Does a judge need to consider a probation officer's report before making a decision on a modification?

A judge should not consider the probation officer's report prior to ruling on a modification motion. In making that ruling the judge is limited to consideration of the evidence that was before the penalty jury. (People v. Gonzalez, supra, 51 Cal.3d 1179, 1238, 275 Cal.Rptr. 729, 800 P.2d 1159.) While the recitals of the judge state only that the report had been reviewed prior to "sentencing," that statement was made at the hearing in which the motion for modification was denied. The record supports defendant's assumption that the judge had already reviewed the

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