People v. Cooper

• Decision Date: 02 March 1984
• Docket Number: Cr. 21827
• Citation: 153 Cal.App.3d 480,200 Cal.Rptr. 317
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Abie COOPER, Defendant and Appellant. A018137.

Page 317

200 Cal.Rptr. 317

153 Cal.App.3d 480

The PEOPLE of the State of California, Plaintiff and Respondent, v. Abie COOPER, Defendant and Appellant.

A018137.

Cr. 21827.

Court of Appeal, First District, Division 2, California.

March 2, 1984.

John K. Van de Kamp, Atty. Gen., John W. Runde, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Quin Denvir, State Public Defender, Michael S. McCormick, Deputy State Public Defender, San Francisco, for defendant and appellant.

ROUSE, Associate Justice.

This appeal involves the single issue of whether a trial court, when resentencing a defendant following a remand by the appellate court, must obtain a current probation report before imposing sentence.

The pertinent facts are that on July 17, 1980, defendant Abie Cooper was charged by information with assault with a deadly weapon, in violation of section 245, subdivision (a), of the Penal Code. He was tried by a jury, which found him guilty as charged, and he was sentenced to serve the upper term of four years in state prison.

Defendant appealed from the sentence imposing the aggravated term. The appellate court concluded that the sentencing court had erroneously based its sentence choice upon two aggravating factors (the threat of great bodily harm and the use of a weapon) which constituted elements of the charged offense, assault with a deadly weapon. Although the trial court had properly relied upon two other aggravating factors (the unprovoked nature of the attack and the seriousness of the crime), the appellate court held that a remand for resentencing proceedings was necessary in order that the trial court could weigh these two aggravating factors against the two factors in mitigation (defendant's substantially reduced culpability due to a mental condition and the absence of any significant prior criminal record).

Upon remand, a resentencing hearing was held on April 29, 1982. After reviewing the presentence report and the appellate court opinion resulting in the remand, the trial court reaffirmed the existence of the two mitigating and two aggravating factors mentioned by the appellate court. However, the trial court also found that there were two additional factors in aggravation: defendant was a dangerous individual and thus a threat to society, and he had a prior history of assaultive (although misdemeanor level) behavior. Defendant was again sentenced to the upper term of four years and has again appealed.

Defendant's sole contention on appeal is that the case must again be remanded for further sentencing proceedings because the court failed to obtain a current probation report in accordance with the provisions of section 1203 of the Penal Code. He asserts that a current probation report would have allowed the trial court to consider his conduct in prison before resentencing him and that such a report might have contained a psychiatric evaluation indicating the existence of mitigating circumstances which might have dissuaded the court from reimposing the upper term of imprisonment. ¹

Section 1203, subdivision (b), of the Penal Code provides, in pertinent part, that "In every case in which a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to the probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment."

Defendant correctly points out that this statute has repeatedly been held to require a current probation report upon resentencing proceedings following a remand by the appellate court. (People v. Rojas (1962) 57 Cal.2d 676, 679, 682, 21 Cal.Rptr. 564, 371 P.2d 300; In re Gomez (1973) 31 Cal.App.3d 728, 731, 733, 107 Cal.Rptr. 609; People v. Keller (1966) 245 Cal.App.2d 711, 715-718, 54 Cal.Rptr. 154.)

The Attorney General seeks to distinguish these authorities by arguing that they were decided prior to a 1971 amendment to section 1203 of the Penal Code. He points out that prior to 1971, section 1203 required the preparation of a probation report "before any judgment is pronounced" (Stats.1969, ch. 522, § 2, p. 1134; emphasis supplied), but that in 1971 the Legislature amended the statute, eliminating the word "any" and making various other changes to the statute (Stats.1971, ch. 706, § 1, p. 1367). The...