People v. Colley

Opinion

HANSON (Thaxton), J.

Ronald Walker Colley was sentenced to state prison after the probation previously granted him had been revoked. He appeals contending, in essence, that the trial court erred by fixing his sentence at the upper four-year term.

We set forth the procedural history of the case since it concededly played a role in the sentencing court’s decision. Appellant was originally convicted by plea of first degree burglary (Pen. Code, §§ 459, 460) on December 6, 1977. Proceedings were suspended and probation was granted upon certain terms and conditions including, inter alia, the service of one year in the county jail.

On January 5, 1978, he was found in violation of probation and sentenced to state prison for the middle three-year term. At that time, however, the court invoked the provisions of Penal Code section 1170,

[872]

subdivision (d), and thereafter recalled this sentence, notwithstanding a report from the Department of Corrections that appellant was a potential recidivist. Once again proceedings were suspended and probation was granted.

The Department of Corrections’ prophetic report proved to be correct and appellant was subsequently convicted of petty theft resulting in the instant revocation proceedings. At the time it reimposed sentence the trial court said:

“Well, I think he’s been asking for the high base term. The court has given him every conceivable break. [I] sentence[d] him to state prison on the mid term under 1170(d) to receive a diagnostic study, the Department of Corrections came back and said reci[di]vism possibilities were great in this case. The court decided to give him the break, probably listening to the persuasive powers of counsel and going against the court’s better judgment recalled the sentence. Now I think he is entitled to the full measure of the law.

“Probation is ordered revoked. The defendant is ordered sentenced to state prison. The court will fix as the base term the upper term for the reasons stated that he has rejected the leniency of the court, he has an extensive criminal background and record. The court’s tried every possible rehabilitative tool available to it and they all have failed. Perhaps long term custody will succeed where leniency and efforts of the court at rehabilitation have failed. The defendant is remanded to the custody of the sheriff to serve his sentence. Good luck to you.”