People v. Brady

• Decision Date: 21 November 1984
• Docket Number: Cr. N
• Citation: 162 Cal.App.3d 1,208 Cal.Rptr. 21
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. George Leon BRADY, Defendant and Appellant. 5o. F003225.

Page 21

208 Cal.Rptr. 21

162 Cal.App.3d 1

The PEOPLE, Plaintiff and Respondent, v. George Leon BRADY, Defendant and Appellant.

5 Cr. No. F003225.

Court of Appeal, Fifth District, California.

Nov. 21, 1984.

[162 Cal.App.3d 2] Quin Denvir and Frank O. Bell, Jr., State Public Defenders, and Mark L. Christiansen, Chief Asst. State Public Defender, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Eddie T. Keller and Raymond L. Brosterhous II, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

THE COURT ^*

Defendant appears before us for the second time, again challenging the procedure followed by the trial court in sentencing him following his conviction of multiple counts of robbery with findings that he had personally used a firearm and had served a prior prison term. In the present appeal, defendant makes no attack upon the underlying convictions. In our previous opinion, we recited the trial court's stated justification for imposing the aggravated term as to the robbery for which defendant was sentenced:

" 'As a result of the nature of the offense, the multiple victims that are involved, the great bodily injury, the fact that the victims are particularly vulnerable in this matter, the Court selects the aggravated term of five years as to each Defendant [sic ] as the base term.' "

We remanded for resentencing, holding that (1) " 'the nature of the offense' " was an improper aggravating factor, because it was either a dual use of facts, relating to the firearm use for which an enhancement had been imposed, or because the court failed to refer with sufficient clarity to any other gun use in the case; (2) the trial court's reference to great bodily injury was unsupported factually, and if it meant threat of such injury it should have said so, and specified that it was not utilizing action which would have involved a prohibited dual use of facts; and (3) the victims were not particularly vulnerable.

On remand, the trial court again imposed the upper term of five years as to the robbery, stating:

"The Court feels that the aggravated term is the proper term.

"There were multiple victims, the extensive criminal history of the Defendant [sic ], excluding the enhancement of felonies in this matter. The fact that the Court is, the weapon was fired at, not during the commission of the robbery but after the, and when the officers were present, also indicates to the Court that this is a proper term.

"The mitigating factors, if any, are not enough in the Court's opinion to reduce the aggravation, so the Court will impose the aggravated term of five years ...."

Defendant contends in this appeal that the trial court erred in refusing his request to order a current probation report before resentencing, in failing to consider any mitigating factors, and in failing to comply with our order, contained in our previous opinion, to increase his presentence custody credits from 72 to 73 days. The People argue that no new probation report was necessary, and that any error in that regard was harmless since the trial court (according to the People) "intends to impose a nine-year [sic ] sentence even on repeated remand," and that the trial court merely rejected any mitigating factors, rather than ignoring them. The People concede that defendant is entitled to an additional day of presentence custody credit.

There is a split in authority in the Court of Appeal with regard to the necessity that a trial court order a current probation report following remand of a matter for resentencing. In People v. Cooper (1984) 153 Cal.App.3d 480, 200 Cal.Rptr. 317, the First Appellate District recently held that where a defendant was convicted of assault with a deadly weapon, sentenced to the aggravated term, then remanded for resentencing (because the trial court had erroneously found certain factors in aggravation), the trial court was required to obtain a current probation report so that it could be determined whether the defendant's conduct in prison during the pendency of his appeal or a psychiatric report would demonstrate mitigating factors which would convince the resentencing court not to reimpose the upper term. (Id., at pp. 482-484, 200 Cal.Rptr. 317.) However, in People v. Savala (1983) 147 Cal.App.3d 63, 195 Cal.Rptr. 193, the Third Appellate District held that on remand for resentencing, a trial court could impose an aggravated term even though the original sentence had been for the middle term, so long as the total term of imprisonment did not increase after remand, and in a footnote, rejected the defendant's claim that the resentencing court should have obtained an updated probation report. (Id., at p. 70, fn. 4, 195 Cal.Rptr. 193.)

If our task was merely a matter of choosing between Cooper and Savala, we would readily follow the former, because its reliance upon People v. Rojas (1962) 57 Cal.2d 676, 21 Cal.Rptr. 564, 371 P.2d 300 and its analysis of the 1971 amendment to PENAL CODE SECTION 1203¹ are better reasoned and far more persuasive than the brief and incomplete treatment of the issue in Savala. ² However, the present case presents a factual permutation not considered in either decision--defendant herein is statutorily ineligible for probation, pursuant to section 1203.06, subdivision (a)(1)(iii), having personally used a firearm in the commission of a robbery. Since the original justification for a supplemental, updated probation report, as established in People v. Rojas, supra, 57 Cal.2d at pages 682-683, 21 Cal.Rptr. 564, 371 P.2d 300, was that the resentencing court should, to satisfy the purposes and objectives of the law relating to probation, consider whether to grant probation after remand, that justification is missing when the defendant being resentenced may not be admitted to probation under any circumstances.

Only two cases have remarked upon eligibility for probation as affecting a resentencing court's duty to obtain an updated probation report: People v. Ware (1966) 241 Cal.App.2d 143, 50 Cal.Rptr. 252, decided prior to the 1971 amendment of section 1203 and before enactment of the Determinate Sentencing Act, and People v. Mariano (1983) 144 Cal.App.3d 814, 193 Cal.Rptr. 47, a much more recent opinion. In Ware, the trial court had originally believed that the defendant was completely ineligible for probation, and had sentenced him to prison. (People v. Ware, supra, 241 Cal.App.2d at p. 144, 50 Cal.Rptr. 252.) On appeal, it was held that the defendant might be eligible for probation if the sentencing court found that he had not attempted to use a gun or found that the case was "unusual," and the matter was remanded for a determination of those issues. (Ibid.) On remand, the trial court found that defendant had used and attempted to use a gun, and that the case was not "unusual," and again sentenced the defendant to prison. (Id., at pp. 144-145, 50 Cal.Rptr. 252.) The defendant again appealed, contending, inter alia, that the trial court should have obtained an updated probation report before making its findings. (Id., at p. 145, 50 Cal.Rptr. 252.)

The Court of Appeal (Second Appellate District) affirmed, distinguishing People v. Rojas on the grounds that it had involved a defendant eligible for probation and at large on bail during the pendency of his appeal, while the defendant before the Court of Appeal had been found ineligible for probation and had been imprisoned during his appeal. (People v. Ware, supra, 241 Cal.App.2d at pp. 145-146, 50 Cal.Rptr. 252.) "A new probation report could have added nothing except to tell how defendant was getting along in prison. We do not think that such additional information, had it been obtained, would have been of any significance in the trial court's determination as to whether this was an 'unusual' case. If a literal reading of section 1203 required a further reference to the probation department in this case, lack of it did not prejudice the defendant." (Id., at p. 146, 50 Cal.Rptr. 252.)

People v. Mariano, supra, 144 Cal.App.3d 814, 193 Cal.Rptr. 47, involved a defendant who obtained a remand for resentencing after appeal and who was eligible for probation on resentencing; the trial court refused to obtain an updated probation report and sentenced the defendant to prison. (Id., at pp. 817-818, 193 Cal.Rptr. 47.) The defendant again appealed, contending, inter alia, that the resentencing court should have obtained a current probation report. (Id., at p. 819, 193 Cal.Rptr. 47.) In holding that the trial court should have ordered a current probation report, the Court of Appeal for the First Appellate District used the following language: "[T]he court was obliged to obtain a supplemental probation report if, at the time of resentencing, it had authority to consider alternative dispositions to imprisonment such as probation or commitment to the Youth Authority. [Citations.]" (Id., at p. 822, 193 Cal.Rptr. 47, emphasis added.)

Taking Ware and Mariano at face value, it would follow that no new probation report need be obtained where the defendant being resentenced is completely ineligible for probation. Since passage of the Determinate Sentencing Act, however, a sentencing court must do much more than simply determine whether to admit a defendant to probation or to send him to prison for "the term prescribed by law." As implicitly recognized by the Cooper court, the probation report bears directly and influentially upon the length of a defendant's imprisonment, by affecting whether the trial court finds factors in aggravation or mitigation, the balancing of those factors, and the decision whether to impose concurrent or consecutive sentences. Taken literally, the language of section 1203, subdivision (b), that a probation report be prepared "[i]n every case in which a person ... is eligible for probation ...," would permit a trial court to refuse to order an initial probation report where, as here, the crimes...