Berry

This case presents an appeal of appellant’s resentencing which was ordered by this court in case number 5 Crim. 3867, in an opinion filed January 10, 1979.

The case number 3867 appeal stemmed from imposition of the upper base term (three years) following appellant’s guilty plea to a violation of Vehicle Code section 10851 (unlawful taking of a motor vehicle). Prior to sentencing, the trial court had reviewed a probation report which recommended imposition of the upper term, based on two asserted circumstances in aggravation, to wit, “[t]he defendant has been incarcerated in the California Youth Authority” and “[t]he defendant’s prior performance on probation is unsatisfactory.”

At the sentencing hearing, appellant’s trial counsel moved to strike the former circumstance on the ground that it is not contained within the aggravating factors specified in rule 421, California Rules of Court. Counsel also asserted that there was “no evidence or any other information contained in the report that his performance on probation was unsatisfactory .... ” Counsel concluded that no aggravating circumstances existed and that appellant should receive the middle term. The trial court…