Gunn

Kenneth Dwayne Gunn appeals the judgment entered following a jury trial in which he was convicted of two counts of robbery. (Pen. Code, § 211.) Proceedings were suspended and probation granted for a period of four years on certain terms and conditions. It is contended: “The trial court erred by failing to make factual findings justifying the imposition of the aggravated or mitigated term.”

The trial court, in suspending proceedings and granting probation, did not make findings as to the circumstances justifying the upper or lower term based upon the trial evidence. Both parties direct our attention to People v. McKinzie (1982) 134 Cal.App.3d 1016, 1019 [ 184 Cal.Rptr. 884 ], as dispositive of the question raised herein.

California Rules of Court (herein rule) 433(b) provides, “If the imposition of sentence is to be suspended during a period of probation after a conviction by trial, the trial judge shall make factual findings as to circumstances which would justify imposition of the upper or lower term if probation is later revoked, based upon evidence admitted at the trial.”

The failure of the trial court to make factual findings under rule 433(b) was error. As was…