Opinion
A097747. A098853.
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. VICTOR JIMENEZ, Defendant and Appellant.
Victor Jimenez (appellant) pleaded guilty to two counts of child endangerment. On appeal, he contends (1) the trial court erred in denying his timely request for a continuance to respond to the supplemental probation report; (2) the trial court failed to use informed discretion when it sentenced him to the aggravated term because it failed to recognize his reduced culpability due to his mental retardation; and (3) the trial court abused its discretion when it sentenced him to the aggravated term because it failed to recognize his brain damage as a mitigating factor. Because we find the trial court erred in refusing to grant the requested continuance, we shall remand the matter for resentencing.
PROCEDURAL BACKGROUND
Appellant was charged by a second amended complaint with inflicting corporal injury upon a child (Pen. Code, § 273d, subd. (a) ); two counts of child endangerment ( § 273a, subd. (a)); misdemeanor placing the health of a child in danger ( § 273a, subd. (b)); misdemeanor use of force on a cohabitant (§ 243, subd. (e)(1)); and misdemeanor battery ( § 242).
All further statutory references are to the Penal Code unless otherwise indicated.
On October 15, 2001, appellant pleaded guilty to the two counts of child endangerment. The remaining counts were dismissed with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754, 159 Cal. Rptr. 696, 602 P.2d 396.
On December 14, 2001, the trial court sentenced appellant to a total term of seven years four months in state prison. On April 12, 2002, appellant moved for reconsideration and recall of the sentence. On April 15, 2002, the trial court recalled the previously imposed sentence and ordered that a supplemental probation report be prepared. On May 6, 2002, the court resentenced appellant to the previously imposed term.
Appellant filed timely notices of appeal.
FACTUAL BACKGROUND
The following facts are taken from the probation report.
Most of the charges against appellant were based upon his ongoing physical abuse of the two young daughters of his live-in girlfriend, Alejandra R. The children were approximately two to three years old and three to four years old at the time. The allegations against appellant, based upon interviews with the two girls and several witnesses, included frequently yelling and swearing at the girls; frequently hitting them on their buttocks, backs, legs, and hands with his hand, a belt, a cable, or a rope; pinching the tips of their fingers; grabbing them by the ears; grabbing the younger girl by the hair and smashing and rubbing her face into the floor; putting a lit match in the younger girls mouth; making both girls kneel and face the wall for 10 to 30 minutes at a time; slapping the older girl across the face and splitting her lip open; and burning the younger girls vaginal area with a hot iron.
During a medical examination, an injury consistent with a burn was found in the younger girls vaginal area; in addition, abnormal findings with respect to the younger girls hymen and other vaginal areas were discovered. As to the older girl, external physical injuries were found, as well as abnormal findings with respect to some vaginal injuries.
Appellant consistently denied abusing the girls. He claimed that, other than a single instance of spanking one of the girls on her buttocks, the only punishments he ever imposed were verbal reprimands and five-minute time-outs facing the wall.
The dismissed charges of battery and use of force and violence upon a cohabitant arose from allegations that appellant had been observed arguing with Alejandra R. in their bedroom, and was seen straddling her on the bed and slapping her on the face two or three times. These allegations were reported by Alejandras mother; Alejandra did not wish to bring charges against appellant.
Appellant was evaluated by two mental health workers after his arrest. The first, social worker Suzanne Dowling, found that appellant was of average intelligence, but that he appeared to have an expressive language disorder. She recommended that he undergo a comprehensive neuropsychological assessment because he had suffered numerous severe head injuries in his youth that could be related to his mood swings and aggression. Appellant was then examined by psychologist Adrianne Aron, who found that appellant had a low level of intellectual functioning. Dr. Aron recommended a neurological evaluation to help understand appellants mental deficits and the possible effects of his head injuries.
The neuropsychological evaluation by Dr. Edgar Angelone and the courts subsequent recall of the sentence and resentencing will be discussed in part I.A., post, of this opinion.
DISCUSSION
I.
Appellant contends the trial court erred in denying his request for a continuance based upon his late receipt of the supplemental probation report.
A. Trial Court Background
Before and during the initial sentencing hearing in this case, defense counsel requested that appellant undergo a neurological examination, as recommended by a psychologist, to determine the existence and extent of appellants suspected brain damage. The trial court sentenced appellant to prison, but ordered that a neurological examination be performed and its results be forwarded to the Department of Corrections.
On April 15, 2002, the trial court granted appellants motion to recall the sentence and to resentence appellant, pursuant to section 1170, subdivision (d). The motion was based upon the results of a neuropsychological examination of appellant by Dr. Edgar Angelone that showed appellant had suffered a brain injury and was also mentally retarded. Dr. Angelone recommended that appellant participate in a structured educational program and psychiatric therapy. He expressed the opinion that imprisonment would further delay appellants ability to develop appropriate interpersonal skills. The court recalled the sentence to give the probation officer an opportunity to receive input from Dr. Angelone and reset the matter for "report and judgment."
At the 9:00 a.m. sentencing hearing on May 6, 2002, defense counsel informed the trial court that she had not received a copy of the supplemental memorandum from the probation department until that morning. Counsel requested that the court continue the sentencing hearing for three or four days. The prosecutor stated that he too had received the memorandum that morning, but that since the probation departments recommendation had not changed, counsel should not need more time to review it.
Defense counsel responded: "It doesnt matter [that the probation departments recommendation is unchanged]. There are paragraphs in here that I need to think about and respond to so I can say, with some amount of assurance, and know what Im talking about when I talk to the Court and ask the Court to either follow the old recommendations or not follow the old recommendations. [P] Plus, my client has a right to know whats in this memo." The court gave defense counsel until 1:30 that afternoon to review the supplemental report and discuss it with her client.
In the supplemental report, the probation departments sentencing recommendation had remained unchanged, but the memorandum did contain new information about a conversation between the probation officer and Dr. Angelone, the neuropsychologist, in which the probation officer reported that Dr. Angelone had changed his recommendation based on additional information about the offenses provided to him by the probation officer. The probation officer stated that after he read part of his presentence report to Dr. Angelone, describing the specifics of the offenses appellant had committed, "Dr. Angelones response was that some behavioral acts cannot be explained in terms of a cultural context and/or impulsivity as a result of a possible brain injury. However, in regards to acts which are purposeful, they cannot be explained in terms of limited intellect or impulsivity. Dr. Angelone feels he was not provided with full information as to the nature of the defendants acts and the fact that previous counseling had been provided to the defendant. He states that had he known this he would not have made the same recommendations concerning this matter. Dr. Angelone mentioned that most mentally retarded individuals do not engage in deliberate purposeful acts of abuse. He feels the defendant should be held accountable for his purposeful criminal acts."
B. Analysis
The trial court in this case recalled the sentence pursuant to section 1170, subdivision (d), which provides that the court "may . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced . . . ."
Section 1203 provides that, when a defendant who has been convicted of a felony is eligible for probation ( § 1203, subd. (b)(1)), a written probation report "shall be made available to the court and the prosecuting and defense attorneys at least five days, or upon request of the defendant or prosecuting attorney, nine days prior to the time fixed by the court for the hearing and determination of the report . . . . The time within which the report shall be made available and filed may be waived by written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court." (§ 1203, subd. (b)(2)(D).)
The time requirements set forth in section 1203, subdivision (b)(2)(D) are mandatory, and the case law is clear that when a defendant who is eligible for probation does not receive a probation report at least five days before the sentencing hearing, he or she is entitled, upon request, to a continuance. In People v. Leffel (1987) 196 Cal. App. 3d 1310, 1318, 242 Cal. Rptr. 456 (Leffel), the appellate court held that the trial court had erred when it failed to grant a continuance requested by defense counsel, who had not received the report until the day before the sentencing hearing. " To deny defendant an opportunity to study, for the full time allowed by law, matters which bear on his sentence is a clear denial of his statutory rights. " (Ibid., quoting People v. Oppenheimer (1963) 214 Cal. App. 2d 366, 371, 29 Cal. Rptr. 474.)
Similarly, in People v. Bohannon (2000) 82 Cal.App.4th 798, 807-808 (Bohannon), the appellate court had remanded the matter for resentencing, and defense counsel received the probation report on the date of the sentencing hearing. The trial court refused defense counsels request for a continuance to give counsel time to read, consider, and respond to the report. (Ibid.) The appellate court found that "the failure to grant the requested continuance rendered the sentencing fundamentally unfair. The defendant is entitled to a remand for resentencing." (Id. at p. 809; compare People v. Oseguera (1993) 20 Cal.App.4th 290, 293-294 [courts failure, after remand, to obtain supplemental probation report before sentencing is nonjurisdictional error that can be waived by failure to object].)
In both Leffel and Bohannon, the appellate courts found the question of prejudice inapplicable. As the court stated in Leffel, supra, 196 Cal. App. 3d 1310: "Although both parties argue the prejudice or lack thereof in the instant case, the possibilities for prejudice are clear and the actual prejudice suffered is a matter of conjecture. [P] What the defendant might have been able to object to or to add further to the report cannot be determined because he was not afforded the proper opportunity to comprehend, analyze, investigate and evaluate the report. It is clear that the Legislature intended that he be given this opportunity." (Id. at p. 1318; accord, Bohannon, supra, 82 Cal.App.4th at p. 809; compare People v. Middleton (1997) 52 Cal.App.4th 19, 35-36 [when defendant is statutorily ineligible for probation, untimely receipt of probation report is a due process violation only if actual prejudice is demonstrated].)
In the present case, appellant was eligible for probation, and defense counsel did not receive the supplemental probation report five days before the sentencing hearing as mandated by section 1203, subdivision (b)(2)(D). Counsel objected to this error and stated that she needed a several-day continuance to think about and respond to the report, and to discuss it with her client. In these circumstances, the courts failure to grant a continuance (of more than a few hours) rendered the sentencing hearing "fundamentally unfair." (Bohannon, supra, 82 Cal.App.4th at p. 809; Leffel, supra, 196 Cal. App. 3d at p. 1319.)
Respondent argues that because this case involved a resentencing, no report was required and therefore appellant cannot complain that the supplemental report was not made available to him in a timely fashion. Section 1170, subdivision (d) requires, however, that, after a prior sentence is recalled, a defendant must be resentenced "in the same manner as if he or she had not previously been sentenced." (See also People v. Rojas (1962) 57 Cal.2d 676, 682, 21 Cal. Rptr. 564, 371 P.2d 300 [where defendant is eligible for probation, referral for probation report required "on each occasion of passing judgment"].) The provisions of section 1170, subdivision (d) were applicable to appellants resentencing, and the trial court properly ordered a supplemental report when it set the date for the new sentencing hearing.
It is irrelevant that the supplemental report was brief and included the same sentencing recommendation as did the original report. It is also irrelevant that defense counsel apparently had spoken to Dr. Angelone after Dr. Angelones conversation with the probation officer. Under section 1203, subdivision (b)(2)(D), appellants counsel was entitled to receive the report at least five days before the sentencing hearing. (See Leffel, supra, 196 Cal. App. 3d at p. 1318 [question of prejudice inapplicable where provisions of section 1203, subdivision (b)(2)(D) are not followed]; cf. People v. Oseguera, supra, 20 Cal.App.4th at p. 293 ["It is established that a trial court must order and consider [a supplemental probation report] on remand for resentencing"].)
Appellant notes that counsel did not know the specifics of Dr. Angelones changed recommendation, or the reason for it. As appellant states in his reply brief: "With a continuance, counsel could have contested Angelones training and expertise in the field of mental retardation, could have consulted another expert(s), and could have conducted additional legal and/or medical research. . . . None of these tasks could be done within a few hours."
Appellant is entitled to a remand for resentencing. He also is entitled to the preparation of an updated probation report, since it has been over one year since he was resentenced. (See Leffel, supra, 196 Cal. App. 3d at p. 1319; see also Cal. Rules of Court, rule 4.411(c) ["The court shall order a supplemental probation officers report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared"].)
II.
Since the case will be remanded for resentencing due to noncompliance with the requirements of section 1203, subdivision (b)(2)(D), we need not address appellants additional contentions, i.e., that the trial court failed to use informed discretion when it sentenced appellant to the aggravated term because it failed to recognize his reduced culpability based on his mental retardation, and abused its discretion when it sentenced appellant to the aggravated term because it failed to recognize his brain damage as a mitigating factor. There will be an updated probation report, along with any response to the report by appellants counsel, for the trial court to consider before resentencing appellant.
DISPOSITION
Appellants sentence is vacated and the matter is remanded for resentencing in accordance with the views expressed herein.
We concur: HAERLE, J., RUVOLO, J.