Does a defendant have a right to request a new probation report?

The People contend that defendant has waived the issue by failing to request a current probation report and/or failing to object to the court's re-sentencing in the absence of such report. They rely on People v. Brady (1984) 162 Cal.App.3d 1, 208 Cal.Rptr. 21, In re L.S. (1990) 220 Cal.App.3d

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In People v. Magee (1963) 217 Cal.App.2d 443, 31 Cal.Rptr. 658, the court held that trial counsel's statement that it would take three weeks to obtain a report and that " 'we are willing that judgment be pronounced today' " constituted a withdrawal of the application for probation and a waiver of the right to a probation report. (Id., at p. 476, 31 Cal.Rptr. 658.)

In People v. Tempelis (1964) 230 Cal.App.2d 596, 41 Cal.Rptr. 253, the court of appeal found that defendant had waived his right to have the matter referred to the probation officer prior to sentencing. In finding a waiver the court noted that defendant had not objected to being sentenced without a referral and in fact consented to sentencing. On three separate occasions defense counsel stated that there was no legal cause to present as to why defendant should not then be sentenced. (Id., at p. 599, 41 Cal.Rptr. 253.)

A waiver of the right to have the matter referred to the probation officer prior to sentencing was also found in People v. Jones (1966) 244 Cal.App.2d 378, 52 Cal.Rptr. 924 when after the trial court set the matter for hearing three weeks later for receipt of a presentence report, defense counsel expressly stated defendant did not wish to apply for probation and would waive time and be ready for sentencing on the following Monday. (Id., at pp. 382-383, 52 Cal.Rptr. 924.)

[235 Cal.App.3d 1556] Finally in People v. Preyer (1985) 164 Cal.App.3d 568, 210 Cal.Rptr. 807, the court specifically asked whether defendant wanted a new probation report to which counsel stated defendant wanted to be sentenced forthwith and would waive any right to an additional report. The appellate court held "There is no requirement that there be a personal waiver of a supplemental probation report. Counsel's waiver was adequate, and any error was invited by appellant's request to be sentenced forthwith." (Id., at p. 576, 210 Cal.Rptr. 807.)