People v. Mercant

[1194]

Opinion

FRANSON, P. J.

Statement of the Case

Appellant was convicted on his guilty plea of violating Penal Code section 12021, subdivision (a)

1

(felon in possession of a concealable firearm) on December 13, 1985. Appellant entered this plea on the condition the court could sentence him to no more than two years in state prison. The court referred the matter to the probation department and set the sentencing hearing for January 16, 1986. A probation report was submitted on January 6, 1986.

Appellant failed to appear for sentencing on January 16, 1986. Appellant did not appear until January 19, 1989, approximately three years later. At that time appellant’s counsel, Mr. Ulman, requested a continuance so that a supplemental probation report could be prepared. Counsel further stated that he was not prepared to proceed because the matter had previously been handled by a different deputy public defender. However, appellant stated he had no objection to Mr. Ulman appearing for him that day. The court denied the request for a continuance.

Appellant’s request for probation was denied, and he was sentenced to state prison for two years pursuant to the negotiated plea.

Appellant contends the trial court erred in sentencing him without a current probation report, and consequently, the case must be remanded for resentencing. We agree.

Issue

A supplemental probation report should have been prepared before appellant was sentenced.

Section 1203, subdivision (b) provides in part: “[I]n every case in which a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall

immediately

refer the matter to the probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment. . . .” (italics added.) This statute has repeatedly