Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA364115 Rand S. Rubin, Judge.
Elana Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN P. J.
A jury convicted Columbus Grisby (appellant) of arson in violation of Penal Code section 451, subdivision (d) and assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). The trial court sentenced appellant to the upper term of four years on the arson count and a concurrent midterm of two years on the assault count.
Appellant appeals on the ground that the probation report includes factually inaccurate information that must be corrected by the trial court so as not to negatively impact his prison classification and parole consideration.
FACTS
Prosecution Evidence
We recite the evidence in the light most favorable to the judgment below. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Concepcion H. had known appellant for six years at the time of trial, and she dated him for one year between 2007 and 2008. They lived together during that year. In September 2009, Concepcion, her daughter Carla, and her son Marco moved into a house in the 1700 block of Union Avenue. They shared the house with a man named Luis, his wife, and his children.
On October 4, 2009, at approximately 6:00 or 7:00 p.m., Concepcion returned home with her son to find appellant on the stairs of her home. He was using a cane. Concepcion knew appellant had suffered several strokes and was paralyzed on one side. Because of her poor English, Concepcion could not understand what appellant said to her. She tried to call 911, but appellant grabbed her cell phone and threw it on the ground, where it fell apart. Concepcion went inside her house and appellant followed her. Appellant grabbed Concepcion’s keys and they struggled over them. Appellant eventually took the keys out of her hand. Appellant left the house saying that “he was going to burn the house down with everybody inside.” Concepcion managed to put her phone back together, and she called the police.
Concepcion went to sleep at 10:00 p.m. and awakened at about 4:00 a.m. when appellant woke her up. Appellant was sitting on her bed. Concepcion’s son woke up, and she told him to run and ask for help. Concepcion pushed appellant off her bed. Appellant told her that, “[she] was his woman, that [she] was for him and that there was not any other person that was going to have [her].” While he was saying this he pulled down her pajama pants. He told her again that he was going to burn the house down with everybody inside. Concepcion grabbed her pajamas and ran into her daughter Carla’s bedroom with Marco. Before telephoning 911, Concepcion locked the outer door and called out to Luis, whose room was connected to Carla’s through a common bathroom.
As Concepcion spoke to the 911 operator, she heard the smoke detectors ringing in the kitchen and living room. Luis’s brother, Saul, opened the bedroom door and saw a fire between the kitchen and the living room. Saul grabbed a gallon container of water and put out the fire. Concepcion saw appellant standing near the location of the fire, and Carla told Concepcion that appellant had a knife. Concepcion also saw appellant with the knife.
Concepcion, Carla, and Saul went to Carla’s bedroom and locked the door. Concepcion continued to talk to the 911 operator, and police arrived 10 or 15 minutes later. When everyone emerged from the bedrooms, appellant was gone. At that point, Concepcion realized that there was also a fire in her bedroom. Some of her important personal papers had burned.
Saul testified that he saw appellant when he went to the kitchen to pour water on the fire. Appellant was holding a knife that was approximately 10 inches long. Appellant said a bad word to Saul and put the knife toward Saul’s neck. Saul moved backwards to his room. He entered and locked the door. Appellant “continued poking the door with the knife.”
Robert McLoud, an arson investigator with the Los Angeles County Fire Department, found burned paper material on a bedroom floor in the house and concluded the fire was deliberately set. He found additional burned material in the common area of the residence near the kitchen. These materials were intentionally set on fire by some type of open flame.
Defense Evidence
Appellant’s friend, Ryan Diaz, had known appellant for more than 18 years. He testified that appellant was living with Concepcion. After appellant was arrested, Diaz obtained the keys to Concepcion’s house from central lockup. Appellant had no home during September and October 2009 other than Concepcion’s house on Union Avenue and occasionally Diaz’s home.
DISCUSSION
I. Appellant’s Argument
Appellant complains that the facts set out in the probation report that purport to describe count 5, the assault with a deadly weapon, are incorrect. The facts in the probation report describe an assault committed upon Concepcion just prior to the arson instead of the facts concerning the assault with a knife on Saul, who was the named victim in count 5. The assault against Concepcion was not the basis of any charge against appellant. Appellant also points out that the probation report states that he “forced the victim to take off her clothing and have sex with him, ” even though Concepcion did not make any allegations of sexual assault during her testimony at the preliminary hearing or at trial.
According to appellant, these errors require a remand to the trial court for preparation of a new probation report. The errors are not harmless because they will adversely affect his prison classification and any future parole conditions.
II. Relevant Authority
A presentence report by a probation officer is required following every felony conviction in this state. (Pen. Code, § 1203c, subd. (a)(1).) The report accompanies the defendant upon his or her commitment to the Department of Corrections and Rehabilitation. (Pen. Code, § 1203c, subd. (b).) California Rules of Court rule 4.411.5 (a) sets out the required contents of probation reports. Rule 4.411.5 (a)(2) provides that, when describing the facts and circumstances of the crime, the source of “all such information must be stated.” Defendants must have an opportunity to review and challenge inaccuracies in the probation report. (Pen. Code, §§ 1170, subd. (b), 1203d; rule 4.437(e); see People v. Otto (2001) 26 Cal.4th 200, 212-213; People v. Scott (1994) 9 Cal.4th 331, 350-351.)
All further references to rules are to the California Rules of Court.
“[F]undamental fairness demands that [probation] reports be founded on accurate and reliable information.” (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 719, questioned on another point in People v. Green (1980) 27 Cal.3d 1, 33.) A defendant is entitled to respond to adverse or inaccurate information in a probation report. (People v. Arbuckle (1978) 22 Cal.3d 749, 753, 755; People v. Bloom (1983) 142 Cal.App.3d 310, 320.)
III. Appellant Forfeited His Complaint
Appellant has clearly forfeited the claim he now presents on appeal. Without specific comment on the probation report, except to say it had reviewed it, the trial court asked if there was any legal cause why sentence should not be pronounced. Defense counsel submitted. “‘The time for exercising [the right to correct the probation report] is at the hearing itself. As with claims of newly discovered evidence after judgment [citation], we view with disfavor the attempt to raise for the first time after sentencing the claim that the probation report was inaccurate. To permit prisoners to wait until after the probation and sentencing hearing to challenge the probation report would open the door to wasteful and duplicative procedures and abuse of court processes. There may be situations in which a prisoner is entitled to a new sentencing hearing, but only where he shows that: (1) material false information was (2) relied upon by the sentencing judge, and (3) the defendant had no opportunity at the time of sentencing to correct such false information. [Citation.]’ [Citation.]” (In re Dexter (1979) 25 Cal.3d 921, 929, fn. 2.)
In the instant case, the record reveals no evidence that the trial court based appellant’s sentence in count 5 on the information in the probation report rather than the verdicts and the evidence presented at trial. Moreover, appellant makes no such claim. Appellant also does not contend that he failed to receive an opportunity to review and challenge inaccuracies in the probation report, despite the fact that it was prepared only two days before the sentencing hearing. Appellant does not allege that he could not read the report in that time.
Appellant was certainly given an opportunity to address the court, and he did so at great length. Appellant spoke for nearly four pages of the reporter’s transcript describing an assault upon him prior to the date of the instant offenses—an assault in which Concepcion and Saul were allegedly involved. Furthermore, appellant was not a novice in the area of sentencing proceedings and probation reports. As the trial court noted, he had suffered several prior convictions. The charge in count 5 and the surrounding circumstances were known or should have been known to appellant at the time of his sentencing hearing, and he was therefore under an obligation to bring any inaccuracies to the attention of the court. “Had [appellant] thought the report insufficient or inadequate he could have presented witnesses to counteract or correct any portion of the report.” (People v. Valdivia (1960)182 Cal.App.2d145, 148.)
It is true that “[the] basic evil which should be avoided in probation reports tendered to the court for sentencing purposes is that the reports should not in any way be misleading or inaccurate.” (People v. Lutz (1980) 109 Cal.App.3d 489, 497.) It is regrettable that neither the trial court nor the parties seem to have read the report in its entirety, perhaps because their participation at trial led them to believe the current crimes would be correctly described. Although the probation officer was completely inaccurate in describing the victim and the circumstances in count 5, the false information clearly did not influence the sentencing decision, and therefore, the absence of objection constitutes a waiver of the issue on appeal. (People v. Jarvis (1982) 135 Cal.App.3d 154, 157-158; People v. Lutz, supra, at p. 496; People v. Maese (1980) 105 Cal.App.3d 710, 725.)
The probation officer checked the box indicating that the source of his information for the circumstances of the offense was a police report.
Furthermore, appellant’s claims of future possible harm, which are speculative in nature, are not without remedy. If appellant, as an inmate, believes he was wrongly classified for prison housing due to the false information in the presentence report, he has recourse to an administrative review process. Inmates are given the opportunity to contest their placement scores at the classification committee hearings. (Cal. Code Regs., tit. 15, §§ 3375, subd. (f)(5); 3376.1; 3084.1-3084.9 [describing appeal process for inmates and parolees with grievances].) Likewise, if an inmate believes he or she is erroneously made to obey more restrictive parole conditions than ordinarily imposed, the inmate can pursue an administrative appeal. (See Pen. Code, §§ 3000, subd. (b)(5), (b)(7) [inmates have the right to reconsideration of parole conditions and the length of parole by the Board of Parole Hearings, also known as the parole authority]; Pen. Code, §§ 5075, 5075.1, 5077 [Board of Parole Hearings shall review prisoner requests for setting of parole length or conditions and shall have authority to modify previously made decisions of the Department of Corrections on these matters]; Cal. Code Regs., tit. 15, § 3084.1-3084.9.)
We conclude there is no need for remand to direct the trial court to order a new or amended probation report.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST J., CHAVEZ J.