                       TO BE PUBLISHED IN THE OFFICIAL REPORTS


                            OFFICE OF THE ATTORNEY GENERAL

                                      State of California


                                       DANIEL E. LUNGREN

                                         Attorney General


                           ______________________________________

                   OPINION           :
                                     :          No. 90-802
                  of                 :
                                     :          MARCH 20, 1991
        DANIEL E. LUNGREN            :
           Attorney General          :
                                     :

        ANTHONY S. DaVIGO            :

        Deputy Attorney General      :

                                     :
______________________________________________________________________________

         THE HONORABLE MICHAEL D. BRADBURY, DISTRICT ATTORNEY OF
VENTURA COUNTY, has requested an opinion on the following questions:

               1.   May the district attorney submit a statement in aggravation at the sentencing
phase of a misdemeanor case?

               2.      May a statement in aggravation contain references to matters outside the
record of the case and contain evidence other than by way of testimony?


                                            CONCLUSION


               1.       At the discretion of the trial court, the district attorney may submit a statement
in aggravation at the sentencing phase of a misdemeanor case, provided that the statement consists
of information which could have been included in a probation report.

               2.      Such a statement in aggravation may contain references to matters outside the
record of the case and may contain evidence other than by way of testimony.

                                              ANALYSIS

              In connection with the establishment in 1976 of determinate sentencing for persons
convicted of a felony, Penal Code section 11701 was enacted, providing in subdivision (b) as
follows:


   1
    All section references are to the Penal Code unless otherwise specified.

                                                   1.                                             90-802

                "When a judgment of imprisonment is to be imposed and the statute specifies
       three possible terms, the court shall order imposition of the middle term, unless there
       are circumstances in aggravation or mitigation of the crime. At least four days prior
       to the time set for imposition of judgment, either party or the victim, or the family
       of the victim if the victim is deceased, may submit a statement in aggravation or
       mitigation to dispute facts in the record or the probation officer's report, or to present
       additional facts. In determining whether there are circumstances that justify
       imposition of the upper or lower term, the court may consider the record in the case,
       the probation officer's report, other reports including reports received pursuant to
       Section 1203.03 and statements in aggravation or mitigation submitted by the
       prosecution, the defendant, or the victim, or the family of the victim if the victims
       is deceased, and any further evidence introduced at the sentencing hearing. The
       court shall set forth on the record the facts and reasons for imposing the upper or
       lower term. . . ." (Emphases added.)

               We are now asked to consider whether the prosecution may submit such a statement
in aggravation2 in a misdemeanor case, and if so, whether the statement is limited by law to matters
contained within the record of the case, and whether such matters may be presented only by
testimony.

               No express statutory authority, such as that provided in section 1170 pertaining to
felonies, appears with respect to misdemeanors. As noted in that section, the court must exercise
its option between three possible terms and is required to recite its reasons when electing the upper
or lower term. (§ 1170, subds. (b) and (c).) No similar procedure is prescribed in misdemeanor




  2
    Rule 437 of the California Rules of Court prescribes the content of a Statement in Aggravation
in felony cases:

               ". . . . . . . . . . . . . . . . . . . . . . .

               "(c) A statement in aggravation or mitigation shall include:
              "(1) A summary of facts which the party relies upon as circumstances in
       aggravation or mitigation justifying imposition of the upper or lower term.

               "(2) Notice of intention to dispute facts or offer evidence in aggravation or
       mitigation at the sentencing hearing. The statement shall generally describe the
       evidence to be offered, including a description of any documents and the name and
       expected substance of the testimony of any witnesses. No evidence in aggravation
       or mitigation may be introduced at the sentencing hearing unless it was described in
       the statement, or unless its admission is permitted by the sentencing judge in the
       interests of justice.

               "(d) Assertions of fact in a statement in aggravation or mitigation shall be
       disregarded unless they are supported by the record in the case, the probation
       officer's report or other reports properly filed in the case, or other competent
       evidence."

                                                                2.                                  90-802

cases,3 and the court is not compelled to recite those aggravating or mitigating circumstances which
it may have considered.4

                     With respect to misdemeanors, subdivision (d) of section 1203 provides:

                      "In every case in which a person is convicted of a misdemeanor, the court
              may either refer the matter to the probation officer for an investigation and a report
              or summarily pronounce a conditional sentence. If such a case is not referred to the
              probation officer, in sentencing the person, the court may consider any information
              concerning the person which could have been included in a probation report. The
              court shall inform the person of the information to be considered and permit him or
              her to answer or controvert such information. For this purpose, upon the request of
              the person, the court shall grant a continuance before the judgment is pronounced."5

Under the foregoing section, a court may, but need not, refer the matter to the probation officer for
investigation and report. A court "may consider any information concerning the person which could
have been included in a probation report," when a probation report is not prepared. We discern
nothing in the latter provision which prohibits the court from allowing the prosecution to submit a
statement in aggravation, provided that such information could have been included in a probation
report.6 Moreover, as we shall demonstrate, the probation report may contain written statements
from prosecuting attorneys. As long as the defendant is given an opportunity to answer the
statement, we do not distinguish between such a statement whether contained in a probation report,
filed directly with the court by the prosecuting attorney, or made in open court at the hearing.

                 Consequently, in answer to the first question, the trial court has discretion to allow
the district attorney to submit a statement in aggravation in a misdemeanor case if the statement
consists of information which could have been included in a probation report.7 If the court elects

      3
       Section 19 provides generally:

                       "Except in cases where a different punishment is prescribed by any law of
              this state, every offense declared to be a misdemeanor is punishable by imprisonment
              in the county jail not exceeding six months, or by fine not exceeding one thousand
              dollars ($1,000), or by both."
          4
    Inasmuch as the express authorization for submission by the prosecution of a statement in
aggravation was enacted as part of the determinate sentencing procedure in felony cases (Stats.
1976, ch. 1139 § 273), the lack of a similar specific reference in misdemeanor cases is
understandable.
  5
   A "conditional sentence" is "the suspension of the imposition or execution of a sentence and the
order of conditional and revocable release in the community subject to the conditions established
by the court without the supervision of the probation officer." (§ 1203, subd. (a).)
  6
   Subdivision (d) of section 1203 constitutes an express grant of authority to the court to "consider
any information . . ." if it chooses to "summarily pronounce a conditional sentence." We do not view
such language as a limitation placed upon the court where a probation report is ordered.
          7
     In addition, the prosecutor is expressly authorized to reply to the filing of a report by the
defendant pursuant to section 1204, infra. With specific regard to the prosecutor representing the
views of the victim, see sections 679.02, 1191.1, and 1191.15.

                                                        3.                                             90-802

to take such information into consideration, it must inform the defendant of the information and
provide the defendant with an opportunity to answer or controvert it. (§ 1203, subd. (d).) This
notice requirement is consistent with the constitutional right of due process during the proceedings
leading to the imposition of sentence. (Cf. Gardner v. Florida (1977) 430 U.S. 349, 358.)

                With regard to the second question concerning references to matters outside the
record contained in a statement in aggravation, it is first noted that such references may be contained
in a probation report.8 In People v. Valdivia (1960) 182 Cal.App.2d 145, 148, the court stated:

                   "A probation officer could not make an investigation and report of the nature
            required by Penal Code, section 1203, if restricted to the rules of evidence. Much
            of the prior record and history of a defendant, as well as the circumstances
            surrounding the crime, are hearsay and can be investigated and reported upon only
            by the use of hearsay information. It is clear that Penal Code, section 1203,
            contemplates the inclusion of hearsay matter in the probation officer's report."

(See also People v. Zikorus (1983) 150 Cal.App.3d 324, 334; People v. Betterton (1979) 93
Cal.App.3d 406, 414.) It has been held that "[a] sentencing judge `may, consistently with the Due
Process Clause of the Fourteenth Amendment, consider responsible unsworn or "out-of-court"
information relative to the circumstances of the crime and to the convicted person's life and
characteristics.'" (People v. Arbuckle (1978) 22 Cal.3d 749, 754; see also People v. Cheatham
(1979) 23 Cal.3d 829, 835; People v. Zikorus, supra, at 333; People v. Betterton, supra, at 415.)9

              Since subdivision (d) of section 1203 allows a court to "consider any information
concerning the person which could have been included in a probation report," the prosecutor's
statement in aggravation may similarly contain references to matters outside the record in a
misdemeanor case. Of course, the defendant must then be given the right to controvert such
information. (See People v. Valdivia, supra, 182 Cal.App.2d at 148-149; see also In re Cortez
(1971) 6 Cal.3d 78, 88.)

               With respect to the final issue concerning whether a prosecutor may present evidence
other than by way of testimony in a statement in aggravation, section 120410 provides:

                    "The circumstances shall be presented by the testimony of witnesses
            examined in open court, except that when a witness is so sick or infirm as to be
            unable to attend, his deposition may be taken by a magistrate of the county, out of
            court, upon such notice to the adverse party as the court may direct. No affidavit or

  8
    The content of a probation officer's presentence report in a felony case is prescribed by rule 419
of the California Rules of Court, including prior criminal conduct, information from and concerning
the victim, the defendant's social history, and collateral information including written statements
from prosecuting attorneys. Section 1203.10 provides generally that the probation officer shall,
when so directed by the court, "inquire into the antecedents, character, history, family environment,
and offense of such person . . . ."
   9
    It is clear, however, that the court may not consider ex parte information from the prosecution.
(In re Calhoun (1976) 17 Cal.3d 75, 83-84; People v. Hernandez (1984) 160 Cal.App.3d 725, 741.)
       10
     In the absence of express legislation on the subject, the policy enunciated in section 1204
governs in misdemeanor as well as felony cases. (Cf. People v. Giles (1945) 70 Cal.App.2d Supp.
872, 879.)

                                                     4.                                             90-802

          testimony, or representation of any kind, verbal or written, can be offered to or
          received by the court, or a judge thereof, in aggravation or mitigation of the
          punishment, except as provided in this and the preceding section. This section shall
          not be construed to prohibit the filing of a written report by a defendant or
          defendant's counsel on behalf of a defendant if such a report presents a study of his
          background and personality and suggests a rehabilitation program. If such a report
          is submitted, the prosecution or probation officer shall be permitted to reply to or to
          evaluate the program."

Under this section, testimony may be taken in court or, under prescribed circumstances, by
deposition. Section 1204, however, also refers to a "representation of any kind" in addition to an
"affidavit or testimony" and to information submitted pursuant to "the preceding section" (§ 1203).
It has not been construed, therefore, to limit the presentation of aggravating or mitigating
circumstances to verbal or written testimony, but rather as allowing the presentation of any
"evidence." (See In re Calhoun, supra, 17 Cal.3d at 84; In re Cortez, supra, 6 Cal.3d at 88; People
v. Valdivia, supra, 182 Cal.App.2d at 149; People v. Neal (1950) 97 Cal.App.2d 668, 676.) In
People v. Hernandez, supra, 160 Cal.App.3d at 741, the court summarized these judicial holdings
as follows:

                  "It is, therefore, evident that the information the court may receive at a Penal
          Code section 1204 hearing is evidence which means, in essence, facts. `"Evidence"
          means testimony, writings, material objects, or other things presented to the senses
          that are offered to prove the existence or nonexistence of a fact.' (Evid. Code, §
          140.)"11

               It is concluded that a statement in aggravation presented by the district attorney in
a misdemeanor case at the discretion of the trial court may contain references to matters outside the
record and contain evidence other than by way of testimony, provided the defendant is granted an
opportunity to respond.


                                                 *****




   11
        See also California Rules of Court, rule 437, subdivision (d):

                  "Assertions of fact in a statement in aggravation or mitigation shall be
          disregarded unless they are supported by the record in the case, the probation
          officer's report or other reports properly filed in the case, or other competent
          evidence." (Emphasis added.)

                                                    5.                                               90-802
