Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF08117
ROBIE , J.
As defendant Jeremy Cole York was making a firecracker in his shed, it exploded and blew off some of his fingers. He pled guilty to manufacturing an incendiary device and, after twice violating his probation, was sentenced to prison for the upper term of three years. He contends on appeal the trial court abused its discretion in imposing the upper term. We reject his contention and affirm the judgment.
DISCUSSION
The trial court sentenced defendant to the upper term of three years based on the following factors: (1) his prior convictions as an adult are numerous and increasing in seriousness; (2) he was on probation when he committed the crime; and (3) his prior performance on probation has been unsatisfactory. (Cal. Rules of Court, rule 4.421(b)(2), (4), (5).) In mitigation, the court noted that defendant voluntarily acknowledged wrongdoing at an early stage in the criminal proceedings. (Cal. Rules of Court, rule 4.423(b)(3).) Having “weighed all aspects,” the court declared its belief that defendant’s “recidivism criminality warrants imposition of the upper term of three years.”
The trial court enjoys broad discretion in its sentencing decisions, which we review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) And, as defendant concedes, an upper term sentence may be imposed based upon a single aggravating factor. (See People v. Osband (1996) 13 Cal.4th 622, 728.)
Nevertheless, defendant claims a trial court “must typically impose the middle term” unless there exist factors allowing it to depart upward. He is mistaken. Before defendant’s sentencing in this action, the Legislature amended the determinate sentencing law to give the sentencing court the discretion to determine which of the three terms of imprisonment to impose, without making the middle term the presumptively correct term. (See Pen. Code, § 1170, subd. (b) [“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court”].)
However, defendant’s principal complaint is that the trial court “failed to properly assess or even to expressly consider any of the factors in mitigation set forth by probation in its initial report.” He is mistaken. Although a trial court is not obligated to explain why it rejected or minimized any mitigating factors, (People v. Johnson (1988) 205 Cal.App.3d 755, 758), defendant’s contention that there were mitigating factors not “expressly consider[ed]” by the court is not supported by the record. Each of the three probation reports in the record on appeal -- the August 18, 2008 probation report, and the supplemental reports dated November 3, 2008, and June 22, 2009 -- identifies a single circumstance in mitigation: that the defendant voluntarily acknowledged wrongdoing at an early stage of the criminal proceeding. (Cal. Rules of Court, rule 4.423 (b)(3).) This circumstance in mitigation was expressly described by the court at sentencing and weighed in its decision to impose the upper term.
There was no error.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., BUTZ, J.