People v. Valdivia

STONE, J. pro tem.

*

Defendant pleaded guilty to a charge of violation of Health and Safety Code, section 11501, sale of heroin. The court referred the matter to the probation officer for a report and recommendation as required by Penal Code, section 1203, and ordered,

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continued a week for his report.” The day before the hearing defendant’s counsel requested a copy of the probation officer’s report but was unable to obtain it until the afternoon preceding the hearing, or less than one day in advance thereof. The court partially heard the matter on the day set, then continued it one week for further hearing. At the final hearing the court denied proba

[147]

tion and sentenced defendant to the state prison and this appeal is from the order denying probation and the judgment which followed.

Since defendant pleaded guilty to the charge for which he was sentenced, his guilt is not in question on this appeal. It is defendant’s contention that the probation proceedings were improperly conducted by the probation officer and by the court. A denial of probation will not be set aside by an appellate court unless it is shown (1) that the trial court lacked jurisdiction

(Schaefer

v.

Superior Court,

113 Cal.App.2d 428, 437 [248 P.2d 450]), or (2) that the court failed to follow the statutory requirements pertaining to probation

(People

v.

Wade,

53 Cal.2d 322, 338 [1 Cal.Rptr. 83, 348 P.2d 116]), or (3) that there is clear and convincing proof of abuse of discretion by the trial court

(People

v.

Cooper,

123 Cal.App.2d 353, 357 [266 P.2d 566]). Defendant raises no question of jurisdiction but he does contend that the court abused its discretion and failed to comply with the statutory requirements pertaining to probation hearings in four respects.