People v. Kerr CA3

Filed 7/21/16 P. v. Kerr CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C079385

Plaintiff and Respondent, (Super. Ct. No. CM041526)

v.

MICHAEL DEAN KERR,

Defendant and Appellant.

Following his no contest plea to writing checks with insufficient funds (Pen. Code, § 476a, subd. (a)),1 the trial court sentenced defendant Michael Dean Kerr to a split three- year sentence, consisting of one year in county jail and two years of mandatory supervision. On appeal, defendant contends the trial court abused its discretion by selecting the upper term of three years. We disagree and affirm the judgment.

1 Undesignated statutory references are to the Penal Code.

1

DISCUSSION2 Under California’s determinate sentencing law, three terms of imprisonment are specified by statute for most offenses.3 (People v. Sandoval (2007) 41 Cal.4th 825, 836.) The choice of the appropriate term rests within the sound discretion of the court. (§ 1170, subd. (b).) In exercising his or her discretion, “the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing.” (Cal. Rules of Court, rule 4.420(b).)4 A single valid aggravating factor justifies the upper term. (People v. Black (2007) 41 Cal.4th 799, 815.) Abuse of discretion only occurs when the trial court’s determination is arbitrary or capricious or exceeds the bounds of reason. (People v. Welch (1993) 5 Cal.4th 228, 234.) As an initial matter, we agree with the People’s contention defendant has forfeited his right to challenge the trial court’s sentencing decision. “A party in a criminal case may not, on appeal, raise ‘claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ if the party did not object to the sentence at trial. [Citation.] The rule applies to ‘cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it