Can a probation officer's report be used to determine the sentence of a defendant who has not received a probation report?

California, United States of America


The following excerpt is from People v. Askew, B229838 (Cal. App. 2012):

Byrd contends that because it is impossible to determine what the probation report would have said, there is a reasonable possibility the court might have imposed a more favorable sentence if a report had been prepared. The Attorney General responds that the absence of a probation report was harmless because, given "Byrd's prior felony convictions and prison terms, a probation officer's report would only have served to highlight and emphasize such negative sentencing concerns." There are cases supporting both positions. (See People v. Mariano (1983) 144 Cal.App.3d 814, 824-825 ["where a current probation report is required, that right is considered fundamental and its abridgement is generally treated as reversible error"]; but see People v. Dobbins, supra, 127 Cal.App.4th at p. 182 [the failure to obtain a probation report is harmless if "we must speculate concerning how information in a probation report could have affected the trial court's decision"].)

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