Goldberg

Defendant, Barry Goldberg, appeals from an order revoking his probation and sentencing him to state prison.

On May 1, 1980, defendant pleaded guilty to false imprisonment in violation of section 236 of the Penal Code. Imposition of sentence was sus pended and defendant was placed on probation for three years, subject to certain conditions.

On October 9, 1981, defendant was found to have violated probation and was committed to the Department of Corrections for a diagnostic study and recommendation. (Pen. Code, § 1203.03.) On December 17, 1981, he was sentenced to the upper term of three years. (Pen. Code, §§ 237, 18.)

On this appeal, defendant raises the sole contention that the trial court erred in imposing the upper term of imprisonment without complying with the mandate of rule 435(b), California Rules of Court, that the court take into consideration the findings previously made when defendant was placed on probation. We have concluded that this argument is meritorious.

The probation report submitted when defendant was placed on probation cited two circumstances in aggravation and two in mitigation. The aggravating circumstances were that defendant had engaged in a…