People v. Evans

[1021]

Opinion

BROWN (Gerald), P. J.

Joseph Evans and Fausto Soto Garay appeal the judgments entered following their guilty pleas to false imprisonment (Pen. Code, §§ 236, 237) and being armed with a firearm while committing a felony (Pen. Code, § 12022, subd. (a)). Both defendants contend the superior court erred in sentencing them to prison for the upper term.

Evans was charged with several counts of kidnaping, conspiracy to commit kidnaping, false imprisonment and use of a firearm while committing a felony. Garay was charged with conspiracy to commit kidnaping, several counts of false imprisonment and use of a firearm while committing a felony. Both pleaded guilty to one count of false imprisonment while armed with a firearm in return for the People dropping the other charges. Both defendants received the upper term of three years plus one year enhancement for using a firearm.

Evans’ Appeal

Evans contends the superior court considered improper material when imposing sentence. He claims the court should not have considered the file in a codefendant’s case, the evidence presented at the preliminary hearing and his own probation report. He objects to his probation report on the grounds it was filed only five days before sentencing rather than the nine days required by statute (Pen. Code, § 1203, subd. (b)) and contains conjecture by the probation officer as to the facts of the offense.

Evans’ contention is not properly before us. The proper procedure for challenging the contents of a probation report is by way of a statement in mitigation filed with the court (Pen. Code, § 1170, subd. (b)). Evans filed no such statement. Furthermore, any objection to the contents of a probation report or other material relied on by the sentencing court must be made in the superior court or is waived

(People

v.

Wagoner

(1979) 89 Cal.App.3d 605, 616 [152 Cal.Rptr. 639];

People

v.

Medina