People v. Swanson

[573]

Opinion

THE COURT.

*

Appellant was convicted on his guilty plea of attempted grand theft (Pen. Code, §§ 664, 487). He was sentenced to prison for the 18-month upper base term. He now contends that “in imposing the upper term the sentencing court was not guided by the appropriate sentencing rule, but rather by its own determination that appellant’s culpability for the attempted crime merited a certain punishment.”

At the sentencing hearing, appellant’s trial counsel argued for probation and the prosecutor argued for the upper base term. This exchange followed:

“It’s the order of the Court that probation be and the same is hereby denied, and the Defendant committed to the Department of Corrections. And I fix the term of the Department of Corrections—how old is he, 18?

“Mr. Trimble [Defense Counsel]: 18. Right. We would ask for the mitigated term, your Honor, since it’s a first—

“The Court: I’m going to fix it at the middle term of—this is one-half of 16, two and three.

“Mr. Trimble: One year.

“The Court: I’m going to fix this, because this is one-half, I’m going to aggravate this to three years, one-half, which is going to be 18, one-half is 18 months.

“The Court aggravates because the Defendant has served a prior commitment to the California Youth Authority, he was on parole at the time he committed this crime, his prior performance on parole has not been satisfactory. And therefore I aggravate it to the one-half of the three-year period, or 18 months.

“The Court denies probation because of the Defendant’s past record, his prior commitments to the Youth Authority, and that he would not be a fit and proper candidate for probation.”

In essence, appellant argues the judge initially felt the aggravating and mitigating factors were in equipoise, but then decided to impose the upper base term when he later realized that the middle base term would amount to only one year in custody. Without directly responding to appellant’s contention, respon