant 

would flee. Defendant complied with the officer’s commands and was respectful. 
9 

Defendant’s refusal to consent to a pat search by itself did not form the basis for 

reasonable suspicion to conduct a pat search. (In re H.H. (2009) 174 Cal.App.4th 653, 

656, 658.) Absent reasonable suspicion that defendant may be armed and dangerous, 

Officer Davis could not conduct a Terry pat search as a preliminary step to searching 

defendant’s car without violating the Fourth Amendment. (United States v. Sakyi (4th 

Cir. 1998) 160 F.3d 164, 168-169; United States v. Starks (D.Mass. 2004) 301 F.Supp.2d 

76, 86-87.) 

 We recognize that traffic stops are “ ‘especially fraught with danger to police 

officers’ ” and we “should not lightly second-guess a police officer’s decision to perform 

a patdown search for officer safety.” (Arizona v. Johnson, supra, 555 U.S. at p. 330 [172 

L.Ed.2d at p. 702]; People v. Dickey, supra, 21 Cal.App.4th at p. 957.) However, Terry 

does not allow a generalized “ ‘cursory search for weapons’ ” or “a frisk for weapons on 

less than reasonable belief or suspicion directed at the person to be frisked.” (Ybarra v. 

Illinois, supra, 444 U.S. at pp. 93-94 [62 L.Ed.2d at p. 247].) There is no evidence in the 

record that defendant might have been armed and dangerous. Because we conclude that 

the pat search did not comport with Terry, we do not consider defendant’s further 

contention that Officer Davis exceeded the bounds permitted under Terry when he 

removed the sandwich bag from defendant’s pocket. 

 The lack of reasonable suspicion that defendant might be armed and dangerous at 

the time of the traffic stop does not, however, require us to set aside the order denying 

defendant’s suppression motion if, as we shall discuss in the next section, the search of 

defendant and the discovery of the cocaine and money in his pants pockets were 

inevitable after Officer Davis found methamphetamine in defendant’s car. 

C 

 We asked the parties to provide supplemental briefs addressing whether the 

doctrine of inevitable discovery -- in particular, whether Officer Davis would have 

lawfully searched defendant’s person incident to an arrest after he found 
10 

methamphetamine in defendant’s car -- applied to authorize the search of defendant’s 

person, and whether the factual basis for applying the inevitable discovery doctrine and 

the search incident to arrest exception to the warrant requirement was fully developed in 

the trial court. The requested supplemental briefs were filed. 

 Defendant argues that we may not consider the doctrine of inevitable discovery 

and the search incident to arrest exception to the warrant requirement because (i) the 

People did not prove that the search of the center console compartment was lawful 

pursuant to Herman’s parole status, and (ii) Officer Davis did not have probable cause to 

arrest defendant after he discovered the sandwich bag in the center console compartment. 

 We have already rejected defendant’s first argument in a prior section and we will 

not repeat that discussion here. We turn to defendant’s second argument, that Officer 

Davis lacked probable cause to arrest defendant. 

 Under the inevitable discovery doctrine, illegally seized evidence may be used if it 

would have been discovered by the police through lawful means, such as during a search 

incident to arrest. (People v. Robles (2000) 23 Cal.4th 789, 800.) “[T]he doctrine ‘is in 

reality an extrapolation from the independent source doctrine: Since the tainted evidence 

would be admissible if in fact discovered through an independent source, it should be 

admissible if it inevitably would have been discovered.’ [Citation.] The purpose of the 

inevitable discovery rule is to prevent the setting aside of convictions that would have 

been obtained without police misconduct. [Citation.]” (Ibid, italics omitted.) “The 

inevitable discovery exception requires the court ‘ “to determine, viewing affairs as they 

existed at the instant before the unlawful search, what would have happened had the 

unlawful search never occurred.” ’ [Citation.]” (People v. Hughston (2008) 168 

Cal.App.4th 1062, 1072, italics omitted.) Although the prosecution did not argue that the 

pat search would have been made incident to defendant’s arrest for transportation of 

methamphetamine (count three) and the Attorney General did not raise the issue on 

appeal, we can consider the application of the inevitable discovery doctrine to this case if 
11 

the factual basis for the doctrine is fully set forth in the record. (People v. Boyer (2006) 

38 Cal.4th 412, 449; Green v. Superior Court (1985) 40 Cal.3d 126, 137-139; People v. 

Watkins (1994) 26 Cal.App.4th 19, 30-31.) That is the case here. 

 Officer Davis decided to conduct a parole search of defendant’s car before he 

searched defendant’s person. There was probable cause to arrest defendant when, 

pursuant to the parole search, Officer Davis uncovered the sandwich bag in the center 

console compartment because the facts known to Officer Davis “ ‘would lead a [person] 

of ordinary care and prudence to believe and conscientiously entertain an honest and 

strong suspicion that’ ” defendant committed the crime of transportation of 

methamphetamine (count three). (People v. Harris (1975) 15 Cal.3d 384, 389; Ornelas v. 

United States (1996) 517 U.S. 690, 696-697 [134 L.Ed.2d 911, 919] [question of whether 

probable cause for arrest existed under the facts is subject to independent appellate 

review].) In particular, the circumstantial evidence and reasonable inferences that may be 

drawn from the evidence established (1) the carrying or conveying (2) of a usable 

quantity (3) of a controlled substance (4) with knowledge of its presence and illegal 

character. (Health & Saf. Code, § 11379; People v. Emmal (1998) 68 Cal.App.4th 1313, 

1316; People v. Meza (1995) 38 Cal.App.4th 1741, 1746.) 

 Defendant’s car was moving prior to the traffic stop. Such movement satisfied the 

element of “transportation.” (People v. Emmal, supra, 68 Cal.App.4th at p. 1317.) 

Regarding the “usable quantity” element, it was undisputed in the parties’ trial court 

moving and opposition papers that the substance found in the center console 

compartment weighed at least 1.62 grams. That quantity was sufficient for an arrest for 

transportation of methamphetamine. (Id. at pp. 1315-1317 [991 milligrams of 

methamphetamine was sufficient to support transportation of methamphetamine 

conviction].) Officer Davis’s opinion about whether 1.62 grams was a usable amount is 

irrelevant. (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1045; People v. 

Limon, supra, 17 Cal.App.4th at p. 539.) Officer Davis subjected the substance found in 
12 

defendant’s car to a NARTEC field test and determined the substance was 

methamphetamine. As for the fourth element of the crime, defendant’s knowledge of the 

presence and nature of the substance found in his car may be inferred from the presence 

of the methamphetamine in his car and the manner in which the methamphetamine was 

packaged and concealed. (Rideout v. Superior Court (1967) 67 Cal.2d 471, 475 

[knowledge of the presence of narcotics and its illegal character may be shown by 

circumstantial evidence, such as the secreting of narcotics in a location accessible to the 

defendants], 477 (dis. opn. of Peters, J.) [“The owner of a car . . . may be reasonably 

supposed to know what is in his [or her] car”].) 

 Pursuant to defendant’s arrest, Officer Davis could have searched defendant’s 

person. (Rawlings v. Kentucky (1980) 448 U.S. 98, 111 [65 L.Ed.2d 633, 645-646]; 

United States v. Robinson (1973) 414 U.S. 218, 235-236 [38 L.Ed.2d 427, 440-441]; 

People v. Avila (1997) 58 Cal.App.4th 1069, 1075; People v. Guajardo (1994) 23 

Cal.App.4th 1738, 1742.) A search incident to arrest would have led to the discovery of 

the cash and bindles of cocaine in defendant’s pockets. 

 Defendant claims the record is unclear as to when Officer Davis tested the 

substance found in his car, and Officer Davis may not have immediately known the 

substance was methamphetamine. We disagree. Officer Davis had training and 

experience in arresting suspects for offenses involving controlled substances. His 

testimony at the suppression hearing supported a reasonable inference that he tested the 

substance found in the center console compartment in the field, after he conducted the 

parole search of defendant’s car. Officer Davis used a NARTEC field testing kit to 

determine that the substance found in defendant’s pants pocket was cocaine before 

placing defendant in handcuffs and in the back of a patrol car. The officer subsequently 

searched defendant’s car and found the substance in the center console compartment. He 

used a similar test used on the cocaine to test the substance found in defendant’s car and 

the substance tested was “Nar-tech positive methamphetamine.” In addition, the 
13 

substance was packaged in a sandwich bag, which Officer Davis testified was a common 

way to package illegal drugs; the bag was concealed in what appeared to be a 

compartment cut into the center console of defendant’s car; defendant was in the 

company of a parolee who had previously been convicted for transportation of cocaine 

base; and Officer Davis suspected that Herman might have passed illegal drugs to 

defendant. The totality of these circumstances provided a reasonable basis for Officer 

Davis to suspect that the substance found in defendant’s car was a controlled substance. 

There does not appear to be any further evidence that could have been introduced to show 

that Officer Davis did not have probable cause to arrest defendant and that, upon 

defendant’s arrest, Officer Davis would not have inevitably discovered the cocaine and 

money in defendant’s pants pockets. 

 Accordingly, even if the trial court erred in finding that the pat search was justified 

by a concern for officer safety, the trial court properly denied the motion to suppress the 

evidence found in defendant’s pants pockets because such evidence would have 

inevitably been discovered in the course of a search incident to defendant’s arrest for 

transportation of methamphetamine. 

II 

 Defendant next claims he was denied a trial on the allegation that he had a prior 

serious felony conviction (a prior strike) within the meaning of Penal Code section 

1192.7, subdivision (c), and the trial court did not find beyond a reasonable doubt that the 

prior strike allegation was true. 

 The Attorney General says the record is unclear as to whether a court trial was 

held on the prior strike allegation after defendant and the People waived a jury trial for 

that issue. The Attorney General requests remand for the trial court to clarify whether it 

made a finding on the prior strike allegation. 

 A defendant has a right to a trial on the truth or falsity of the allegation that he or 

she had suffered a prior strike conviction. (Pen. Code, §§ 1025, 1158.) “Whenever the 
14 

fact of a previous conviction of another offense is charged in an accusatory pleading, and 

the defendant is found guilty of the offense with which he is charged, . . . the judge if a 

jury trial is waived, must unless the answer of the defendant admits such previous 

conviction, find whether or not he has suffered such previous conviction.” (Pen. Code, 

§ 1158.) 

 There is no minute order or reporter’s transcript of a trial on the prior strike 

allegation or of a finding by the trial court on that allegation. There is also no record that 

the trial court admitted any documents to prove a prior juvenile adjudication, criminal 

conviction, or prison term. (Cf. People v. Pierson (1969) 273 Cal.App.2d 130, 134 

[finding no prejudice where the record was ambiguous about whether the trial court made 

a separate finding on strike priors, but where the trial court received into evidence 

documents which proved the priors and the defendant stipulated he was the person named 

in those documents].) However, the record indicates the parties and the trial court 

proceeded as if the trial court had conducted a trial on the prior strike allegation and 

found such allegation to be true. 

 Because we cannot discern whether defendant was afforded a trial on the prior 

serious felony conviction allegation and whether the prosecution proved beyond a 

reasonable doubt that the prior strike allegation was true, we will vacate the judgment 

regarding the prior strike allegation and remand the matter. 

III 

 Defendant also asserts that he was denied due process of law because the trial 

court sentenced him without obtaining a probation report. The Attorney General agrees 

that the lack of a probation report rendered defendant’s sentencing fundamentally unfair 

and that an updated probation report must be ordered for resentencing. 

 “At the time of the . . . verdict of guilty of any person over 18 years of age, the 

probation officer of the county of the jurisdiction of said criminal shall, when so directed 

by the court, inquire into the antecedents, character, history, family environment, and 
15 

offense of such person, and must report the same to the court and file his report in writing 

in the records of such court.” (Pen. Code, § 1203.10.) “No court shall pronounce 

judgment upon any defendant, as to whom the court has requested a probation report 

pursuant to Section 1203.10, unless a copy of the probation report has been made 

available to the court, the prosecuting attorney, and the defendant or his or her attorney, 

at least two days or, upon the request of the defendant, five days prior to the time fixed by 

the court for consideration of the report with respect to pronouncement of judgment. The 

report shall be filed with the clerk of the court as a record in the case at the time the court 

considers the report.” (Pen. Code, § 1203d.) 

 The trial court requested a probation report but no report was received. It 

sentenced defendant without the benefit of a probation report. The judgment as to 

sentencing must, therefore, be vacated and the cause remanded for resentencing. 

(People v. Conners (2008) 168 Cal.App.4th 443, 456-457 [granting remand for 

resentencing and requiring an updated probation report where the probation report 

considered by the trial court was inadequate and “was, in effect, no probation report at 

all”].) On remand, defendant will be entitled to a current probation report, including 

information regarding his conduct while incarcerated during the pendency of this appeal. 

(Id. at p. 457.) 

DISPOSITION 

 The judgment regarding the prior strike allegation is vacated, and the matter is 

remanded to the trial court. If the trial court conducted a trial and found the prior strike 

allegation to be true, the trial court shall reinstate its judgment. Otherwise, the trial court 

shall conduct a trial limited to whether the prior strike allegation is true. 

 The judgment regarding sentencing is also vacated, and the matter is remanded to 

the trial court for resentencing. The trial court is directed to obtain a current probation 
16 

report which includes information about defendant’s conduct while incarcerated during 

the pendency of this appeal. 

 In all other respects, the judgment is affirmed. 

 MAURO , J. 

We concur: 

 ROBIE , Acting P. J. 

 BUTZ , J.