Error and/or relief
Following multiple remands for further resentencing, the defendant appeals to request that the errors in the probation report be corrected. We agree that certain errors persist in the probation report, and we remand to have those errors in the probation report corrected.
Gary musings:
This summary has little value as a source of published authority, because the appellate court cited no authority. The appellate court had, in a prior appeal, already ordered the corrections in the probation report, but some of the corrections were not made. Hence, in part, this appeal. (There was another aspect raised by the defendant regarding an in camera hearing by the superior court on subpoenaed records, and the appellate court affirmed–with citations to authority–the superior court’s conclusion that there was nothing relevant in the records to disclose.)
I considered not including this summary because of its lack of resource value for published or statutory authority, but I decided to present the summary anyway, as a reminder that if there are errors in the probation report, and the trial court has failed to correct them, there is nothing wrong with arguing on appeal that the errors exist and that the appellate court should order their correction.
We have seen the court direct the correction of minutes and abstracts of judgment many times, and the court has normally cited authority. I do not recall any specific instance directing the correction of a probation report, however. Yet it is important.
Probation reports are often resorted to in future cases, and decisions in the new cases may be influenced by information in the probation report, whether or not the probation report suffices as part of the record of conviction. If nothing else, the presence of information in a probation report of a previous case may influence the district attorney’s decisions in plea bargaining, and defense counsel may also be misled.
For instance, suppose a defendant had a prior conviction under a former version of section 245, at a time when the language was “an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury” in the same subdivision of section 245. Suppose the probation report states incorrectly that the defendant used a deadly weapon (rather than correctly stating that the basis was assault by means of force likely to produce great bodily injury).
A prosecutor might rely on that information as the only evidence that the section 245 conviction constitutes a strike. If the probation report says it, and defense counsel believes it, the attorney may counsel the defendant to accept a plea bargain to avoid a third strikes sentence (assuming there is another strike for, say, robbery, and the new offense is also a serious felony). A deal might be reached for a second strike term, yet the defendant was only facing a second strike term if that prior section 245 did not, in fact, involve the use of a deadly weapon. If dismissing the nonexistent strike was the only concession, it’s a pretty hollow plea bargain.
Under that scenario, decisions made by the DA and by the defense attorney (by counseling the client incorrectly) could result in a fate worse than necessary, and there would be no review by the trial judge or an appellate court, because the issue would never be brought to the attention of either. Had the probation report (in this scenario) correctly identified the prior conviction as not a strike, the tenor of the plea bargaining would have been on a lower level.
I urge that attorneys examine the probation reports carefully at the trial level for accuracy and to request correction of the report at least wherever there is any incorrect statement that could someday come back to haunt the defendant, whether simply in negotiations or in front of a judge. (Given how fluid trends in legislation can be, I’d be very careful before concluding that an uncorrected error would never come back to haunt the defendant.)
And though I believe appellate counsel should also review the report carefully, I recognize that it is extremely difficult on appeal to detect errors on anything that is not in the transcripts on appeal. A report could say that the defendant attacked victim A and victim B, and a review of the trial transcript on appeal would likely be able to establish whether that was correct or not.
But what if there was no trial? It’s risky to assume that facts stated in the charging document are true, so I wouldn’t consider that to be reliable confirmation of the accuracy of the probation report. It’s conceivable even that the language in the probation report was simply lifted from the information, even if investigation bore out that there was only one victim.
Aside from whether the probation report accurately recites the facts of the incident, there is very little of a defendant’s history that appellate counsel could determine as accurate or not. That can pretty much be done only by trial counsel before the matter is brought for sentencing.
Keep in mind, trial attorneys, that the appellate courts will not look outside the record on appeal. If the probation report states that a victim was a certain age at the time of the crime, it would be very difficult, perhaps impossible, to persuade the appellate court that the victim was older or younger. Facts like that have to be established in the trial court, and the trial court judge must be given the opportunity to do the right thing, which can be done only if the judge is made aware of what the right thing is.
If there is no trial, but a guilty plea, there possibly/likely is no evidence of the victim’s age in the appellate record, other than allegations in the charging document and in the probation report. A simply typo could make a big difference (think of the difference in age between age 7 and age 17, or age 8 and age 18).
Anyway, that’s why you see this summary that provides no published authority for you to rely on. It’s simply an example of something to consider–get the errors in the probation report corrected, whether at the trial level (pretty much the only way it can happen) or on appeal (in those rare instances, such as this, where the record on appeal is going to demonstrate that there are inaccuracies).