People v. McKinzie

Opinion

ASHBY, J.

Upon a submission on the preliminary hearing transcript, appellant was found guilty of attempted burglary.

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The court suspended the pronouncement of judgment and placed appellant on probation for three years.

The sole contention is that in granting probation the court failed to comply with rule 433(b), California Rules of Court, which provides: “(b) If the imposition of sentence is to be suspended during a period of probation after a conviction by trial, the trial judge shall make factual findings as to circumstances which would justify imposition of the upper or lower term if probation is later revoked, based upon evidence admitted at the trial.”

The court did state “that an appropriate sentence to State Prison in this matter would be the upper term of 1-1/2 years.” However, the court did not make any factual findings of the underlying circumstances in aggravation or mitigation.

[1019]

The advisory committee comment to rule 433(b) states, “Pursuant to the last sentence in section

1170(b),W

under subdivision (b) when imposition of sentence is to be suspended, the sentencing judge is not to make any determinations as to the possible length of a prison term upon violation of probation. If there was a trial however, he must make findings as to the circumstances justifying the upper or lower term based on the trial evidence.” (Judicial Council of Cal., Annual Rep. (1978) P- 19.)

Thus the trial court should not have stated what an “appropriate sentence” would be in the event of probation revocation, but should only have made findings, based on the trial evidence, as to aggravating or mitigating circumstances. The court made no such findings.

The purpose of rule 433(b) is to assist a later court, upon revocation of probation, to determine what mitigating or aggravating circumstances existed at the time probation was originally granted. This is because rule 435(b)(1) provides that in imposing judgment after revocation of probation the court must “consider[ ] any findings previously made” and determine the sentence