Opinion
NOT TO BE PUBLISHED
Superior Ct. No. CM024986
MORRISON, J.
As part of a bargain, defendant pleaded no contest to one of five charged counts of second degree burglary. (Pen. Code, § 459.) The trial court imposed the upper term sentence of three years in state prison, then suspended execution of the sentence and sent defendant to the California Rehabilitation Center (CRC) for treatment of narcotics addiction. On appeal, defendant contends that the trial court abused its discretion in imposing the upper term and the case must be remanded for compliance with Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856].
The only sentencing reason given by the trial court was that defendant was going to CRC. The Attorney General does not defend this as a valid aggravating fact, but argues defendant forfeited his claim of error. We agree that the stated reason is not a valid aggravating factor and disagree that defendant forfeited his claim. We do not find the error harmless because it is “reasonably probable” that defendant would obtain a better sentence on remand. We remand for a new sentencing hearing.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged (No. SCR44942) with the misdemeanor of being under the influence of drugs on or about February 14, 2004. (Health & Saf. Code, § 11550, subd. (a).) On December 27, 2004, defendant pleaded guilty and entry of judgment was deferred pending his completion of a drug diversion program. (See Pen. Code, § 1000 et seq.)
While on drug diversion, defendant falsely portrayed himself as a person authorized to collect donations for the Butte County Mounted Sheriff’s Posse, and induced a furniture company to give him money on several occasions.
The district attorney filed a felony complaint (No. CM024986) charging five counts of second degree burglary, specifying the dates of each incident.
At the felony arraignment, the trial court terminated diversion on the misdemeanor, and trailed sentencing on the misdemeanor pending resolution of the felony.
When the preliminary hearing was set to begin, defendant pleaded no contest to count 1 (second-degree burglary committed on or about March 20, 2005), in exchange for a dismissal of counts 2 through 5, and defendant agreed that the facts of those counts could be used at sentencing. (See People v. Harvey (1979) 25 Cal.3d 754.) Defendant signed a plea form stating that he understood that he was ineligible for probation unless the sentencing judge found this to be an unusual case, and that he could be sentenced to a maximum of three years in state prison. The misdemeanor case was again trailed.
On December 5, 2006, the date of sentencing, the prosecutor stated that there was a new misdemeanor case (No. SCR57738) but that it would be dismissed if the court sent defendant to state prison. The court trailed the matter to the afternoon to “consider the appropriateness of the state prison recommendation.”
The probation report recommended denying probation and recommended imposing the upper term of three years.
That afternoon the following took place:
“THE COURT: Court has read and considered the report of the Probation Department in this matter and is prepared to follow the recommendation that —
“[DEFENSE ATTORNEY]: Judge, before we go there, and I don’t mean to interrupt you before you cast something in concrete —
“THE COURT: I’m just telling you my intended decision.
“[DEFENSE ATTORNEY]: Okay.”
THE COURT: Give you a chance to respond.
“[DEFENSE ATTORNEY]: That’s fine. I’m sorry, go ahead.
“THE COURT: That wasn’t the sentence that was the indicated. And I would be inquiring as to whether you care to be heard.” (Italics added.)
Thus, before being interrupted, the trial court indicated tentative approval of “the recommendation that” something in the report be done, but later stated “That wasn’t the sentence that was the indicated.” This passage suggests that the something the trial court did tentatively plan to do was to follow the recommendation to deny probation, and that the trial court, at least tentatively, was not inclined to follow “the indicated,” meaning “the indicated” upper term state prison sentence.
Defense counsel asked that the matter be sent to “Drug Court,” which the prosecutor opposed. The court then passed the matter so the parties could “discuss this matter in chambers,” which took place off the record.
When the court recalled the case, it stated that it was “prepared” to follow the recommendation as to probation:
“Court has read and considered the probation report in this matter and is prepared to follow the recommendation that probation be denied. The defendant is eligible for probation only in an unusual case. Court does not feel such a case is presented at this time. Even if it were deemed an unusual case, his record makes him not a suitable candidate for probation any longer. He’s had numerous offenses stretching back over 30 years.
“Counsel care to be heard?” (Italics added.)
The trial court did not state, tentatively or otherwise, that it agreed with the probation officer’s recommendation regarding the length of sentence.
Defense counsel then argued for probation, and during colloquy with counsel the trial court asked if defendant wanted “to go to CRC[.]” The prosecutor argued for an upper term prison sentence because of defendant’s prior felony convictions, his failure to complete drug diversion, and because of the nature of the current offenses, in which he repeatedly victimized the same store. The defense argued for the midterm, if probation was to be denied.
It appears from the transcript that defendant had first told his attorney that he did not want to go to CRC, but after the district attorney’s argument for the upper term, he changed his mind. The following then took place:
“THE COURT: . . . Stipulate to addiction?
“[PROSECUTOR]: First we have to go through sentencing.
“THE COURT: Pardon me?
“[PROSECUTOR]: First we have to go through sentencing.
“THE COURT: If it’s CRC the Court’s going to impose the upper term and suspend and impose CRC.
“Court has read and considered the probation report in this matter. The defendant is not eligible for probation except in an unusual case. No such case is presented here. Even if it were, defendant is not a suitable candidate for probation because of his numerous prior offenses and convictions.” (Italics added.)
After defense counsel waived time for sentencing, waived formal arraignment, and stated there was no legal cause precluding judgment, the trial court continued:
“It’s the judgment of this Court that the defendant be sentenced to the upper term of three years in this matter, violation of 459 of the Penal Code as a felony.”
The trailing misdemeanor resulted in a one-year concurrent sentence, then the trial court suspended execution of the imposed prison sentence, and ordered him into CRC. (Welf. & Inst. Code, § 3051.) As expected, in light of the sentence, the district attorney dismissed the new misdemeanor.
Defendant filed a timely notice of appeal, and we granted his application to construe it as based solely on grounds occurring after the plea.
DISCUSSION
The Attorney General does not argue that the CRC commitment is a valid reason for imposing the upper term and we agree with defendant that it is not. “Circumstances in aggravation include factors relating to the crime and factors relating to the defendant” as listed by the rules of court or in statutory provisions. (Cal. Rules of Court, rule 4.421.) “The essence of ‘aggravation’ relates to the effect of a particular fact in making the offense distinctively worse than the ordinary.” (People v. Moreno (1982) 128 Cal.App.3d 103, 110, partly quoted with approval on this point in People v. Black (2007) 41 Cal.4th 799, 817 (Black II).) The fact that a defendant should be sent to CRC for treatment of his narcotics addition does not make the offense or the offender “distinctively worse than the ordinary.”
The Attorney General asserts that defendant’s failure to object to the trial court’s reason at sentencing forfeits the contention of error, relying on this passage:
“We conclude that the waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).)
However, the California Supreme Court later explained that the Scott rule applies where and only where the court gives an opportunity to object to the statement of reasons, such as by giving a tentative ruling before argument or inviting argument after reasons are stated. (People v. Gonzalez (2003) 31 Cal.4th 745, 752 .) Here, although the record is not a model of clarity, as we read the transcript the trial court’s tentative decision was to deny probation but give something other than “the indicated” upper term as suggested by the probation officer. The trial court never signaled any other intention until it pronounced the upper term sentence, at which time the only factor it mentioned was CRC. On these procedural facts defendant did not forfeit his claim of sentencing error.
At the time of sentencing, Penal Code section 1170, subdivision (b), required a trial court to state “on the record the facts and reasons for imposing the upper or lower term.” (Stats. 2004, ch. 747, § 1.) This is not a new or obscure requirement; it was a basic feature of the original version of the Determinate Sentencing Law (DSL). (See, e.g., People v. Turner (1978) 87 Cal.App.3d 244, 246-247.) Further, it has long been the rule that a trial court may not incorporate reasons in the probation report or other document, it must state its reason on the record. (Id. at p. 247; People v. Pierce (1995) 40 Cal.App.4th 1317, 1320.) The only reason stated on the record is the CRC commitment, which is not a valid reason.
It is true that the trial court could have found several valid reasons in aggravation. The probation report states:
“In mitigation, this crime is not viewed as being more egregious than other crimes of this nature. In aggravation, the defendant’s prior performance on probation was unsatisfactory. The crime involved planning and sophistication. He has a record of committing other theft-related offenses. He has been granted probation nine times in the past yet continues to commit crimes. The instant offense constitutes the defendant’s fourth felony conviction.”
The probation report shows that defendant, born in 1951, has a 1969 felony burglary conviction, a 1982 felony drug conviction, and a 1990 felony burglary conviction, as well as several misdemeanor convictions, mostly drug or petty theft cases. He has been abusing drugs for most of his life. The prior convictions would support the upper term, and obviate the Sixth Amendment claim defendant also raises. (See Black II, supra, 41 Cal.4th at pp. 816-820.)
But despite defendant’s criminal record, this was not a case where the upper term was foreordained. The probation report found that this was not an “egregious” case. The theory of burglary was entering the store with intent to commit theft by false representations of charitable purpose. (See 2 Witkin and Epstein, California Crim. Law (3d ed. 2000) Crimes Against Property, § 45-48, pp. 72-79.) Victim restitution was sought in the amount of $1,725, a relatively small loss. The nature of the crimes and the loss sustained supports the conclusion that these crimes were mitigated second degree burglaries. Further, defendant’s last felony was in 1990, after which his criminality subsided to the petty level typical of drug addicts.
While the case for a sentence less than the upper term was not strong, it is the trial court that is supposed to weigh aggravating and mitigating factors:
“[I]t is inappropriate to uphold defendant’s sentence simply because we could theoretically manipulate the aggravating factors in the probation report so as to uphold [the sentence imposed]. Doing so would make a travesty of proper sentencing procedure. Under the rubric of harmless error, we would, in effect, be instituting a two-step sentencing procedure for this case: the trial court chooses the length of defendant’s sentence, and we provide the factual justification. Such an underlying procedural reality, however, is clearly at odds with our admonition to trial courts not to reason backward to justify a particular, arbitrarily chosen length of sentence.” (People v. Fernandez (1990) 226 Cal.App.3d 669, 684.)
Thus, while we could have upheld an upper term sentence on this record, because the trial court was initially inclined not to impose the upper term, and the only reason on the record explaining the change of mind was the invalid reason of a CRC commitment, we cannot say “It is not reasonably probable that a more favorable sentence would have been imposed in the absence of error.” (People v. Davis (1995) 10 Cal.4th 463, 552.)
On remand, the trial court will have to state reasons “‘for imposing the term selected,’” as required by the California Supreme Court’s retroactive judicial reformation of DSL. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
DISPOSITION
The judgment is affirmed and the cause is remanded for a new sentencing hearing.
We concur: SIMS, Acting P.J., DAVIS, J.