Information Relied On, Presentence Report
Category > Information Relied On, Presentence Report
Updated 4/13/2024Prosecution’s request for inmate’s c-file to prepare for resentencing was overbroad.The prosecution subpoenaed defendant’s prison “c-file” to prepare for the resentencing under Penal Code section 1172.75. The trial court erred in denying defendant’s motion to quash because the request was overbroad and sought privileged information.id: 28235
Updated 2/7/2024The trial court erred at the resentencing hearing by finding it couldn’t consider defendant’s postjudgment efforts in prison.Defendant’s case was remanded for resentencing to allow the trial court to exercise its discretion to dismiss a firearm enhancement. The trial court prejudicially erred at the resentencing hearing by finding it lacked discretion to consider defendant’s postjudgment rehabilitative efforts in prison.id: 27135
Updated 2/7/2024Case was remanded where the record did not show the court understood it was required to consider defendant’s military related PTSD at sentencing.Penal Code sections 1170.9 and 1170.91 obligates a court to consider a defendant’ service-related mental health issues, including PTSD, as a mitigating factor when considering sentencing options. Relevant evidence was presented at defendant’s sentencing, but the record did not show the court understood it was required to consider it. The case was remanded for a new sentencing hearing. id: 27161
The trial court erred in resentencing the 16 year-old convicted of murder to another LWOP term without considering her conduct while in prison.In 1996, defendant was convicted of a murder committed when she was 16 years old and sentenced to life in prison without the possibility of parole. Based on changes in the law, the trial court vacated the LWOP sentence and conducted a new sentencing hearing in 2015. The court again imposed the LWOP term after the resentencing. However, the court erred at that hearing by refusing to consider evidence of defendant’s conduct in prison following the original sentence.id: 24475
The sentencing court cannot condition a defendant's probation on the payment of certain fees and costs.The trial court erred by conditioning defendant's probation on the payment of certain fees and costs. The remedy was to simply order their payment as part of the judgment of the case. id: 21624
The trial court erred in sentencing defendant before the supplemental probation report had been prepared and reviewed.Prior to sentencing, the trial court ordered a new probation report since the only other report was prepared before trial and lacked substantial information. However, the new report was not received prior to sentencing. The trial court erred in failing to continue the sentencing hearing until the supplemental report was prepared and reviewed by the parties. The matter was remanded for resentencing. id: 20696
Clerk erroneously recorded in the minute order that defendant pled guilty to three counts when he had only pled guilty to two. Defendant pled no contest to two counts but the clerk's minutes reflected a third conviction, and the court sentenced the defendant on the third count. The oral pronouncement of judgment prevailed over the minute order and abstract of judgment were ordered corrected to reflect two counts of conviction. The sentence for the third count to which defendant did not plead no contest was stricken.id: 19385
Appellant was entitled to a current probation report even when the delay was caused by his failure to appear.Appellant failed to appear for his sentencing date and did not appear until almost three years later. Although appellant caused the delay by failing to appear, that unlawful action should not have deprived him from the statutory right to a current probation report. The supplemental probation report should have been prepared before appellant was sentenced.id: 13403
Trial court has discretion to obtain a probation report before sentencing a defendant who is ineligible for probation.The decision whether to obtain a probation report before sentencing a defendant ineligible for probation is within the trial court's discretion. Failure to obtain a full probation report in the instant case was not an abuse of discretion since appellant was ineligible for probation, a report would have been useful only with regard to the determination as to length of the defendant's sentence and the court heard arguments from counsel on the aggravating and mitigating factors.id: 13419
Court erred in denying defendant's request at the resentencing hearing for an updated probation report.The sentencing court erred prejudicially and deprived defendant of due process of law in denying his request at the resentencing hearing for a current, or supplemental probation report. The sole reason given for denying the defendant's request was that he was ineligible for probation. More importantly, the sentencing judge's statement that she did not intend to change her mind and sentence any differently than she had originally suggests the judge was not open to the possibility there might now be mitigating factors to be weighed in the balance, and thus not inclined to give the possibility any discretionary consideration.id: 13409
Court erred in considering an uncharged perjury offense at sentencing.Defendant claimed the court erred in commenting at sentencing that it believed defendant had testified falsely at trial. He argued his supposed perjury was not a proper sentencing consideration because it conflicted with his acquittal by the jury, and it constituted punishment for an uncharged perjury offense. The jury's acquittal on the charge did not preclude a finding that defendant testified falsely at trial. However, to give a harsher sentence because of an uncharged offense for which there is no conviction violates due process. The error was harmless where it was not likely defendant would have been given a more lenient sentence had this factor been excluded from the sentencing calculus.id: 13408
Harvey rule does not apply to child molest cases but the court misadvised defendant prior to the guilty plea that it did apply.Defendant pled guilty to three counts of committing lewd acts on children. He argued that both the court and the prosecutor violated <i>People v. Harvey</i> (1979) 25 Cal.3d 754, which held that a court may not consider the facts underlying charges dismissed as part of a plea bargain to aggravate or enhance a sentence. However, the <i>Harvey</i> rule did not apply since a defendant has no reasonable expectation about dismissed counts in Penal Code section 288 cases inasmuch as the court is required by section 288.1 to order a report on his mental fitness for probation. However, the judgment was reversed because the court advised defendant prior to the plea that the <i>Harvey</i> rule applied.id: 16122
Court erred in denying request to continue sentencing where probation report was delivered on the date of the hearing and defendant was not wholly ineligible for probation.Defense counsel made a timely request for a continuance to respond to the probation report, which he received on the date of the sentencing hearing. The report should have been delivered five days earlier. While defendant was presumptively ineligible for probation, he was not wholly ineligible. The failure to grant the requested continuance rendered the sentencing fundamentally unfair. The matter was remanded for resentencing.id: 16119
The trial court's reliance on documents which contained misrepresentations required remand.When denying probation and sentencing defendant to prison, the trial court relied on sentencing documents (a probation report, two psychological reports, and a letter from a prison administrator) which contained material, factual misrepresentations. The inaccuracies in the sentencing documents required that the sentence and probation denial be vacated, and the matter remanded.id: 18173
Updated 3/19/2024Prosecutor’s “statement of view” may include police reports, transcripts, and DA investigative reports.Penal Code section 1203.01 provides that after the judgment, the judge and prosecutor may file a “statement of their views” about defendant and the crime in order to create a postjudgment record for the benefit of the CDCR. Contrary to the defendant’s claim, the trial court did not err by failing to strike certain materials from the prosecutor’s statement, including police reports, preliminary hearing transcripts and district attorney investigative reports.id: 28222
Defendant forfeited the issue of having his original sentencing judge consider his petition for resentencing under the Three Strikes Reform Act. Defendant who was seeking a resentencing under the Three Strikes Reform Act argued he was entitled to have the original sentencing judge consider his petition. However, he forfeited the issue by not objecting in the trial court. Defendant also forfeited the issue of failure to provide a supplemental probation report for purposes of the petition. id: 23888
Defendant seeking resentencing under the Three Strikes Reform Act was not entitled to a determination of “risk of danger” under the new Prop 47 standard. The trial court denied defendant’s request for resentencing under the Three Strikes Reform Act after finding he posed an unreasonable risk to public safety. Contrary to defendant’s claim, he was not entitled to a determination of “unreasonable risk of danger” using the standard recently developed in Proposition 47. id: 23922
The trial court was not required to obtain a supplemental probation report before denying the Prop 36 petition.Defendant argued the trial court erred by failing to obtain a supplemental probation report before denying his petition for resentencing under the Three Strikes Reform Act. While the trial court has the authority to obtain a supplemental probation report to determine whether resentencing the defendant would pose a risk of danger to the public, it is not required to do so. id: 23927
The failure to order a supplemental probation report was harmless as was a factual inaccuracy the court did not consider.The trial court may have erred by not ordering a supplemental probation report more than a year after the original report but the error was harmless where there was no reasonable chance that defendant would have received a better result with an updated report. Moreover, even though there was an error in the report regarding a nonexistent prior conviction, the court expressly stated it was basing its decision on another factor.id: 23122
The trial court did not err by refusing to allow witnesses’ unsworn statements at the sentencing hearing.The trial court did not err by refusing to let the juvenile convicted of murder present mitigating evidence from family members at sentencing. However, defense counsel did not seek to call witnesses at the hearing, but only asked that two witnesses be allowed to address the court. The trial court had the discretion to deny the request for unsworn statements.id: 22578
Defendant was not entitled to a new probation report where the trial court corrected its earlier unauthorized sentence. In 2007, the trial court imposed an unauthorized sentence of four years. Three years later, the trial court corrected the unauthorized sentence by imposing the proper six year term. The trial court did not err by failing to obtain a current probation report as this was different from the cases discussing a resentencing following an appeal.id: 22457
The court did not err in resentencing defendant without the benefit of a supplemental probation reportThe trial court did not abuse its discretion in resentencing defendant without first obtaining a supplemental probation report and defense counsel was not ineffective in failing to request such a report.id: 16123
The sentencing court may consider defendant's criminal history based solely on the information provided in the probation report.The trial court imposed the upper term due, in part, to defendant's prior offenses. Defendant argued that factual support for these offenses had to come from sources other than the probation report. However, there is no legal reason why defendant's criminal history must be established by evidence separate and apart from the probation report.id: 20059
Defendant waived any error in failing to obtain a supplemental probation report by not raising the issue in the trial court.Defendant argued the trial court erred in failing to obtain a supplemental probation report before resentencing him. However, any error was waived by the failure to request the report in the trial court, especially where defendant personally objected to a continuance for any purpose.id: 16120
Defendant waived the right to object to the absence of a supplemental probation report by failing to do so in the trial court.Defendant argued the trial court was required to order a new probation report before resentencing a defendant. However, defendant waived the right to object to the absence of a supplemental report by failing to do so in the trial court.id: 16121
The juvenile court did not err in conducting the dispositional hearing without the most recent probation report where the court had previously received three written reports and was familiar with the facts.The juvenile court had received three written probation reports and one oral summary in the preceding six months. The court was aware of all of the underlying facts when it acted. Counsel for the minor did not ask to continue the disposition hearing until the report arrived, and obviously felt comfortable proceeding with the favorable oral report. The juvenile court did not err in conducting the hearing without receiving the most recent probation report.id: 16124
An updated probation report was not required for resentencing where the court had no discretion to alter the length of defendant's imprisonment.Appellant argued error in that no probation report was prepared following the appellate court's previous remand for resentencing. An updated probation report is required even if defendant is ineligible for probation if the sentencing court has discretion to alter the length of defendant's imprisonment. In the instant case, defendant was sentenced to an indeterminate life term under Penal Code section 667.7 and the sentencing court was without discretion. Failure to have a probation report prepared was therefore not erroneous.id: 13402
Arresting officer's letter to the sentencing judge did not constitute outrageous government conduct justifying dismissal of the charges.A police officer improperly wrote a letter directly to a trial judge urging that appellants receive a severe sentence. While such conduct was improper, it failed to constitute outrageous government conduct justifying dismissal under Penal Code section 995.id: 13404
Court did not err in referring to previous arrest reports at the time of sentencing.Appellant argued the trial court erred at sentencing by considering arrest reports of five previous arrests as he did not have an opportunity to challenge the reports. However, arrest reports are not statements in aggravation and there is therefore no four day notice requirement.id: 13405
Court did not err in refusing defendant sex offender's request for ancillary defense services of a psychiatrist where the court had no intention of granting probation.Defendant argued he was entitled to a report of reputable psychiatrist or psychologist pursuant to Penal Code section 288.1, and the court's refusal to order such a report prior to deciding whether or not to grant defendant probation denied him equal protection of the law. However, where the court has no intention of granting probation, and the record supports such a denial of probation, a section 288.1 report is not mandated. Moreover, defendant's request for two weeks to seek independent medical or psychiatric examination did constitute a requisite showing of need for the appointment of a psychiatrist.id: 13406
Court did not improperly consider defendant's perjury at trial as an aggravating factor when imposing sentence.In sentencing, consideration of a defendant's perjury at trial is limited to its reflection upon the character of the defendant and his or her prospects for rehabilitation. Defendant argued a sentencing court using defendant's perjury as an aggravating factor must expressly state its reasoning on the record. However, unless the record affirmatively shows the lower court used the fact of defendant's perjury for an impermissible purpose, the reviewing court should presume it was used for a permissible purpose.id: 13407
Defendant waived his right to a supplemental probation report where counsel did not object to proceeding with resentencing without the report and argued from the prior report.The trial court resentenced defendant on the commercial burglary after the assault conviction was reversed. Appellant argued the trial court was required to obtain a current probation report. While there was no express waiver by either defendant or his attorney, counsel voiced no objection to proceeding with the resentencing without a supplemental probation report and specifically stated there was no legal cause why judgment could not be pronounced. Moreover, during the hearing, counsel relied on the prior probation report and argued for imposition of the middle term. Such conduct constituted a waiver of the right to a supplemental probation report.id: 13410
It is not error for a sentencing court to consider unpleaded prior felony convictions when determining eligibility for probation under Penal Code section 1203, subdivision (e)(4).The probation officer's presentence report stated that appellant previously had been convicted of three felonies. The report stated that pursuant to Penal Code section 1203, subdivision (e)(4), appellant was eligible for probation only under unusual circumstances because of the prior convictions. Appellant argued the court erred in applying section 1203, subdivision (e)(4) because the prior convictions were not pleaded and proved beyond a reasonable doubt. However, in the context of a discretionary decision to grant or deny probation, prior felony convictions are sentencing facts for the court to assess and they need not be pleaded and proved to the trier of fact.id: 13411
Juvenile court's imposition of a previously stayed commitment to a county institution was the product of particularized consideration and was not automatic.Defendant argued the juvenile court erred in automatically imposing the previously stayed commitment to Boys Ranch without a complete reassessment of his current circumstances. However, the sentence was imposed after an analysis of the dispositional evidence, defendant's criminal history, his history on probation, his progress in school and his home situation. Although the juvenile court's ultimate disposition was identical to the commitment previously stayed, there is nothing to preclude the juvenile court from deciding that a previously-stayed commitment is an appropriate disposition.id: 13412
Presentence report need not contain actual letters written on behalf of defendant.Appellant argued that the probation department received eleven letters urging probation and that in violation of California Rules of Court, rule 419(a)(7), the department failed to attach any of these letters to the presentence report. Contrary to appellant's contention, rule 419(a) does not require the presentence report to include actual letters written on behalf of defendant. The officer fulfilled the rule 419(a)(7) requirements by summarizing the contents of written statements from interested persons in his own presentence report.id: 13413
Sentencing court did not err in relying on defendant's statement to the psychologist that he knew the narcotics were in the vehicle.Defendant was convicted of transporting narcotics and was sentenced to the upper term. He argued the court's reliance on his statement to the psychologist that he was aware of the narcotics in the vehicle violated the dual use of facts prohibition. According to defendant, his awareness of wrongdoing was the same as intent to do wrong <197> which is an element of the offense. However, the statement was used in aggravation to rebut the inference that defendant played a minor role in the crimes and to the extent he was downplaying his role in the crimes such fact clearly reflected a lack of remorse, which may properly be considered in aggravation. Moreover, defendant argued his lack of education prevented him from being a knowing participant in the sophisticated drug operation and his statement showed he was at least criminally sophisticated.id: 13414
Sentencing court did not err in considering other allegations of child molest dismissed under the plea bargain where there was no Harvey waiver.Defendant pled guilty to one count of child molest under Penal Code section 288, subdivision (a). The prosecutor dismissed the other counts and defense counsel specifically stated there would be no waiver pursuant to <i>People v. Harvey</i> (1979) 25 Cal.3d 754, with respect to those counts. Defendant argued the trial court improperly considered two other alleged incidents of child molestation when it imposed sentence. However, <i>Harvey</i> does not apply in this case because in granting or denying probation in a section 288 case, one of the primary concerns is the defendant's mental condition. To limit the expert preparing the psychiatric report to the specific facts of the offense would hamper the expert and the sentencing court.id: 13415
Sentencing court did not err in considering the victim impact statement contained in the probation report.The trial court did not err in considering the victim impact statement contained in the probation report when sentencing appellant. This was not the sentencing phase of a capital murder trial where such evidence is prohibited. Moreover, the court did not expressly rely on the effects of the victim's death upon his family when imposing sentence.id: 13416
The court's error in failing to obtain and consider a supplemental probation report before resentencing was waived by failure to object.There was no dispute defendant was eligible for probation, and therefore was entitled to a supplemental probation report before resentencing. However, there was no request for a supplemental report, no objection made to the second sentencing proceeding on that ground, and no indication from either defendant or his counsel at the hearing that they were unready to proceed. Accordingly, the requirement of a supplemental probation report was waived. Contrary to defendant's claim this was not a jurisdictional error which could not be waived by failure to object.id: 13417
Trial court did not err in failing to order and consider an updated probation report before imposing a new sentence.<i>People v. Brady</i>, (1984) 162 Cal.App.3d 1, held that the preparation of a supplemental probation report is required on remand even when the defendant is completely and unalterably ineligible for probation if the sentencing court has discretion to alter the length of defendant's imprisonment. However, the <i>Brady</i> rule cannot be squared with Penal Code section 1203, subdivision (g), which expressly gives the trial court discretion to refer the matter to the probation officer for investigation and report on facts relevant to sentencing when the defendant is ineligible for probation. Because <i>Brady</i> incorrectly strips the trial court of discretion it will no longer be followed.id: 13418
Trial court was entitled to review admissions of the defendant in the probation report regarding the residential nature of his prior burglary conviction.The trial court did not improperly consider a probation officer's report from the prior conviction file to determine he had burglarized an inhabited dwelling. The trial court found the statements to the probation officer constituted an admission. Defendant had an opportunity to dispute his purported admission in the prior proceeding. He was also entitled to present rebuttal evidence before the court and did not. He was given adequate opportunity to challenge the evidence against him.id: 13420
Probation officer may not be cross-examined at sentencing hearing regarding probation report.Appellants argued they should have been allowed to cross-examine the probation officer at the sentencing hearing concerning her sentencing recommendations. The trial court correctly held such procedure to be improper.id: 13324
Court properly imposed the greater term pursuant to an agreement where the defendant failed to appear at the sentencing hearing.In a plea bargain, if the defendant agrees to a specific greater term to be imposed if he should fail to appear for sentencing, and to a specified lesser term if he does appear, the trial court may impose the greater term if he fails to appear at the sentencing hearing without justification.id: 11483
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245