Fear Not Law Articles: P. v. Seymour

P. v. Seymour

Filed 12/28/07 P. v. Seymour CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A117363

v. (MendocinoCounty

Super. Ct. No.

FRANCIS LOWELL SEYMOUR, SCUK-CRCR-04-62131-02)

Defendant and Appellant.

______________________________________/

Francis Lowell Seymour appeals from an order revoking his probation. He contends the court erred by failing to explain its sentencing choice. We agree and reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

The precise facts of this care are not relevant to the issue that has been raised. In essence, on September 8, 2004, a Mendocino County deputy sheriff went to appellants house and encountered a man who was just leaving. The man told the deputy that he had purchased an ounce of marijuana from Frank inside. The deputy knocked on the door of the house and spoke with appellant. In the backyard, the deputy found approximately 26 mature marijuana plants.

Based on this incident, a complaint was filed charging appellant with, inter alia, keeping a place to sell a controlled substance. (Health & Saf. Code, 11366.) Appellant pleaded no contest to the charge in February 2005.

Appellant was sentenced in April 2005. The court suspended the imposition of sentence and placed appellant on probation on the condition that he serve time in the county jail.

Subsequently, two petitions were filed alleging appellant had violated his probation. Appellant admitted both. After each admission, the court reinstated appellants probation.

In June 2006, a third petition was filed alleging appellant had violated his probation. Appellant admitted the allegation on June 28, 2006. On August 2, 2006, the court sentenced appellant to the upper term of three years in prison, but suspended the execution of sentence and placed appellant on probation.

In August 2006, a fourth petition to revoke was filed. Appellant admitted the allegation on January 12, 2007. On April 4, 2007, the court lifted the suspension and imposed the three-year term that had been imposed previously.^{^[1]}

II. DISCUSSION

Appellant contends the trial court erred because it failed to articulate any factual basis for its election to impose the aggravated term. We agree.

Appellants sentencing hearing began on July 28, 2006, and was continued to August 2, 2006 in order to address a custody credits issue. The court did not, at any point in either of those hearings, explain why it had decided to impose the upper term. Such an explanation is required. (Pen. Code, 1170, subd. (b), People v. Ibarra (1982) 134 Cal.App.3d 413, 426.) We will remand so the court can explain its sentencing choice. (Ibarra, supra, at pp. 426-427.)^{^[2]}

To the extent appellant contends the trial court violated Cunningham v. California (2007) 127 S.Ct. 856, when it imposed the upper term, appellants argument is premature. We do not know why the trial court imposed the upper term. We cannot at this stage presume the court imposed the upper-term sentence on grounds that were invalid. (People v. Garcia (1987) 195 Cal.App.3d 191, 198.)

III. DISPOSITION

The order is reversed and the case is remanded so the trial court can explain its sentence choice.

_________________________

Jones, P.J.

We concur:

________________________

Simons, J.

________________________

Needham, J.

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^{^[1]} The court also imposed a consecutive eight-month term for an offense in an unrelated case.

^{^[2]} A transcript of the July 28, 2006 sentencing hearing was not originally included in the record on appeal. However, the same day that respondent filed its brief, respondent also filed a motion to augment the record with a transcript of the July 28, 2006 hearing. We granted the motion and the transcript was filed with this court on October 26, 2007. Respondent concedes that if the July 28, 2006 transcript does not demonstrate why the court imposed the upper term, the case should be remanded for resentencing.

Description	Francis Lowell Seymour appeals from an order revoking his probation. He contends the court erred by failing to explain its sentencing choice. Court agree and reverse.
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