People v. Olken

Opinion

COBEY, J.

We hold that a sentence imposed pursuant to a negotiated disposition which is not supported by an articulation of reasons, while erroneous, is not “unauthorized by law” and, therefore, is not subject to correction after it has become final.

Morton Z. Olken was convicted by plea of grand theft (Pen. Code, § 487, subd. 1) and on November 11, 1979, was sentenced to state prison for the upper three-year term. He did not appeal this judgment but a full year later moved the trial court to reduce his sentence to the middle two-year term because it had failed to articulate the basis for its selection of the upper term. (Pen. Code, § 1170, subd. (b); Cal. Rules of

[1066]

Court, rule 439(b).) This motion was denied and he appeals, contending: “The [trial] court improperly imposed the upper term.”

Appellant is correct in his observation that the trial court erred in failing to state a reason or reasons to support its selection of imprisonment for the upper three-year term. (E.g.,

People

v.

Hernandez

(1979) 100 Cal.App.3d 637, 643 [160 Cal.Rptr. 607]..) Appellant’s plea of guilty was pursuant to a negotiated disposition which, as regrettably is so frequently the case, was couched in terms suggesting that appellant

would receive

the maximum term rather than that he

was vulnerable

to such a sentence. When judgment was pronounced, the court simply imposed the three-year term without articulating any reason. for its denial of probation and choice of imprisonment, nor for its selection of the upper term.

1

The fact that the upper term was a possibility contemplated by a negotiated disposition did not relieve the court from its duty to articulate a reason or reasons for its ultimate selection. “The state, in entering a plea bargain, generally contemplates a certain ultimate result; integral to its bargain is the defendant’s