Collier
People v. Collier
Opinion
Lead Opinion
Defendant appeals from a judgment sentencing him to state prison after a jury found him guilty of second degree burglary. (Pen. Code, §§ 459, 460.)
*660 The sole issue is whether the trial court based its sentencing determinations on incorrect data when it declared that defendant was ineligible for probation under Penal Code section 1203, subdivision (d). (See In re Huddleston (1969) 71 Cal.2d 1031, 1037 [ 80 Cal.Rptr. 595 , 458 P.2d 507 ].) We have concluded that there was no error.
The relevant portions of section 1203, subdivision (d), read:
Although there is some uncertainty in the record before us, it appears that defendant was convicted in February 1970 of at least one, *661 and possibly two counts of first degree robbery (Pen. Code, § 211), and of attempted kidnapping (Pen. Code, § 207), possession of a sawed-off shotgun (Pen. Code, § 12020), and possibly assault with a deadly weapon (Pen. Code, § 245). The record is certain as to at least three prior convictions.
The sentencing court declared defendant ineligible for probation pursuant to subdivisions (d)(1) and (d)(4). He erred as to subdivision (d)(1), as there was no showing that defendant was armed with a…