PEOPLE v. GEIBLINGER

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Court of Appeal, First District, Division 4, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gerhard GEIBLINGER, Defendant and Appellant.

A035336.

Decided: June 11, 1987

Robert K. Calhoun, Jr., Executive Director, Richard Such, Staff Atty., First District Appellate Project, San Francisco, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Linda Ludlow, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Gerhard Geiblinger appeals from a judgment of conviction of grand theft and embezzlement.  (Pen.Code, §§ 484, 487, subd. (1), 503.)   Although we hold that defendant waived any objection to the contents of the probation report prepared before he was sentenced, we also hold that report was not made available to defendant in a timely fashion.   Accordingly, we reverse.

I. THE FACTS AND PROCEDURAL HISTORY

Defendant was charged with grand theft and embezzlement.  (Pen.Code §§ 484, 487, subd. (1), 503.)   On May 2, 1986, defendant pleaded nolo contendre to these charges in the municipal court.   Defendant's plea was made on condition that the district attorney would not file additional charges and with a Harvey waiver 1 regarding an offense involving an insurance company.   The matter was certified to the superior court for further proceedings.

On May 28, 1986, probation was denied, and defendant was sentenced to state prison for a term of two years.   Defendant filed a timely notice of appeal.

II. ANALYSIS

Defendant contends that the probation report violated rule 419 of the California Rules of Court because it referred to unadjudicated charges that were neither supported by additional facts nor verified by the probation officer.   He asserts that the material in the probation report about uncharged offenses relating to his employment in San Diego (at Kearny Mesa Volkswagen) and Oakland (at Downtown Toyota) was improper.   The People argue that this alleged error was waived because defendant failed to object to it.   We agree.

 The proper procedure for challenging the contents of a probation report is to file a statement in mitigation.  (Pen.Code, § 1170, subd. (b).)  Defendant failed to file such a statement.   Moreover, defendant later failed to object to the allegedly impermissible contents of the report at the sentencing hearing.

Unless the record shows an objection to allegedly improper entries in a probation report, such an issue cannot be considered on appeal.  (People v. Medina (1978) 78 Cal.App.3d 1000, 1007, 144 Cal.Rptr. 581.)   Thus, a defendant who fails to timely object has waived that issue.  (People v. Wagoner (1979) 89 Cal.App.3d 605, 616, 152 Cal.Rptr. 639.)   In this case, defense counsel referred to the probation report on many occasions throughout the sentencing hearing;  not once did he object to its contents.   At most, he attempted to use his client's testimony to refute the assertions in the report.   Because defense counsel failed to object to the contents of the probation report, we will not consider this issue now.  (People v. Medina, supra, 78 Cal.App.3d at 1007, 144 Cal.Rptr. 581.)

 Defendant next argues that he was denied his right to receive the probation report nine days prior to the hearing.  (Pen.Code, § 1203, subd. (b).)  The People argue that the defendant waived any objection to the timing of his receipt of the probation report.   Defendant responds that a waiver cannot be implied from his failure to object where the statute provides for an express waiver.   We agree with defendant.

At the commencement of the sentencing hearing in this case, defense counsel mentioned that he had received the probation report one day prior to the hearing.   He made no objection, nor did he ask for a continuance to prepare a response.

Penal Code section 1203, subdivision (b), provides that the probation report must be made available to the defense no later than nine days before the sentencing hearing.   It also specifies that this requirement may be waived by written or in-court oral stipulation.2

The People cite People v. Evans (1983) 141 Cal.App.3d 1019, 190 Cal.Rptr. 633 for the proposition that a defendant's failure to object to a probation report as untimely waives the ability to raise the issue on appeal.   In that case, defendant Evans challenged the contents and timeliness of the probation report on appeal.   The appellate court first held that the defendant failed to comply with the proper procedures for challenging the contents of the probation report, thereby waiving any claim of error in that regard.   With respect to the timeliness issue, the Court of Appeal rejected Evans' claim of error by noting that he had expressly waived his right to have the probation report made available to him at least nine days before sentencing.  (Id., at 1021.)   From this statement, the People draw the conclusion that failure to object to a probation report on timeliness grounds at the sentencing hearing precludes consideration of the timeliness issue on appeal.

We do not read Evans in the expansive manner presented by the People.   Although the opinion does not describe whether Evans stipulated orally or in writing that the sentencing hearing could proceed, the opinion does reference the fact that he expressly waived his right to receive the probation report in a timely fashion.   Failure to object may constitute an implied waiver, but it is not an express waiver.   Thus, Evans does not support the People's position.  Penal Code section 1203, subdivision (b), specifies the manner in which the right to receive a timely probation report may be waived and implied waiver by failure to object is not one of them.  (Cf. People v. Valdivia (1960) 182 Cal.App.2d 145, 147, 5 Cal.Rptr. 832 [the only exception to the two-day requirement of former Penal Code section 1203 was a waiver by stipulation].)  We hold, therefore, that a failure to object to the timeliness of a probation report does not waive a defendant's ability to raise the issue on appeal.

The judgment is reversed and the matter is remanded for resentencing.

FOOTNOTES

1.   People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396 [implicit in a plea bargain is the understanding that the accused will suffer no adverse sentencing consequence by reason of the facts underlying the dismissed count].

2.   Penal Code section 1203 subdivision (b), provides in pertinent part:  “The report shall be made available to the court and the prosecuting and defense attorney at least nine days prior to the time fixed by the court for the hearing and determination of the report, and shall be filed with the clerk of the court as a record in the case at the time of the hearing.   The time within which the report shall be made available and filed may be waived by written stipulation of the prosecuting and defense attorneys which is filed with the court or an oral stipulation in open court which is made and entered upon the minutes of the court.”

SABRAW, Associate Justice.

POCHÉ, Acting P.J., and CHANNELL, J., concur.

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