Cooper

This appeal involves the single issue of whether a trial court, when resentencing a defendant following a remand by the appellate court, must obtain a current probation report before imposing sentence.

The pertinent facts are that on July 17, 1980, defendant Abie Cooper was charged by information with assault with a deadly weapon, in violation of section 245, subdivision (a), of the Penal Code. He was tried by a jury, which found him guilty as charged, and he was sentenced to serve the upper term of four years in state prison.

Defendant appealed from the sentence imposing the aggravated term. The appellate court concluded that the sentencing court had erroneously based its sentence choice upon two aggravating factors (the threat of great bodily harm and the use of a weapon) which constituted elements of the charged offense, assault with a deadly weapon. Although the trial court had properly relied upon two other aggravating factors (the unprovoked nature of the attack and the seriousness of the crime), the appellate court held that a remand for resentencing proceedings was necessary in order that the trial court could weigh these two aggravating factors against the two…