People v. Webb CA3

DISCUSSION

I Use Of The Prior Prison Term As An Aggravating Factor Defendant contends the trial court erred in imposing the upper term. According to defendant, it was error to consider his prior prison term as an aggravating factor, since

2 this factor was already taken into account in the Penal Code section 667.5 enhancement. Defendant also contends the trial court erroneously disregarded the mitigating factor of appellant’s guilty plea and voluntary acknowledgement of his wrongdoing. (Cal. Rules of Court,1 rule 4.423(b)(3).) The People disagree, contending defendant forfeited this argument by failing to object during the sentencing hearing. Given our determination the trial court did not abuse its discretion in imposing the upper term, we need not reach the forfeiture argument. A trial court’s decision to impose the upper term is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its discretion only if it “relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (Ibid.) An upper term sentence may be based upon “any aggravating circumstance that the…