People v. Harlan CA3

DISCUSSION

I. Imposition of the Upper Term

Defendant argues the trial court abused its discretion by imposing the upper-term sentence. He argues defendant’s criminal record was mostly minor offenses and thus insignificant compared to substantial mitigating factors, namely, defendant’s mental disorders and their connection to his relatively minor crime. And while defendant acknowledges his consistently poor performances on probation, parole, and PRCS, he argues this should be given little weight, as he did not seek probation or a split sentence here. Under these circumstances, defendant contends the court unreasonably discounted the mitigating factors and gave too much weight to aggravating factors. We cannot agree. Pursuant to section 1170, subdivision (b), “[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” Selection of the upper term is justified only when aggravating circumstances outweigh mitigating circumstances. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) We review a trial court’s election of the lower, middle, or upper term…