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Name: People v. Franco
Case #: F067223
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/22/2014

Trial court is not required to obtain a supplemental probation report prior to determining that resentencing a third strike offender would pose an unreasonable risk of danger to public safety. Franco, a defendant serving a life Three Strikes sentence for possession of heroin, petitioned for resentencing after passage of the Three Strikes Reform Act of 2012 (Prop. 36). After a hearing, the trial court denied the petition, finding Franco’s release posed a risk of danger to the public. He appealed, arguing the trial court erred in not obtaining a supplemental probation report prior to denying his petition. Held: Affirmed. Franco did not request a supplemental probation report prior to the hearing on his petition or object to proceeding without one. Where a defendant is not eligible for probation, his failure to request a supplemental probation report forfeits his right to raise the absence of such a report on appeal (but see People v. Dobbins (2005) 127 Cal.App.4th 176 [no such forfeiture where defendant eligible for probation]). On the merits, referral of the matter to the probation officer is discretionary where the defendant is ineligible for probation, unless restitution must be determined (Pen. Code, § 1203, subd. (g); Cal. Rules Court, rule 4.411(b).) Franco was ineligible for probation even as a second strike offender (Pen. Code, §§ 667, subd. (c)(2), 1170.12, subd. (a)(2)). Thus, the trial court had no statutory duty to obtain a supplemental probation report.