People v. Cooper

Opinion

ROUSE, J.

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

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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.