Santana

Defendant was found guilty of burglary as alleged in count I and of attempted burglary as alleged in count II. He was sentenced to state prison for the upper term of three years on count I, and for four months on count II to be served concurrently with the sentence on count I. Appellant seeks to have this court remand the case for re-sentencing and to delete imposition of the maximum term for the conviction of burglary.

Facts

At the probation and sentence hearing the trial court had before it a probation report containing under the heading “Prior Record: Sources of Information” the following information: “CII (requested 10-23-80, but not yet received), LASO (requested 10-23-80 but not yet received), and the district attorney records.” Following this were over three pages of police contacts, arrests, parole and probation information. The report showed that the probation officer asked appellant about a number of these entries.

At the outset of the probation and sentence hearing the court said: “The court has read and considered the report of the probation officer, has considered said report in this matter.

The court then imposed the high term for count I, and when…