Statement of Reasons for Higher Term
Category > Statement of Reasons for Higher Term
Failing to state reasons for upper term, and read probation report required resentencing.In imposing the upper term for possession of a machine gun and for possession of a silencer the court committed prejudicial error in failing to set forth its reasons. Moreover, it appeared from the sentencing hearing transcript that the court failed to read the probation report and thus failed to make a statement that it has considered such report as required. This error was also prejudicial and required resentencing.id: 13867
Using facts from other counts to aggravate a sentence is only permissible if the crimes are part of a single criminal transaction.Defendant was convicted of three counts of selling cocaine. The court cited, as a factor in aggravation of count III, the involvement of minors. However, the minors were only involved in counts I and II which took place two months earlier at a different location. Since the counts did not involve a single criminal transaction, the aggravating factor was improper.id: 13872
Multiple victims may not be used as an aggravating factor where defendant sold cocaine to one undercover officer.Defendant was convicted of selling cocaine to an undercover officer. The court erroneously found the crime involved multiple victims on a theory that the drugs were intended to reach many people.id: 13868
Court erred in relying on defendant's parole status in imposing the upper term for the firearm use enhancement because the parole status relates to the defendant and not his gun use.The trial court erred in imposing the five-year upper term on the Penal Code section 12022.5 (firearm use) enhancement because the sole factor cited for imposing the upper term was that defendant was on parole when the crime was committed. The fact that he was on parole when he committed the robbery is a fact relating to the defendant himself and not his gun use and therefore was improper under California Rules of Court, rule 428 (b).id: 13863
Court erred in imposing the upper term on the enhancement where the stated reasons did not relate directly to the use of the firearm.The trial court considered improper factors in sentencing defendant to the upper term on the firearm use enhancement. The increasing seriousness of defendant's criminal activity and the fact that he was on probation at the time of the present injury for a prior criminal assault on the same victim do not relate directly to the conduct, i.e., shooting his girlfriend, which resulted in the enhancement. However, the error was harmless given the existence of one circumstance which could properly have been used to select the upper term for the enhancement and the absence of any mitigating factors.id: 13862
Trial court erred in failing to separately state reasons justifying the upper term on the firearm use enhancement.The trial court erred in failing to state reasons for its selection of the upper term for the firearm use enhancement. While the trial court did state its reasons for its choice of an aggravated term for the robbery count, it did not state its reasons for its enhancement choice as required under Penal Code section 12022.5, subdivision (a). Defense counsel's failure to object did not constitute a waiver of the issue. However, in light of all of the aggravating circumstances the court's error was not prejudicial.id: 13869
Trial judge's persistent failure to state reasons for imposing upper terms required remand and resentencing by another judge.Defendant was convicted of four counts of selling methamphetamine. The trial court erred in failing to state reasons for imposing upper terms of imprisonment. The case was remanded for resentencing by another judge because of the trial judge's persistent failure or inability to perform the fundamental duty of a sentencing court to state reasons for its sentencing choices.id: 13871
When imposing the upper term based on the defendant's perjury at trial the court is required to make on the record findings as to all of the elements of a perjury violation.Defendant was convicted of two sex offenses and the sentencing court cited defendant's perjury as an aggravating factor in imposing the upper term. When imposing a sentence enhancement because of perjury at trial, the sentencing judge is constitutionally required to make on-the-record findings encompassing all the elements of a perjury violation. Those elements are a willful statement, under oath, of any material matter which the witness knows to be false. However, the court's failure to make such findings was not prejudicial since the record provided adequate assurance that there was no violation of the constitutional right to testify <197> i.e., that the court's reliance on perjury as an aggravating factor was properly based on untruthfulness.id: 10829
Defendant’s failure to object at sentencing forfeited the issue of failure to state reasons for imposing the upper term.Defendant argued on appeal that the trial court erred by failing to state reasons for imposing the upper term for the harmful matter conviction. However, defendant forfeited the issue by failing to object at the sentencing hearing.id: 22165
Defense counsel may waive jury on behalf of MDO defendant.In a Mentally Disordered Offender trial pursuant to Penal Code section 2960, defense counsel may waive a jury on behalf of the defendant.id: 15929
A statement of reasons for imposing the upper or lower term is not inadequate because the reasons stated were not ultimate facts.Defendant argued the trial court's statement of reasons for imposing upper terms failed to state ultimate facts in violation of California Rules of Court, rule 420(e). However, a statement of reasons for imposing an upper or lower term is not inadequate merely because it uses the language of the rules without further elaboration.id: 13860
Any error in using struck jury method of jury selection was harmless where defendant was not prohibited from exercising his challenges.Even if forcing defendant to exercise his peremptory challenges against more than 12 prospective jurors at a time violated Penal Code section 1088's requirement of a full panel, any error was harmless where defendant was not prohibited from exercising the full complement of his allotted challenges.id: 13861
Court need not state reasons for denying request for traffic school following conviction of a traffic infraction.After convicting defendant of a traffic infraction, the trial court is not required to state its reasons for denying the defendant's request for traffic school.id: 13864
Court's failure to make findings at the time of sentencing under rule 433(b) cannot be raised for the first time on appeal.Defendant argued the sentencing court violated California Rules of Court, rule 433(b) which requires factual findings as to circumstances which would justify imposition of the upper or lower term if probation is later revoked. However, the failure to make findings pursuant to Rule 433(b) is subject to the waiver rule and cannot be raised for the first time on appeal.id: 13865
Court's failure to state reasons for imposing upper term was harmless where the sentencing memorandum listed several aggravating factors and the court was aware of them.Although the trial court conducted an extensive probation and sentence hearing, read and considered the probation report and sentencing memoranda from the prosecutor and defense counsel, the court failed to expressly state reasons for imposing the upper robbery term. The error was harmless where the prosecutor's sentencing memorandum listed multiple aggravating factors and the court's comments made clear its awareness of these factors. Any one of these factors would have justified the upper term.id: 13866
Trial court was not required to issue a ruling to give defendant an opportunity to object before the issue was waived.Defendant argued that following revocation of his probation, the court erred in failing to state reasons for sentencing him to state prison rather than reinstating probation. The prosecution claims defendant waived the issue on appeal by failing to object at the time of sentencing. Defendant claims the case of <i>People v. Scott</i> (1994) 9 Cal.4th 331 requires the court to announce a tentative ruling in order to give a defendant a meaningful opportunity to object. However, defendant had an opportunity to address the court on the sentencing issue and voiced no objection. A tentative ruling in advance of the sentence was not required.id: 13870
Court did not err in failing to specifically state why it was imposing a prison term for the wobbler.Defendant was convicted of a wobbler which is punishable as a felony or a misdemeanor. He argued the court's decision to impose a prison sentence required a statement of reasons. However, the court's stated reasons for denying probation and imposing the upper term clearly indicated the court had no intention of reducing the offense to a misdemeanor. Moreover, defendant waived the issue since he was aware the count would be treated as a felony and had ample opportunity to object to the imposition of the upper term.id: 13371
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245