Filed 2/27/13 P. v. Gooch CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 Lo s Angeles County. Alex Ricciardulli, Judge. Reversed and remanded with directions. Helen S. Irza, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistan t 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 stalki ng, dissuading a witness by force or threat and contempt of court. The convictions occurr ed at Gooch’s second trial; at the first trial the jury deadlocked on all counts, and a mistrial was d eclared. On May 9, 2008, the

Santa Barbara trial court sentenced Gooch to an aggregate state prison term of six years, suspended execution of the sent ence, and granted him five ye ars 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, B 220982) [nonpub. opn.].) Because Gooch was ordered into the Delancey Street Fou ndation, a Los Angeles residential treatment program, the case was transfe rred to Los Angeles County fo r probationary supervision.

Gooch entered the residential treatm ent 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 elect ronic contact with her. ( Ibid. ) Thereafter, the Los Angeles trial court revoked his probatio n and imposed the previously stayed six-year state prison sentence after finding Gooch had caused an instant messagin g 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 reve rsed the order revoking probation and imposing the previously stayed sentence af ter 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 affi rmed the judgment in the first appeal ( People v. Gooch , Aug. 4, 2009, B209105) and dism issed 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 th e record in that case. (Evid. Code, §§ 452, subd. (d), 459.) At the completion of the October 6, 20 11 hearing on remand, the trial court reinstated Gooch’s probation on the same terms and cond itions “nunc pro tunc to November 4, 2009,” the date his probatio n was formally (as opposed to summarily),

revoked. Gooch appealed, cont ending the trial court violated his constitutional rights in denying his request for a supplemental probati on report before deciding to reinstate him on probation, and abused its di scretion in denying Gooch’s a lternative request to modify the conditions of probation. Gooch also seeks to have the minute order of the October 6, 2011 hearing amended to re flect that his probation expires on May 8, 2013.

PROCEDURAL BACKGROUND

At the hearing on remand, Gooch appeared with counse l 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, ha ving completed his state prison sentence. Defense counsel requested that the tria l court order a supplemental probation report pursuant to Penal Code section 12 03 before determining what the terms of Gooch’s reinstatement on prob ation 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 pr obation report was unnecessary in view of the appellate court’s ruling.

Counsel then asked the trial court to dele te the conditions of probation that Gooch complete a residential alcohol and drug treat ment program and submit to periodic testing and reporting as required by the probation department. Counsel argued these conditions were “inappropriate” because Gooch had se rved his state prison sentence and was currently employed as the manager of a reside ntial alcohol and drug treatment facility.

Counsel maintained that if these conditions were not deleted, Gooch would be4 “essentially on the hook for anot her year of residential treatment.” Counsel provided the court with a letter from Gooch’s employer, Cw est Sober Living, in which the owner, Max Russo, described Gooch’s duties in overseei ng the activities of the facility’s twelve residents, and expressed pleasure with Gooch’s job performance. In denying counsel’s request for a modifi cation of Gooch’s probation, the trial court stated, “I think that the original te rms and conditions, includi ng 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 wa s in state prison.” The trial court’s oral pronouncement at the October 6, 2011 hearing properly v acated the probation revocation and imposition of the state prison sent ence 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 re sulted in an uninforme d decision by the trial

court. When a defendant is eligible for pr obation, he is ordinarily entitled to a supplemental probation report whenever a ne w sentence will be pr onounced, 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 rev oking 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 cleri cal 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.) Acco rdingly, we order the minute order corrected to reflect the trial court’s order revoking probation wa s vacated.5 679-682 [“We can only conclude that the Le gislature intended, with each contemplated pronouncement of judgment and the concurrent determination of whether to grant or deny probation where an accused is otherwise elig ible, that a defendant is entitled to have a current report before the trial judge” (cons truing 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 hi s or her resentencing hearing, the defendant is entitled to an updated probati on report. (See also Cal. Rule s of Court, rule 4.411(c), Advisory Com. com. [“Subdivision (c) is ba sed 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.Ap p.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 conclude d the decision to order a current probation report on remand for resentencing when a defendant is ineligib le for probation was within the trial court’s discretion, but where the defendant’s request of an updated report suggests it will reveal mitigati ng 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 orde r 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 or iginal 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 whet her probation was appropriate, and if not, what sentence to be imposed. (See People v. Mercant (1989) 216 Cal.App.3d 11 92, 1195 [supplemental report required where “by reversing a defe ndant’s sentence, the court restores the defendant to his original position as if he had never been sentenced.”].) The trial court, however, did have significa nt alternatives to consider on remand. Although respondent asserts, and the trial co urt 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 te rmination of probation6 (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 entir e prison term as a result of the order which we reversed. Of these, co unsel requested modification, which the court

declined to do. In light of these available choices, th e significant time that had passed since the initial sentencing proceedings, and Gooch’s a pparent 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 overa ll purpose and objectives of the law relating to probation are more comple tely accomplished by requiring current investigations and reports.”]; People v. Tatlis, supra , 230 Cal.App.3d at p. 1273.) Gooch’s reasons for seeking a suppleme ntal 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 se rved his state prison sentence, achieved sobriety and secured gainful employment, no information was before the court regarding any program in which Gooch had participat ed while in prison that resulted in his achieving sobriety. Thus, although the cour t’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 discre tion, could have disc harged Gooch from the remaining term of probation in light of th e 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 e ffect, Gooch has been left to fulfill all of the terms of probation as well as incarceration, because his probation wa s 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.