Is a defendant's failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal?

California, United States of America


The following excerpt is from People v. Scott, 21 Cal.App.4th 383, 26 Cal.Rptr.2d 501 (Cal. App. 1993):

"It is settled that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal. [Citations.] No different rule should generally apply to probation conditions under consideration at the same time. A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. The parties must, of course, be given a reasonable opportunity to present any relevant argument and evidence. A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis. [Citations.]" (People v. Welch, supra, 5 Cal.4th at pp. 234-235, fn. omitted, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

In arriving at its holding, the court in Welch recognized the sentencing court's broad discretion to determine whether a defendant is suitable for probation and what conditions should be imposed. (People v. Welch, supra, 5 Cal.4th at p. 233, 19 Cal.Rptr.2d 520, 851 P.2d 802.) The court noted the statutory scheme for probation consideration ( 1203-1204, which require a presentence investigation and report that is available to the court and parties within a specified time before sentencing and require a hearing about the report and its recommendations, and permit the taking of additional evidence) "obviously contemplates that [21 Cal.App.4th 397] all issues relevant to the probation determination will be litigated in the sentencing court." (Id. at p. 234, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

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