People v. Taylor

Opinion

THE COURT.

*

This is an appeal from a judgment sentencing defendant Oliver Taylor to state prison after a jury found him guilty of possessing heroin for sale (Health & Saf. Code, § 11351).

[833]

Defendant’s contention that the trial court erred in basing its sentence in part on facts relating to him, as opposed to the crime, is rejected in light of

People

v.

Cheatham

(1979) 23 Cal.3d 829, [153 Cal.Rptr. 585, 591 P.2d 1237].

The argument that the court erred in aggravating defendant’s sentence in part on the basis of his arrest record is likewise rejected. Penal Code section 1170, subdivision (b), states that in determining whether aggravating or mitigating circumstances exist, the court “may” consider the record in the case and the probation officer’s report. These materials traditionally contain arrest data; thus, the statute contemplates such usage. We emphasize, however, that arrests not factually supported should be excluded from such materials (see

People

v.

Chi Ko Wong

(1976) 18 Cal.3d 698, 719 [135 Cal.Rptr. 392, 557 P.2d 976]; § 12.5(a)(1), Standards Jud. Admin.).

Additionally, California Rules of Court, rule 408, states that criteria “reasonably related” to the decision being made may also be considered.

1

Arrest data is reasonably related to various criteria which the rules mandate the court to consider (rule 409), and it can be considered so long as it is not presented in a misleading manner (see

People

v.

Phillips