People v. McClure

Discussion

Probation Report

It is undisputed that defendant’s commission of the subject offenses while on parole rendered him legally ineligible for probation. (Pen. Code, § 1203.085.)^[1]

Penal Code section 1203 provides that “in every case in which a person is convicted of a felony and is eligible for probation ... the court shall immediately refer the matter to the probation officer____” (Pen. Code, § 1203, subd. (b), italics added.) The mandated referral was interpreted in People v. Rojas (1962) 57 Cal.2d 676 [ 21 Cal.Rptr. 564 , 371 P.2d 300 ], to apply “on each occasion of passing judgment,” the court concluding 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.” (Id., at p. 682, italics ours.)

The court also noted that the overall purpose of probation—the reformation and rehabilitation of a deserving defendant—would be better accomplished by requiring a current probation report detailing the defendant’s recent conduct. (People v. Rojas, supra, 57 Cal.2d at p. 683.)

But, as underscored, defendant was not eligible for probation, a pivotal circumstance distinguishing the conclusion reached in Rojas, which itself implicitly recognized the need for a current report only where the accused was otherwise eligible for probation. (57 Cal.2d at p. 682.) Indeed, in 1982, the Legislature added subdivision (g) to section 1203 to clarify that when the defendant “is not eligible for probation, the judge may, in his discretion, refer the matter to the probation officer____” (Stats. 1982, ch. 247, § l,p. 795, italics added.)^[2]

In short, defendant’s status of ineligibility for probation would appear to foreclose any meaningful application of the policy reasons underlying the holding in Rojas. However, intermediate appellate decisions are in conflict. In People v. Brady (1984) 162 Cal.App.3d 1 [ 208 Cal.Rptr. 21 ] (Fifth District), the court held that “upon remand for resentencing, even when the defendant is ineligible for probation, if the resentencing court has discretion to alter the length of the defendant’s imprisonment, it must obtain a new, updated probation report, including information regarding the defendant’s behavior while incarcerated during the pendency of any appeal, before proceeding with the resentencing.” (Id., at p. 7; accord People v. Smith (1985) 166 Cal.App.3d 1003 , 1009 [ 212 Cal.Rptr. 737 ] [same district].) Although Brady was initially followed by the Third District (People v. Foley (1985) 170 Cal.App.3d 1039 , 1045-1050 [ 216 Cal.Rptr. 865 ]), that court has since disavowed Brady’s determination that probation referral is mandatory rather than discretionary where the defendant is otherwise ineligible for probation. (People v. Webb (1986) 186 Cal.App.3d 401 [ 230 Cal.Rptr. 755 ], review den. Jan. 21,1987.) Focusing on the explicit language of subdivision (g) of section 1203, the Webb court concluded that “when the defendant is ineligible for probation, the matter is still statutorily entrusted to the discretion of the trial court. The statute could not be more clear and unambiguous and in the absence of constitutional infirmity, and none appears, we must give effect to the legislative intent. (People v. Magill (1986) 41 Cal.3d 777 , 779 [ 224 Cal.Rptr. 702 , 715 P.2d 662 ]; People v. Wright (1979) 92 Cal.App.3d 811 , 813 [ 154 Cal.Rptr. 926 ].) Accordingly, we are constrained to disagree with the decision in Brady, and to hold that when a defendant is ineligible for probation a referral to the probation officer is not mandatory but is a matter committed to the sound discretion of the sentencing court.^[2] ” (186 Cal.App.3d at p. 409.)^[3]

We find the reasoning and conclusion in Webb persuasive and accordingly adopt that analysis herein. On the circumstances shown by the record herein, the decision whether to obtain a supplemental probation report lay within the discretion of the court. And no abuse of that discretion is manifested. Defendant made no request for a supplemental report; nor is there any indication that a current report would have provided the court with any essentially useful information for purposes of resentencing. The only question at resentencing was whether a full-length consecutive term should be imposed. The trial court had obviously reviewed and considered the transcript of the original sentencing in light of our intervening decision and remand. No error appears.

Sentencing^[4]

The judgment is affirmed.

Elkington, J., and Newsom, J., concurred.