In a motion to modify a death sentence, does the court need to read and consider a probation report prior to making its decision?

Because there was no recess between the proceedings at which the trial court considered the motion to modify and the proceedings at which it imposed sentence, it appears that at the time it reviewed and ruled upon the application for modification of the penalty the court already had read and considered the probation report. That circumstance did not result in any prejudice to defendant, however. The court did not allude to the probation report during its review and determination of the motion to modify the death verdict. The court reviewed each of the potentially aggravating and mitigating factors, and in determining the nature of, and weight attributable to, each [9 Cal.4th 152] factor, articulated detailed reasons based upon the evidence presented during the trial. Our review discloses that the court made its determination in reliance upon the evidence submitted at trial, placing great weight upon the circumstances of the crime. (People v. Clark, supra, 5 Cal.4th 950, 1038, 22 Cal.Rptr.2d 689, 857 P.2d 1099.) There is no reasonable possibility that the court's apparent

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D. Constitutionality of Penal Code section 190.3

1. Prosecutorial discretion