People v. Turner

• Decision Date: 12 December 1978
• Docket Number: Cr. 3795
• Citation: 150 Cal.Rptr. 807,87 Cal.App.3d 244
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel TURNER, Defendant and Appellant.

Page 807

150 Cal.Rptr. 807

87 Cal.App.3d 244

The PEOPLE, Plaintiff and Respondent, v. Daniel TURNER, Defendant and Appellant.

Cr. 3795.

Court of Appeal, Fifth District, California.

Dec. 12, 1978.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Gary S. Goodpaster, Chief Asst. State Public Defender, Mark L. Christiansen and Gayle Guynup, Deputy State Public Defenders, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi, Anthony L. Dicce and John A. Gordnier, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Appellant was convicted upon his guilty plea of unlawful sexual intercourse (Pen. Code, § 261, subd. 5). He also admitted a probation violation in another case. Appellant was sentenced to state prison for the upper term of three years in the instant case. On the probation violation, he was sentenced to prison for the term prescribed by law, the sentence to run concurrently with that in the instant case.

Appellant's sole contention is that the trial court's failure to state facts and reasons for the imposition of the upper term necessitates resentencing. Respondent contends that where the trial court states that it has read the probation report and where the report recommends the upper term, based on specific articulated factors listed in rule 421, California Rules of Court, no error occurs.

Penal Code section 1170, subdivision (b), provides in pertinent part:

"(b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. . . . In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer's report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution or the defendant, and any further evidence introduced at the sentencing hearing. The court shall set forth on the record the facts and reasons for imposing the upper or lower term."

Penal Code section 1170, subdivision (a), provides in pertinent part: "In sentencing the convicted person, the court Shall apply the sentencing rules of the Judicial Council." (Emphasis added.) Penal Code section 1170.3 provides:

"The Judicial Council shall seek to promote uniformity in sentencing under Section 1170, by the adoption of rules providing criteria for the consideration of the trial judge at the time of sentencing regarding the court's decision to:

"(a) Grant or deny probation.

"(b) Impose the lower or upper prison term.

"(c) Impose concurrent or consecutive sentences.

"(d) Consider an additional sentence for prior prison terms.

"(e) Impose an additional sentence for being armed with a deadly weapon, using a firearm, an excessive taking or damage, or the infliction of great bodily injury."

California Rules of Court, rule 439(c) states:

"(c) The facts and reasons for selecting the upper or lower term shall be stated orally on the record, and shall include a concise statement of the ultimate facts which the court deemed to constitute circumstances in aggravation or...