Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. MCR 416066.
NEEDHAM, J.
Diego Quiroz (Quiroz) appeals from a judgment of conviction and sentence entered after he pleaded guilty to voluntary manslaughter and burglary. He contends: (1) the acceptance of his guilty plea and imposition of the upper term of sentence, without an adequate waiver of his right to a jury trial on aggravating factors, violated the Sixth Amendment; (2) his sentence constitutes cruel and unusual punishment; (3) he was denied due process when the court failed to exercise its discretion to determine whether his sentence was unduly harsh compared to his codefendants; and (4) the probation report did not conform to the requirements of the California Rules of Court in failing to provide information concerning his family background.
Quiroz’s arguments have no merit. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
A fourth amended complaint charged Quiroz with murder (Pen. Code, § 187), robbery (§ 211), burglary (§ 459), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and false imprisonment (§ 236), perpetrated against Christos “Pete” Magoulas on February 16, 2003. Charged with the same offenses were: Larry Lewis, Julio Almaraz, Victoriano Jimenez, Jerrin Johnson, Jamie Herrala, Diego Carreon and Ezequiel Roman.
Unless otherwise indicated, all statutory references are to the Penal Code.
A. Underlying Facts
Because Quiroz pleaded guilty to the underlying charges, we summarize the facts by quoting the probation department’s presentence report.
“The fifty-six year old victim was watching television inside his residence when at least six suspects entered his home to commit a robbery. Three suspects, later determined to be Jerrin Johnson, Diego Carreon, and Larry Lee Lewis, snuck up on the victim and attempted to restrain him, while additional suspects, later determined to be Diego Quiroz (the defendant), Julio Almaraz, and Ezequiel Roman began ransacking the home, while looking for valuable property. The victim’s ten-year-old son was in the residence when his [f]ather was attacked and subsequently fled to get help. During the struggle, Johnson reportedly struck the victim several times causing blunt force injuries. The defendants tied the victim’s hands behind his back, and Johnson sat on top of him, preventing him from moving, while the remainder of the group stole property. At some point, the victim stopped moving, and became lifeless. The suspects were in the process of removing property from the residence, including a big screen television, as a neighbor responded to the scene. The defendants subsequently fled the residence, taking numerous items of value, including the family dog. [¶] Shortly after the incident, the victim’s fifteen-year-old found his father dead, with his hands bound behind his back. The cause of death was determined to be sudden cardiac death (“heart attack”) due to violence induced stress related to the home invasion robbery. A thorough investigation revealed the identity of the suspects, and it was discovered that an ex-girlfriend of the victim’s stepson organized the offense and provided them with detailed information about the residence, including a map. They planned to commit the burglary on the same day of her son’s birthday, with the expectation that the victim’s family would attend and not be home.”
B. Plea and Sentence
On July 20, 2006, the complaint was amended to charge voluntary manslaughter (§ 192). Represented by counsel, and pursuant to a negotiated plea agreement, Quiroz then entered guilty pleas to residential burglary (Count III) and voluntary manslaughter (Count VI). The other four counts against Quiroz were dismissed. As a term of the plea agreement, Quiroz stipulated that he would receive a sentence of 12 years four months, comprised of an upper 11-year term for manslaughter and a consecutive 16-month term for burglary. The matter was continued for sentencing.
The clerk’s minutes specified that Quiroz was stipulating to an “aggravated term of 11yrs for ct 6 plus consecutive 1yr 4mos for ct 3 for total of 12yrs 4mos.” (Italics added.) In describing the negotiated disposition to the court, the prosecutor stated: “And there is a stipulated aggravated term of 11 years in state prison [as to count 6].” (Italics added.) Defense counsel agreed that this was counsel’s and Quiroz’s understanding of the agreement.
The probation report identified several aggravating factors for sentencing purposes under the California Rules of Court: the crimes involved a high degree of viciousness and resulted in the victim’s death (rule 4.421(a)(1)); the victim was particularly vulnerable (rule 4.421(a)(3)); the manner in which the crime was carried out demonstrated significant criminal planning and sophistication (rule 4.421(a)(8)); the crime involved the taking of items that had a great monetary value (rule 4.421(a)(9)); Quiroz engaged in violent conduct which indicates a serious danger to society (rule 4.421(b)(1)); Quiroz’s prior performance on juvenile probation was unsatisfactory (rule 4.421(b)(5)); and the offense was a “serious/violent felony in which the victim was bound” (rule 4.421(c); § 1170.84). The only cited mitigating circumstance was that Quiroz had a limited record of prior convictions. The report noted, however, that his criminal history was significant because he sustained a juvenile conviction for a felony violation of section 496, subdivision (a) (possession of stolen property).
Quiroz claimed to have no recollection of the home invasion robbery due to injuries he sustained in Mexico, where he had fled after his crimes. He expressed no remorse for the victim, the victim’s family, or his involvement in the offenses. The report added: “Probation is also concerned about Quiroz’s two and a half year flight from justice, and his decision to flee the Country and reside in Mexico. It is clear that Quiroz had no intention of returning to take responsibility for his actions, and would likely still be in Mexico, had he not been brought to the attention of authorities because of his severe injuries.”
The probation report did not provide a separate section addressing Quiroz’s family background. But it did state that Quiroz dropped out of school in the ninth grade due in part to problems he had with his father, and it further noted that Quiroz began drinking alcohol and using marijuana at around 13 years of age. The report also mentioned that, as a result of the injuries he sustained in Mexico, he no longer had feeling in his legs below his knees and believed he might never walk again without assistance.
In its overall evaluation, the probation report observed: “It appears that Quiroz was a participant in the planning of the crime from the early stages, and certainly did nothing to render aid to the victim when he was in distress. His lack of remorse, whether or not he actually remembers his conduct, is quite disturbing. It is felt that the defendant is deserving of as lengthy a prison term as possible.” The probation department recommended imposition of the upper term.
At the sentencing hearing on September 25, 2006, Quiroz’s attorney confirmed Quiroz’s stipulation to a term of 12 years four months and represented that he and Quiroz had “no problem with the sentence.” Defense counsel did express concern, however, with the lack of information in the probation report concerning Quiroz’s family background and medical condition. Counsel explained that Quiroz lost contact with his father at an early age and had several siblings with criminal records. He added that the court might know about Quiroz’s home life, including Quiroz’s lack of parental guidance, “from other presentence reports.” Counsel then represented: “There is a lot of information that should be attached to the presentence report that will be useful for CDC when they determine placement. So all that information should be in the presentence report. I can prepare the information and—but it’s a statement of mitigation. I really don’t—I am not complaining about the sentence.” In addition, counsel suggested the matter be referred back to the probation department for a more complete report.
The sentencing judge indicated his willingness to provide defense counsel with time to prepare the information and attach it to the presentence report. Counsel agreed to provide the information and reiterated that it was sought solely to assist the Department of Corrections in determining what placement or treatment Quiroz might obtain, since he and Quiroz had “no qualm with the sentence.” As reflected in the court’s minutes, Quiroz’s attorney was to “prepare & submit information as to the defendant’s medical information & family history by 10/23/06.”
The sentencing hearing reconvened on November 29, 2006. Defense counsel declined to present any further information about Quiroz’s medical condition or family background. He explained: “The one thing – the reason the matter had been committed or had been continued several times was the issue of family background. And I had stated to the court I was going to submit something regarding his family background, but in rethinking it, in light of subsequent developments that is probably not a good idea because right now Mr. Quiroz is being treated at the jail as if he was a gang member or had some gang associations for which he does not.”
The court sentenced Quiroz to an aggregate term of 12 years four months in state prison, just as Quiroz had agreed in his plea agreement.
Quiroz filed a notice of appeal on December 26, 2006. On his appeal form, he checked the box indicating that he was challenging his sentence or other matter occurring after the plea, and not the validity of the plea. He nonetheless completed a Request for Certificate of Probable Cause on the back of the form, complaining that (1) his attorney did not explain why he was ineligible for “half time” for his first felony conviction and (2) he did not understand why he was going to receive two strikes. He also accused his attorney of never fully making “an effort” in his case because he was representing Quiroz’s brother’s codefendant in a murder case “and he wanted to move on.” The court did not grant or deny the certificate. On January 10, 2007, the court received another document from Quiroz with a similar statement, which the court also did not act upon.
II. DISCUSSION
We address each of Quiroz’s contentions in turn.
A. Imposition of Upper Term Pursuant to The Plea Agreement
Quiroz contends that the imposition of the upper term on Count VI pursuant to his plea agreement violated the Sixth Amendment, because he did not expressly waive his right to a jury trial and findings beyond a reasonable doubt on aggravating factors. (See Cunningham v. California (2007) 127 S.Ct. 856.) He argues that his express stipulation to the upper term in his plea agreement did not constitute a waiver, because at that time California law held that he did not have such rights. (See People v. Black (2000) 35 Cal.4th 1238 (Black I).) Because the sentence imposed was the sentence to which he agreed in his plea bargain, however, his challenge is not cognizable as a matter of law.
Although Quiroz stipulated to imposition of the upper term, he did not expressly admit any aggravating factors, such as those listed in the subsequent probation report. He explicitly waived his right to a jury trial as to all “charges, allegations, and prior convictions,” but not specifically as to aggravating factors. Nonetheless, Quiroz’s argument seems rather curious: he contends that he did not waive his right to a jury trial on aggravating factors because at the time of his plea agreement he had no such right; yet he contends the trial court erred for failing to obtain a waiver of this very right he did not possess. We need not resolve this conundrum, because Quiroz cannot challenge his sentence for the reasons stated in the text.
1. Absence of Certificate of Probable Cause
Section 1237.5 provides: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.[¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” (Italics added.) This provision should be strictly enforced. (People v. Mendez (1999) 19 Cal.4th 1084, 1098, 1100.)
Two types of issues may be raised notwithstanding the absence of a probable cause certificate: certain search and seizure issues; and issues regarding proceedings held subsequent to the plea for the purposes of determining the degree of the crime and the sentence. (People v. Panizzon (1996) 13 Cal.4th 68, 74 (Panizzon).) However, where the parties have agreed to a specific sentence as part of the plea agreement, a challenge to that sentence constitutes a challenge to the validity of the plea, and a certificate of probable cause must be obtained. (Panizzon, supra, 13 Cal.4th at p. 79 [challenge to a sentence that was imposed as part of a plea bargain was a challenge to the validity of the plea itself, requiring defendant to obtain a probable cause certificate]; People v. Young (2000) 77 Cal.App.4th 827, 832 (Young) [by claiming the maximum sentence he received pursuant to his plea agreement was unconstitutional, appellant was attacking validity of plea and had to obtain probable cause certificate].)
Here, Quiroz challenges the constitutionality of the upper term sentence that was a part of his plea agreement. While Quiroz filed a notice of appeal and requested a certificate of probable cause, he did not obtain one. The absence of a certificate of probable cause precludes Quiroz’s Sixth Amendment challenge.
The recent case of People v. French (2008) 43 Cal.4th 36 (French) is not to the contrary. There, the defendant agreed that he would receive an aggregate sentence of not more than 18 years in prison for multiple offenses. (Id. at p. 42.) In sentencing him to the 18 years, the trial court opted for the upper term on one of the counts, based on its finding of an aggravating factor. (Id. at p. 43.) Our Supreme Court held that the defendant’s subsequent challenge to the upper term on that count under Cunningham was not an attack on the validity of his plea agreement, and a certificate of probable cause was not required. (Id. at p. 45.) The court noted that, upon remand, the prosecution would still have the opportunity, as it did originally under the plea agreement, to convince the trial court that the upper term should be imposed. (Id. at pp. 45-46.) As the court noted elsewhere in its opinion, however, there is a fundamental distinction between a plea agreement in which a defendant (like French) stipulates to a maximum term—reserving the right to argue that he should obtain less than the maximum due to the absence of aggravating factors—and an agreement in which a defendant (like Quiroz) stipulates specifically to the imposition of the upper term. (Id. at p. 49.) An attack on the imposition of the upper term in the latter instance is unquestionably a challenge to an express term of the agreement. Furthermore, to hold now that Quiroz could get out of the upper term to which he agreed would either deprive the People of the upper term for which they bargained or burden the People with having to prove an aggravating factor that they did not have to prove under the plea agreement. (See also French, supra, 43 Cal.4th at p. 46 fn. 2 [disapproving People v. Bobbit (2006) 138 Cal.App.4th 445, which had held that a certificate of probable cause was not required for challenging a sentencing lid of 12 years eight months].)
In an attempt to avoid Panizzon and its progeny, Quiroz insists he is not contending there was anything wrong with the plea agreement itself, but simply that the court erred in imposing the sentence. His assertion is difficult to accept, since in the next breath—or at least the same page of his brief on the issue of estoppel—Quiroz represents there was a “constitutional defect in the agreement,” and the “defect in this case was that Quiroz gave up—without knowing that he had them—his rights to a jury trial and proof beyond a reasonable doubt of aggravating factors, which were necessary to the imposition of an upper term.” (Italics added.) In any event, to the extent Quiroz challenges not the plea agreement, but the court’s subsequent decision to impose the sentence to which Quiroz had agreed, we address his arguments in our discussion of section 1192.5, post.
2. Estoppel
A defendant who negotiates for and accepts the benefit of a specified prison term may be estopped from later complaining about his sentence. (People v. Jones (1989) 210 Cal.App.3d 124, 136-137 [defendant estopped from challenging the erroneous imposition of a second five-year enhancement under § 667, subd. (a) pursuant to his plea bargain, where his aggregate 12-year, four-month sentence was less than he would have received if convicted of the charges]. See also People v. Hester (2000) 22 Cal.4th 290, 295 [in appeal of unauthorized sentence, no error even if trial court acted in excess of its jurisdiction, where defendant pleaded guilty in return for a specified sentence]; People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1058 [acceptance of plea bargain implies that defendant waived his rights under rules that would have required a more lenient sentence].)
Here, Quiroz stipulated to a prison term of 12 years four months, thereby gaining dismissal of the murder, robbery, and false imprisonment charges. Quiroz received the benefit of his bargain and is estopped from challenging his sentence.
Quiroz counters that estoppel should not apply because, in entering into the plea agreement, he “gave up—without knowing that he had them—his rights to a jury trial and proof beyond a reasonable doubt of aggravating factors, which were necessary to the imposition of an upper term.” His contention might arguably apply to application of the waiver doctrine—which requires voluntary relinquishment of a known right—but Quiroz fails to establish that it can also apply to the separate doctrine of estoppel. To the contrary, estoppel arises simply because of the benefit Quiroz received and the prosecution’s change in position in reliance on his plea agreement. (See People v. Beebe (1989) 216 Cal.App.3d 927, 932-933 [defendant estopped from withdrawing from plea bargain].) In addition, when Quiroz entered his plea and was sentenced, the Cunningham case was pending in the United States Supreme Court. The potential for Black I to be overturned was clear, yet Quiroz agreed to the upper term. For him to assert a claim based on Cunningham, now that the decision turned out in his favor, would be trifle with the justice system. (Jones, supra, 210 Cal.App.3d at pp. 136-137.)
There is no indication in the record that defense counsel failed to advise Quiroz fully in regard to his plea. While Quiroz alludes to making an ineffective assistance of counsel claim in another forum, he makes no such claim in this appeal.
Moreover, by accepting the upper sentence at the sentencing hearing—after the presentence report had delineated several aggravating factors—it can fairly be said that Quiroz implicitly admitted the aggravating factors justifying an upper term. On that basis, imposition of the aggravated sentence was in accord with Cunningham. At the very least, Quiroz led the court and prosecutor to believe he would not dispute the existence of aggravating factors sufficient to warrant the upper term.
For all of these reasons, Quiroz cannot now complain of the sentence to which he agreed.
Another reason is that Quiroz has not shown prejudice from the court’s failure to obtain an express waiver of his jury trial right on aggravating factors. He claims he was prejudiced because he likely would not have waived the right, since there was a lack of aggravating factors and a number of mitigating factors. However, there were actually seven aggravating factors and just one mitigating factor noted in the probation report.
B. Cruel and Unusual Punishment
Quiroz claims that his sentence constitutes cruel and unusual punishment, because he was perhaps the least culpable of all the defendants. He maintains that Magoulas was killed not by Quiroz, but by Johnson, with assistance from Carreon and Lewis. Johnson pleaded guilty to manslaughter and received a sentence that was three years eight months longer than Quiroz’s. Lewis pleaded guilty to manslaughter and received an 11-year sentence, which was one year four months less than Quiroz. Furthermore, Quiroz argues, he had nothing to do with the planning of the burglary and he was not a leader in its execution.
We begin by noting that the record does not support a factual assumption on which Quiroz bases his argument. The probation report indicates that the person who concocted the scheme to rob the Magoulas house—the victim’s stepson’s former girlfriend—showed a diagram of the victim’s residence to those who were going to perpetrate the burglary and, in fact, drove Quiroz and others by the victim’s house in the weeks before the murder. Quiroz was indeed involved with the planning of the burglary. As the probation report concluded: “It appears that Quiroz was a participant in the planning of the crime from the early stages, and certainly did nothing to render aid to the victim when he was in distress.”
In any event, as a matter of law, Quiroz cannot now challenge his sentence on the grounds of cruel and unusual punishment. In the first place, a constitutional attack on a sentence as cruel or unusual requires a certificate of probable cause. (Panizzon, supra, 13 Cal.4th at p. 78 [challenge to sentence on ground it was disproportionate to sentences imposed on codefendants and thus violative of federal and state prohibitions against cruel and unusual punishment]; People v. Cole (2001) 88 Cal.App.4th 850, 862; Young, supra, 77 Cal.App.4th at p. 829.) The absence of a certificate of probable cause precludes Quiroz’s challenge.
In addition, Quiroz failed to raise a claim in the trial court that his sentence constituted cruel or unusual punishment. He therefore waived such a challenge on appeal. (See People v. Norman (2003) 109 Cal.App.4th 221, 229 [defendant forfeited his claim of cruel and unusual punishment by failing to object in the trial court]; People v. DeJesus (1995) 38 Cal.App.4th 1, 27 [challenge to court’s refusal to reduce convictions based on the constitutional prohibition against cruel and unusual punishment is waived if not raised in the trial court].)
C. Section 1192.5
Section 1192.5 provides: “If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.” (§ 1192.5, para. 3. See People v. Akins (2005) 128 Cal.App.4th 1376, 1385 [court retains discretion not to sentence in accordance with the terms of the plea, “especially if it subsequently learns of facts or law that render the agreed sentence inappropriate”].)
Quiroz contends that section 1192.5 imposes upon the trial court not only a duty to inform the defendant of the possibility that the court might withdraw its approval of the plea agreement, but also a duty to scrutinize the propriety of the sentence to which the defendant agreed, in light of favorable information that may surface after entry of the plea. Further, Quiroz argues, the record does not show that the trial court gave any consideration at all to the disparity between the sentence to which Quiroz agreed and the sentences imposed on the other defendants, or to Quiroz’s relative lack of culpability, even though that information came to light after acceptance of the plea and before sentencing. He further charges that the court made no assessment of whether the sentence was appropriate in light of Quiroz’s lack of prior record, family background, and medical condition.
1. Absence of Certificate of Probable Cause
Here again, Quiroz is challenging his plea agreement, because he is challenging the imposition of the specific sentence to which he agreed. The issue is not cognizable on appeal because Quiroz failed to obtain a certificate of probable cause. (People v. Vargas (2007) 148 Cal.App.4th 644, 651-652 [“In other words, if the defendant agreed to a specific sentence as part of his plea agreement the sentence is an issue that arose before entry of the guilty plea, and in order to challenge that sentence on appeal, the defendant must obtain a certificate of probable cause.”].)
Quiroz argues that this is not an attack on the validity of the plea but on the failure of the court to carry out its duty, after tentatively approving the plea, to give “further consideration to the matter” at the time of pronouncement of judgment, in order to determine whether the agreed-upon sentence was appropriate, and to exercise its discretion to continue to approve of it or to withdraw its approval under section 1192.5. (§ 1192.5, 3rd para.) According to Quiroz, the issue is whether the court gave any consideration at all as to whether a shorter term was appropriate. However, no matter how Quiroz slices and dices it, the fact remains that his challenge is to the sentence to which the parties agreed. “In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’” (Panizzon, supra, 13 Cal.4th at p. 76. Italics added.) Quiroz presents no authority for the proposition that he can challenge without a certificate of probable cause the court’s decision to impose the sentence to which the parties agreed as part of the plea bargain.
2. No Error
Although respondent’s brief misses the point of Quiroz’s arguments, his arguments are nonetheless without merit, even if they were not precluded by the failure to obtain a certificate of probable cause. Assuming arguendo that section 1192.5 imposed on the trial court a duty to consider the propriety of the sentence—as opposed to merely warning the defendant that the court might give further consideration of the sentence—the record does not show that the court failed to consider the information that arose after Quiroz entered his plea. At no time did the court state that it was disregarding information concerning Quiroz’s relative culpability and any information the court had concerning the codefendant’s sentences. Nor did the court state that it would not consider whether a lesser sentence might be appropriate. In fact, the defense never even requested the trial court to consider further the sentence to which the parties had agreed: counsel did not object to the sentence at the hearing, but affirmatively acknowledged that Quiroz would receive the stipulated term of 12 years four months and repeatedly represented that neither counsel nor Quiroz had any objection whatsoever to the agreed-upon term.
Moreover, the record is entirely consistent with the court having considered carefully the sentence to which Quiroz agreed and deciding that it was entirely appropriate. Quiroz received a term of 12 years four months for his two admitted offenses, while obtaining dismissal of four other charges. The probation report listed seven aggravating factors (when California law did not require proof of aggravating factors beyond a reasonable doubt) and no mitigating factor other than the absence of an extensive prior criminal record—and even at that, the report pointed out the seriousness and relevance of his prior juvenile conviction for felony possession of stolen property. While Quiroz asserts he was less culpable than his cohorts, it does not mean that he was undeserving of his sentence in light of the crimes he committed. He helped to plan and perpetrate a home invasion robbery in which the victim was killed; he helped to fence the stolen property; then he ran away to Mexico, returning only for the purpose of receiving medical treatment. Never did he indicate any remorse for the victim or the victim’s family to the probation officer.
In an attempt to persuade us that the trial court nonetheless refused to consider the propriety of the sentence, Quiroz refers us to part of the sentencing judge’s statement to defense counsel regarding the inadequacy of the probation report: “The only way you are going to get all your specifics addressed in today’s world is if you do it yourself unless you go down and dictate to the probation what it is you want them to do which may not necessarily always work out real well.” Quiroz argues that this statement shows that the court did not care about the matters it should have considered if it really wanted to perform its purported duty to consider Quiroz’s social history and family background. This argument is unconvincing.
Because appellate counsel misconstrues the record, we set forth the full passage from which he plucks the excerpt on which he relies. At the sentencing hearing on September 25, 2006, Quiroz’s attorney confirmed that Quiroz stipulated to a term of 12 years four months and represented that he and Quiroz had “no problem with the sentence.” Counsel expressed concern about the lack of certain information in the presentence report, noting that Quiroz lost contact with his father at an early age, had several siblings with criminal records, and lacked parental guidance. Counsel represented: “There is a lot of information that should be attached to the presentence report that will be useful for CDC when they determine placement. So all that information should be in the presentence report. I can prepare the information and—but it’s a statement of mitigation. I really don’t—I am not complaining about the sentence.” Counsel then suggested that the matter should be re-referred to the probation department for a more complete report. The judge replied: “If you want to prepare it, I will be glad just to attach it, make it part of the report, give a copy to the DA so they can see it, make objections, if appropriate. But it sounds like it is better to be prepared by you. We’ll incorporate it into the presentence.” Counsel responded: “That’s fine. I’ll do that.” The court then explained: “The other way around, Mr. Boisseau [defense counsel], what’s concerning me, you also have specifics in mind and the only way you are going to get all your specifics addressed in today’s world is if you do it yourself unless you go down and dictate to the probation what it is you want them to do which may not necessarily always work out real well. So, I don’t know.” The judge then asked a representative of the probation department if the court’s concern was accurate; the probation officer replied that the report already contained the information that Quiroz had provided. The court stated: “So there you have your answer. I would stand firm on my recommendation to you that if you have specifics I have no problem ordering they go with your client to CDC. They should, of course, be in writing. Of course, I would give you adequate time to do that.” Defense counsel agreed to present the information. He then reiterated that he desired the information not to affect the term of Quiroz’s sentence, but the nature of his placement and treatment: “I will put it in a statement that I will request that it be attached to the presentence report because I think that’s critical for Mr. Quiroz’s placement, where he goes in CDC, his evaluation, what kind of programs are available for him, whether he needs counseling in terms of not being housed with his brothers should they be in custody because of other issues. All that stuff should be in there. But we have no qualm with the sentence. It’s never been an issue of sentence.”
As clearly demonstrated by the transcript, the court expressly accepted the offer of Quiroz’s attorney to supplement the probation report, and gave him more than adequate time to do it. Far from thumbing its nose at Quiroz’s family circumstances, the court assisted Quiroz by suggesting the best way of documenting the desired information. In the end—for tactical reasons ostensibly in his client’s best interests—defense counsel did not provide anything further. We therefore strongly disagree with Quiroz’s interpretation of the record, and we disagree as well with the other attempts in his opening brief to disparage the trial court’s sentencing practices.
D. Probation Report
Rule 4.411.5(a)(6) of the California Rules of Court provides that “a probation officer’s presentence investigation report in a felony case must include at least the following: Any relevant facts concerning the defendant’s social history, including those categories enumerated in section 1203.10, organized under appropriate subheadings, including, whenever applicable, ‘Family,’ ‘Education,’ ‘Employment and income,’ ‘Military,’ ‘Medical/psychological,’ ‘Record of substance abuse or lack thereof,’ and any other relevant subheadings.” (Italics added.) Quiroz argues that the probation report, in omitting information about Quiroz’s family background, failed to comply with rule 4.411.5(a). He further contends that the trial court erred in failing to order a new (or supplemental) probation report.
Quiroz’s arguments are unpersuasive. In the first place, the probation report need only provide relevant information regarding the defendant’s social history. Although Quiroz and his attorney had two months to put in writing any information that was not already in the presentence report, they ended up providing none. Apparently, there were no other relevant facts concerning Quiroz’s social history—or at least none that would have been helpful to Quiroz.
We note also that, to the extent the information in the probation report was insufficient, the record indicates that it was (1) the extent of the information provided by the defense; and (2) supplemented by defense counsel at the sentencing hearing. Counsel advised the court that Quiroz suffered from a lack of parental guidance, had not seen his father for some time, had siblings in the criminal justice system, and suffered from a severe medical condition. In addition, there is some indication in the record that the judge might have been aware of Quiroz’s family situation through other presentence reports.
Quiroz contends that his attorney made an appropriate objection to the inadequacy of the probation report and “the court simply dismissed it out of hand.” As demonstrated in our discussion ante, the court did no such thing. The court merely recommended that counsel provide the information to be attached to the existing report, rather than attempting to have the probation department provide the information. The judge gave his reasons and even asked a representative from the probation department if his impression was incorrect. It expressly permitted Quiroz’s attorney to provide any such information he wanted and, subject to objection by the prosecutor, that information would be attached to the presentence report.
Quiroz further contends the probation report lacked information referred to in paragraph (a)(8)(B) of California Rules of Court, rule 4.411, which provides: “If a prison sentence is recommended or is likely to be imposed, [the report must include] a reasoned discussion of aggravating and mitigating factors affecting the sentence length . . ..” Quiroz insists that, without such a discussion, the court lacked the information it needed to determine whether aggravating factors outweighed mitigating factors and whether the upper term was appropriate.
Quiroz’s contention has no merit. By stipulating in the plea agreement to the upper term and consistently reaffirming his agreement to the upper term at the sentencing hearings, Quiroz effectively agreed that aggravating factors sufficiently outweighed mitigating factors for imposition of the upper term. In any event, the probation report noted seven aggravating factors and only one mitigating circumstance, concluded that the aggravating factors clearly outweighed the mitigating circumstance in light of the egregious circumstances of the offenses, and urged the upper term. The probation report was adequate in this regard.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.