People v. Goldberg

California Court of Appeal Nov 18, 1983 No. Crim. 23885Published

Before: Rouse

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Holding. When a trial court revokes probation and imposes a prison sentence, it must consider any findings of fact regarding aggravation and mitigation that were previously made when probation was initially granted, as required by rule 435(b)(1) of the California Rules of Court.

Issues

Whether a trial court errs by failing to consider previous findings of mitigation when imposing an upper term sentence upon revocation of probation.
Does rule 435(b)(1) require consideration of findings previously made even if those findings were not strictly required by law at the time of the initial grant of probation?

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“rule 435(b)(1) of the California Rules of Court requires that such findings be considered by the superior court when sentencing defendant upon revocation of probation.”

“The language of that rule is broad and inclusive. It contemplates consideration of any findings previously made, whether or not such findings were required.”

Opinion

ROUSE, J.

Defendant, Barry Goldberg, appeals from an order revoking his probation and sentencing him to state prison.

On May 1, 1980, defendant pleaded guilty to false imprisonment in violation of section 236 of the Penal Code. Imposition of sentence was sus

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pended and defendant was placed on probation for three years, subject to certain conditions.

On October 9, 1981, defendant was found to have violated probation and was committed to the Department of Corrections for a diagnostic study and recommendation. (Pen. Code, § 1203.03.) On December 17, 1981, he was sentenced to the upper term of three years. (Pen. Code, §§ 237, 18.)

On this appeal, defendant raises the sole contention that the trial court erred in imposing the upper term of imprisonment without complying with the mandate of rule 435(b), California Rules of Court, that the court take into consideration the findings previously made when defendant was placed on probation. We have concluded that this argument is meritorious.

The probation report submitted when defendant was placed on probation cited two circumstances in aggravation and two in mitigation. The aggravating circumstances were that defendant had engaged in a pattern of violent conduct which indicated a serious danger to society (Cal. Rules of Court, rule 421(b)(1)) and that his prior convictions as an adult were numerous and of increasing seriousness (Cal. Rules of Court, rule 421(b)(2)). The circumstances in mitigation were that defendant was suffering from a mental condition that significantly reduced his culpability for the crime (Cal. Rules of Court, rule 423(b)(2)) and that he had voluntarily acknowledged wrongdoing at an early stage of the criminal process (Cal. Rules of Court, rule 423(b)(3)). In explaining its decision to place defendant on probation, the superior court mentioned both mitigating circumstances.

The record also reflects that when defendant was later sentenced to the upper term of three years, following the revocation of his probation, the court made no reference to the mitigating circumstances which had initially influenced the court’s decision to grant probation. However, the court did mention the two aggravating circumstances when explaining its sentencing choice.

People v. Goldberg

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ROUSE, J.

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