THE PEOPLE v. SERGIO HUMBERTO OLGUIN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. SERGIO HUMBERTO OLGUIN, Defendant and Appellant.

2d Crim. No. B220456

Decided: February 24, 2011

Trial Court's Consideration of Pre-Conviction Report

Appellant claims the trial court improperly viewed his pre-conviction report prior to trial.   At the outset, we note that a pre-conviction report is prepared at the time of arrest, time of the plea or verdict of guilty. (§ 1203.7, subd. (a).)  By contrast, a presentence report is prepared after plea or conviction in cases where the defendant is eligible for probation. (§ 1203, subd. (b)(1).)

Preparation of a pre conviction report is dictated by section 1203.7, subdivision (a), which provides that “[e]ither at the time of the arrest for a crime of any person over 16 years of age, or at the time of the plea or verdict of guilty, the probation officer ․ when so directed by the court, [shall] inquire into the antecedents, character, history, family environment and offense of that person.   The probation officer shall report that information to the court and file a written report in the records of the court.   The report shall contain his or her recommendations for or against the release of the person on probation.”

Appellant claims the court violated section 1204.5,2 which prohibits a judge from reading the report of a law enforcement officer or witness, or any information that reflects the defendant's record of arrests or convictions, prior to a plea, a finding or a verdict of guilt, without the defendant's consent.   The statute enumerates several exceptions under which this information may be considered.  (Id., subd.(b)(1)-(3).)

Appellant was arrested on April 7, 2008, and released on his own recognizance the same day.   On May 1, 2009, the probation department prepared a pre-conviction report for a pretrial conference, scheduled for July 29.   The pre-conviction report indicates that the trial judge read the report the day prior to the hearing.   He signed his name under a statement acknowledging that he had read and considered the report, and dated it July 28, 2009.

The pre-conviction report contained statements made by the victim and a police detective.   Appellant contends they were “unsupported and inflammatory” and “tainted the trial court's perception,” resulting in prejudice.   Parish's statements concerned his injuries, the surgeries and his loss of income due to his inability to work.   He stated that, after the offense, a friend of appellant's asked him “ ‘how much it would cost to make the matter go away.’ ”   Parish told the probation officer that appellant had threatened to “ ‘kick the hell out of me.’ ”   He said, “ ‘I would like to see [appellant] locked up for a long time.   My face is still numb.   Guys like this should not be allowed to run around.’ ”

The report also contained appellant's criminal history and the statement of Detective Goosens.   He told the probation officer that “ ‘[appellant] has violent tendencies.   He's carried a gun in the past and if he has one, he will use it․  [Appellant] should be taken off the streets.’ ”

The probation officer concluded that “[appellant] committed an extremely cowardly act by assaulting the victim while he slept.   The attack was obviously unprovoked and committed out of jealously [sic] for his estranged wife․  [¶] [Appellant's] felony history involves a theft-related offense, but of serious concern is a misdemeanor conviction, wherein he possessed a firearm.   Based on his actions, [appellant] is not willing to accept the termination of his marriage and the fact that his estranged wife is moving on without him.   He poses an extreme danger to her and to any other male who wins her attention.   [¶] [Appellant] had previously threatened to assault this victim and he made true these threats.   He is a dangerous individual whose jealously [sic] and loss of control could have led to the demise of the victim․”  The probation officer recommended that, if convicted, that appellant should be sentenced to state prison for the high base term.

Appellant may, indeed, be correct that the court improperly viewed his pre-conviction report.   However, he has failed to provide us with a complete appellate record so that we may evaluate his claim.   The record on appeal contains the clerk's minute orders for pre-trial proceedings conducted on July 29, August 26 and September 23, 2009.   None make reference to a pre-conviction report.   After the parties announced that they were ready for trial, the clerk's minutes indicate that the People provided appellant (who proceeded in pro. per.) with a “2-page supplemental report.”   The type of report is not identified.

Absent from the record are reporter's transcripts of the foregoing hearings which would allow us to determine whether there was, in fact, a violation of section 1204.5.   The record is bereft of evidence that the report was read without the knowledge or consent of the parties.   Appellant bears the burden of providing a record that demonstrates error.  (People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084.)   His failure to do so requires that the issue must be resolved against him.  (People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80.)

Despite the lack of a record, we observe that the pre-conviction report was likely given to counsel and appellant.   Pursuant to section 1204.5, subdivision (b)(2), when information is properly provided to the judge to adopt a pre-trial sentencing position, that information is also provided to the parties.   Because there is no record of who requested the report, it is reasonable to infer that it was prepared for settlement negotiations that were not fruitful.

Even had the report had been improperly considered by the court, appellant has not shown prejudice.   The ultimate determination of guilt or innocence lay not with the trial court, but with the jury.   It heard the testimony, considered the evidence and returned a verdict of guilt.   Moreover, every fact in the report, other than the statement of Detective Goosens, was testified to at trial.   Appellant has not shown a reasonable probability that he would have obtained a more favorable result had the court not considered the pre-conviction report prior to trial.  (People v. Watson (1956) 46 Cal.2d. 818, 836.)

Entitlement to Pre-Sentence Report

Appellant claims he was deprived of his right to a pre-sentence report.   Pursuant to section 1203, subdivision (b)(1), “if a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a 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.”

Included in the record is a reporter's transcript of the trial.   After the jury was excused, the trial court informed appellant that it would proceed with sentencing and asked if he wished to be sentenced immediately.   Appellant began to inquire whether he could remain free to handle his affairs.   The court responded, “[y]ou're going to be remanded, sir, right now, so I can sentence you now or later.”   Appellant responded, “[s]entence me now.”   He agreed there was no legal cause why sentence could not be pronounced and waived arraignment for judgment.

The court indicated it had read and considered the section 1203.7 report and chose to dismiss the charge of first degree burglary because “it would add no greater benefit on retrial in this matter.”   The court determined that appellant was presumptively unsuitable for probation because he had inflicted great bodily harm on the victim (section 1203, subdivision (e)(3)) and due to his prior convictions.

Appellant claims that we must remand the matter for preparation of a pre-sentence report, pursuant to section 1203.   We first note that appellant did not request a report and agreed to be sentenced immediately.   Failure to request a supplemental report or to object at the sentencing proceeding can constitute waiver.  (People v. Oseguera (1993) 20 Cal.App.4th 290, 293-294 [remand for resentencing];  People v. Begnaud (1991) 235 Cal.App.3d 1548, 1555-1556.)   Even had appellant been entitled to a pre-sentence report, any error would have been harmless.   It is not reasonably probable he would have obtained a more favorable result had a supplemental report been prepared and considered.  (People v. Watson, supra, 46 Cal.2d. at p. 836;  People v. Dobbins (2005) 127 Cal.App.4th 176, 182.)

Exclusion of Evidence of Jessica's Arrest for Domestic Violence

In 2008, Jessica was arrested for domestic violence against appellant.   The charge, a misdemeanor, was subsequently dismissed.   Prior to trial, the prosecutor moved to exclude reference to the arrest for the purpose of impeachment.   The court granted the motion.   Appellant claims the court abused its discretion because the evidence was admissible to impeach Jessica's credibility.

The trial court possesses broad discretion in excluding impeachment evidence.  (Evid.Code, § 352;  People v. Ayala (2000) 23 Cal.4th 225, 301.)   This is especially true when a misdemeanor, or any other conduct not amounting to a felony, is offered for impeachment.  (People v. Wheeler (1992) 4 Cal.4th 284, 296.)   Evidence of prior arrests that did not result in convictions have been deemed inadmissible.  (People v. Medina (1995) 11 Cal.4th 694, 769;  People v. Lopez (2005) 129 Cal.App.4th 1508, 1523;  People v. Williams (1995) 170 Cal.App.4th 587, 610.)   Jessica was arrested for a misdemeanor offense, which did not result in a conviction.   This evidence was properly excluded.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Ronald S. Coen, Judge

Superior Court County of Los Angeles

Alan E. Spears, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Richard S. Moskowitz, Deputy Attorney General, for Plaintiff and Respondent.

FOOTNOTES

FN2. Penal Code section 1204.5, subdivision (a) provides in part:  “In any criminal action, after the filing of any complaint or other accusatory pleading and before a plea, finding, or verdict of guilty, no judge shall read or consider any written report of any law enforcement officer or witness to any offense, any information reflecting the arrest or conviction record of a defendant, or any affidavit or representation of any kind, verbal or written, without the defendant's consent given in open court, except as provided in the rules of evidence applicable at the trial, or as provided in affidavits in connection with the issuance of a warrant or the hearing of any law and motion matter, or in any application for an order fixing or changing bail, or a petition for a writ.”.  FN2. Penal Code section 1204.5, subdivision (a) provides in part:  “In any criminal action, after the filing of any complaint or other accusatory pleading and before a plea, finding, or verdict of guilty, no judge shall read or consider any written report of any law enforcement officer or witness to any offense, any information reflecting the arrest or conviction record of a defendant, or any affidavit or representation of any kind, verbal or written, without the defendant's consent given in open court, except as provided in the rules of evidence applicable at the trial, or as provided in affidavits in connection with the issuance of a warrant or the hearing of any law and motion matter, or in any application for an order fixing or changing bail, or a petition for a writ.”