P. v. McClure
Filed 4/2/08 P. v. McClure CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE FURMAN MCCLURE, Defendant and Appellant. | C055867 (Super. Ct. No. SF100060A) |
A jury found defendant Lawrence Furman McClure guilty of a variety of crimes arising out of six separate robberies he committed in the span of five days in April 2006. The court sentenced him to 12 years 6 months in prison, which included the upper term for an attempted voluntary manslaughter conviction, a crime that was committed during one of the robberies.
On appeal, defendant contends the trial courts reliance upon [his] probationary status in a drug possession case to impose the upper term constituted an abuse of discretion. The problem with defendants argument is that we do not read the record the same way he does.
At sentencing, the court initially stated the following with respect to the attempted voluntary manslaughter conviction: The reason that I am imposing the upper term on this case is because of [defendants] prior felony record which show[s] crimes of increasing seriousness. . . . [] . . . [] And you can -- He was on probation at the time that these offenses were committed, and so the fact that he was on probation, he had three felony convictions of increasing seriousness, and while he never has gone to prison before this, he was on felony probation at the time that these crimes were committed.
The probation report, which the court read and considered, showed that defendant had a 1993 felony conviction for transporting or selling a controlled substance; a 2000 felony conviction for petty theft with a prior theft-related conviction; a 2003 felony conviction for possessing a controlled substance for which he was placed on three years probation; and a 2005 misdemeanor conviction for possessing drug paraphernalia, which was his 13th misdemeanor conviction, and for which he was placed on three years Proposition 36 probation. It did not show a felony conviction for unlawfully taking or driving a vehicle, although the Peoples pretrial conference statement had listed in defendants Criminal History a 2004 felony conviction for that offense.
After the court stated its initial thoughts on sentencing, the parties and the court discussed the uncertainty with respect to the existence of the prior felony conviction for unlawfully taking or driving a vehicle. The prosecutor said that although it was not in the probation report, that conviction was written down in a letter . . . from the Public Defenders Office which was taken from [defendants] RAP, and she offered to go back to her office and pull that.
The court responded, he was on felony probation for the Prop 36 at the time that these offenses were committed, and thats the reasons that Im imposing the upper term in this case on Count Seven [the attempted voluntary manslaughter count].
A few moments later, however, when sentencing defendant, the court stated, Therefore, for a violation of Section 664/192, attempted voluntary manslaughter as charged in Count Seven of the information, [defendant] is sentenced to state prison in the State of California for the upper term of five years and six months, and I have selected the upper term due to the defendants prior felony record, the fact that he was on probation at the time that these offenses were committed.
From this record, we conclude that the court imposed the upper term because of defendants prior felony record and because he was on probation when the current offenses were committed and that the courts reliance on these factors was not an abuse of discretion.
Selection of the appropriate term is a matter within the broad discretion of the trial court. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) We affirm the trial courts sentencing decision unless it was arbitrary or irrational. (Ibid.) Here, it was neither. Defendant had three prior felony convictions between 1993 and 2003. Defendants prior criminal record is a valid factor to consider in selecting the upper term. Moreover, despite being given a grant of probation in 2003 for possession of a controlled substance and another grant of probation in 2005 for possessing drug paraphernalia, he committed the present, much more serious crimes. Under these circumstances, and despite defendants arguments to the contrary, the trial court did not abuse its discretion in concluding that these two factors were sufficient to impose the upper term.
DISPOSITION
The judgment is affirmed.
ROBIE , J.
We concur:
NICHOLSON , Acting P.J.
BUTZ , J.
Publication Courtesy of California lawyer directory.
Analysis and review provided by Escondido Property line Lawyers.
