Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF100060A
ROBIE, J.
A jury found defendant Lawrence Furman McClure guilty of a variety of crimes arising out of six separate robberies he committed in the span of five days in April 2006. The court sentenced him to 12 years 6 months in prison, which included the upper term for an attempted voluntary manslaughter conviction, a crime that was committed during one of the robberies.
On appeal, defendant contends “the trial court’s reliance upon [his] probationary status in a drug possession case to impose the upper term constituted an abuse of discretion.” The problem with defendant’s argument is that we do not read the record the same way he does.
At sentencing, the court initially stated the following with respect to the attempted voluntary manslaughter conviction: “The reason that I am imposing the upper term on this case is because of [defendant’s] prior felony record which show[s] crimes of increasing seriousness. . . . [¶] . . . [¶] And you can -- He was on probation at the time that these offenses were committed, and so the fact that he was on probation, he had three felony convictions of increasing seriousness, and while he never has gone to prison before this, he was on felony probation at the time that these crimes were committed.”
The probation report, which the court “read and considered,” showed that defendant had a 1993 felony conviction for transporting or selling a controlled substance; a 2000 felony conviction for petty theft with a prior theft-related conviction; a 2003 felony conviction for possessing a controlled substance for which he was placed on three years’ probation; and a 2005 misdemeanor conviction for possessing drug paraphernalia, which was his 13th misdemeanor conviction, and for which he was placed on three years’ Proposition 36 probation. It did not show a felony conviction for unlawfully taking or driving a vehicle, although the People’s pretrial conference statement had listed in defendant’s “Criminal History” a 2004 felony conviction for that offense.
After the court stated its initial thoughts on sentencing, the parties and the court discussed the uncertainty with respect to the existence of the prior felony conviction for unlawfully taking or driving a vehicle. The prosecutor said that although it was not in the probation report, that conviction was “written down in a letter . . . from the Public Defender’s Office which was taken from [defendant’s] RAP,” and she offered to go back to her office and “pull that.”
The court responded, “he was on felony probation for the Prop 36 at the time that these offenses were committed, and that’s the reasons that I’m imposing the upper term in this case on Count Seven [the attempted voluntary manslaughter count].”
A few moments later, however, when sentencing defendant, the court stated, “Therefore, for a violation of Section 664/192, attempted voluntary manslaughter as charged in Count Seven of the information, [defendant] is sentenced to state prison in the State of California for the upper term of five years and six months, and I have selected the upper term due to the defendant’s prior felony record, the fact that he was on probation at the time that these offenses were committed.”
From this record, we conclude that the court imposed the upper term because of defendant’s “prior felony record” and because he was on probation when the current offenses were committed and that the court’s reliance on these factors was not an abuse of discretion.
Selection of the appropriate term is a matter within the broad discretion of the trial court. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) We affirm the trial court’s sentencing decision unless it was arbitrary or irrational. (Ibid.) Here, it was neither. Defendant had three prior felony convictions between 1993 and 2003. Defendant’s prior criminal record is a valid factor to consider in selecting the upper term. Moreover, despite being given a grant of probation in 2003 for possession of a controlled substance and another grant of probation in 2005 for possessing drug paraphernalia, he committed the present, much more serious crimes. Under these circumstances, and despite defendant’s arguments to the contrary, the trial court did not abuse its discretion in concluding that these two factors were sufficient to impose the upper term.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., BUTZ, J.