Thornton

Appellant was convicted on his guilty plea of burglary and sentenced to prison for the six-year upper base term. In his first appeal (F003037) we held that the sentencing judge had relied on an improper aggravating factor. Because the record showed two valid aggravating and mitigating factors cited by the judge, we concluded that a more favorable result was reasonably probable on remand and, accordingly, remanded for resentencing. At the resentencing hearing, the judge found that the aggravating factors clearly outweighed the mitigating factors and again sentenced appellant to the six-year upper base term. The judge did not state reasons for this sentence choice. Moreover, having reimposed the maximum term, the judge purported to stay one year of the sentence, “in the interest of justice, because I am somewhat persuaded by your attitude ...”

On this, his second appeal, appellant contends that the judge abused his discretion in imposing the upper base term, because as a matter of law the aggravating factors did not outweigh the mitigating ones. Respondent counters that the upper base term was proper but that the stay of one year of that term was unauthorized and must be…