McKinzie

Upon a submission on the preliminary hearing transcript, appellant was found guilty of attempted burglary. The court suspended the pronouncement of judgment and placed appellant on probation for three years.

The sole contention is that in granting probation the court failed to comply with rule 433(b), California Rules of Court, which provides: “(b) If the imposition of sentence is to be suspended during a period of probation after a conviction by trial, the trial judge shall make factual findings as to circumstances which would justify imposition of the upper or lower term if probation is later revoked, based upon evidence admitted at the trial.”

The court did state “that an appropriate sentence to State Prison in this matter would be the upper term of 1-1/2 years.” However, the court did not make any factual findings of the underlying circumstances in aggravation or mitigation.

The advisory committee comment to rule 433(b) states, “Pursuant to the last sentence in section 1170(b),W under subdivision (b) when imposition of sentence is to be suspended, the sentencing judge is not to make any determinations as to the possible length of a prison term upon violation of…