People v. Jackson

A jury convicted Cedric Jackson of arson (Pen. Code, §451, subd. (b)) and he was sentenced to prison. He appeals claiming sentencing error.

The sentencing hearing was set for May 28, 1981, 27 days after the verdict was pronounced. On that date, defense counsel asked for a continuance, explaining Jackson had been examined by a psychiatrist and he was awaiting the doctor’s report so he could prepare a statement in mitigation. The court noted the probation department and the People recommended Jackson receive the upper term, which was two years longer than the mid term. It granted the continuance for one week, then asked Jackson if he wanted the matter continued despite the fact he had a statutory right to be sentenced then. (See Pen. Code, § 1191.) Jackson replied he preferred to be sentenced immediately. The following dialogue then occurred:

Jackson now argues the court erroneously concluded it did not have discretion to continue sentencing beyond the statutorily mandated 28-day period over defendant’s objection. The court’s question to Jackson “You will not allow us to continue the matter?” shows the court felt it did not have the power to grant the continuance under…