(a) When required.
As provided in subdivision (b), the court must refer the case to the probation officer for:
(1) A presentence investigation and report if the defendant:
(A) Is statutorily eligible for probation or a term of imprisonment in county jail under section 1170(h); or
(B) Is not eligible for probation but a report is needed to assist the court with other sentencing issues, including the determination of the proper amount of restitution fine;
(2) A supplemental report if a significant period of time has passed since the original report was prepared.
(Subd (a) amended effective January 1, 2018; previously amended effective January 1, 2007, and January 15, 2015.)
(b) Waiver of the investigation and report.
The parties may stipulate to the waiver of the probation officer's investigation and report in writing or in open court and entered in the minutes, and with the consent of the court. In deciding whether to consent to the waiver, the court should consider whether the information in the report would assist in the resolution of any current or future sentencing issues, or would assist in the effective supervision of the person. A waiver under this section does not affect the requirement under section 1203c that a probation report be created when the court commits a person to state prison.
(Subd (b) amended effective January 1, 2018; previously amended effective January 1, 2015.)
Rule 4.411 amended effective January 1, 2018; adopted as rule 418 effective July 1, 1977; previously amended and renumbered as rule 411 effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective January 1, 2006, January 1, 2007, and January 1, 2015.
Advisory Committee Comment
Section 1203 requires a presentence report in every felony case in which the defendant is eligible for probation. Subdivision (a) requires a presentence report in every felony case in which the defendant is eligible for a term of imprisonment in county jail under section 1170(h).
When considering whether to waive a presentence investigation and report, courts should consider that probation officers' reports are used by (1) courts in determining the appropriate term of imprisonment in prison or county jail under section 1170(h); (2) courts in deciding whether probation is appropriate, whether a period of mandatory supervision should be denied in the interests of justice under section 1170(h)(5)(A), and the appropriate length and conditions of probation and mandatory supervision; (3) the probation department in supervising the defendant; and (4) the Department of Corrections and Rehabilitation, Division of Adult Operations, in deciding on the type of facility and program in which to place a defendant.
Subdivision (a)(2) is based on case law that generally requires a supplemental report if the defendant is to be resentenced a significant time after the original sentencing, as, for example, after a remand by an appellate court, or after the apprehension of a defendant who failed to appear at sentencing. The rule is not intended to expand on the requirements of those cases.
The rule does not require a new investigation and report if a recent report is available and can be incorporated by reference and there is no indication of changed circumstances. This is particularly true if a report is needed only for the Department of Corrections and Rehabilitation because the defendant has waived a report and agreed to a prison sentence. If a full report was prepared in another case in the same or another jurisdiction within the preceding six months, during which time the defendant was in custody, and that report is available to the Department of Corrections and Rehabilitation, it is unlikely that a new investigation is needed.
This rule does not prohibit pre-conviction, pre-plea reports as authorized by section 1203.7.