Filed 2/27/13 P. v. Gooch CA2/7 

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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 Los Angeles 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. 

_______________________ 
2

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 residential alcohol and drug treatment 

program.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. (People v. Gooch (April 19, 2011, B220982) 

 

1 Gooch filed an appeal from the 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)). 
3

[nonpub. opn.].) We take judicial notice of the record in that 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 constitutional rights in 

denying 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. The 

trial court 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 
4

“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. 2

 

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, 

 

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; People v. Mesa (1975) 14 Cal.3d 466, 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. 
5

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 . . . .”]; 

People v. Cooper (1984) 153 Cal.App.3d 480, 482-483; People v. Mariano (1983) 144 

Cal.App.3d 814, 821-822). Moreover, in People v. Tatlis (1991) 230 Cal.App.3d 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.”].) 

 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 
6

(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.”]; 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.

3

 

3 The trial court, in exercising its discretion, could have discharged Gooch from the 

remaining term of probation in light of the fact that he had served the term of 

imprisonment that was the alternative to probation (See, e.g. People v. Latham (1988) 

206 Cal.App.3d 27, 29). In effect, Gooch has been left to fulfill all of the terms of 

probation as well as incarceration, because his probation was revoked without sufficient 

evidence. 
7

DISPOSITION 

 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.