Identify the exact sentence that is wrong, locate the source record that corrects it, and give both to your lawyer before sentencing. A presentence report may affect the court’s sentencing decision, but disagreeing with a probation officer’s recommendation is different from showing that a factual statement is inaccurate.

For a felony report under Penal Code § 1203(b), the report must be available to the court and both attorneys at least five days before the hearing to consider it, or nine days if the defendant or prosecutor requests that period. Counsel can waive the timing by a written stipulation filed with the court or an oral stipulation entered in the court minutes. (Penal Code § 1203(b)(2)(E)) If you do not have an attorney, section 1203(c) requires the court to direct the probation officer to discuss the report with you. Ask the court or counsel how to obtain the report in your case.

Compare the disputed statement with its source

Make a short list that identifies the report page and paragraph, the exact assertion, and the record that appears to conflict with it. Depending on the issue, compare:

  • the case number, conviction, enhancements, and disposition against certified court records;
  • arrest dates and prior-history entries against dockets and judgments;
  • custody dates against booking, release, transfer, and jail records;
  • statements attributed to a person against the source identified in the report; and
  • recommended conditions against the sentencing order and facts relevant to the recommendation.

California Rule of Court 4.411.5 addresses report contents and source identification, including custody dates and factual support for arrests or charges that did not result in conviction. (California Rules of Court, rule 4.411.5) A record comparison is more useful than a bare statement that the report is unfair. Keep a copy of the report and the source records you give counsel.

Not every objection triggers the same hearing

If a dispute concerns a fact on which the conviction rested, Rule 4.437(e) requires a presentence hearing; the court must make appropriate corrections, additions, or deletions, or order a revised report. That rule does not require a hearing for every disagreement about social history, the probation officer’s characterization, or a sentencing recommendation. (California Rules of Court, rule 4.437(e))

Statements in aggravation or mitigation have separate filing, service, notice-of-evidence, and support requirements under the rest of Rule 4.437. Counsel can determine how to raise a particular factual correction and whether another procedure applies. Do not assume that sending a letter to probation changes the court’s record.

If an error is discovered after sentencing, tell counsel promptly and preserve the report, the source record, and the sentencing documents. Whether a court can correct the report or another record depends on the type of error and the procedural posture.

The firm’s sentencing advocacy page discusses preparation for sentencing. For help comparing a report with court records, contact the Law Offices of David S. Chesley at (800) 755-5174.