Myers

Defendant was convicted by a jury of committing a battery upon a nonprisoner while defendant was confined in state prison. (Pen. Code, § 4501.5.) He was sentenced to the aggravated term of four years in state prison. Defendant has appealed from the conviction and sentence.

Issues

Defendant’s various contentions raise the following four issues on appeal:

Only contention (D) has merit and is appropriate for discussion in a published opinion. Accordingly contentions (A) through (C) and the facts and arguments pertaining to those contentions are covered in an appendix which we have certified for nonpublication.

Facts re Sentencing

During the sentencing proceedings, apparently in the course of determining the base term, the court indicated it felt the aggravating circumstances outweighed the mitigating circumstances. Then it asked the district attorney if he wished to make any comments. The district attorney did offer certain remarks including “. . . not only do the aggravating circumstances out weigh the mitigating circumstances, but that the probation recommendation ought to be followed and the aggravating circumstances ought to control. He ought to be sent to the State…