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People v. Jimenez1/18/2005
appellant was driving were elements of the offense and could not be considered as factors in aggravation.
Thus, to the extent that it can be determined what factors were relied upon by the trial court in imposing the upper term, only one, the driving record, lay outside Blakely's shadow. Still, the majority concludes that "Under California law, a single factor in aggravation is sufficient to support the upper term." While unquestionably true, this begs the question. By its own statement, the court did not consider just the single factor.
I believe that it is the better practice to return the matter to the trial court for reconsideration of sentence in light of this opinion. "We are persuaded by the language of rule 439[ ], as amended, and by the Advisory Committee comment that the statutory scheme of section 1170, subdivision (b), as implemented by rule 439, leaves to the lower court a choice to be made in the exercise of its discretion as to whether, even after weighing the aggravating circumstances against the mitigating circumstances and determining the aggravating circumstances preponderate, it will impose the upper or middle term as the base term. The statute does not mandate a selection by the court of either of those terms under any particular circumstances, but mandates only selection of the middle term in the absence of aggravating or mitigating circumstances." (People v. Myers (1983) 148 Cal.App.3d 699, 704.)
"' statutory preference for imposition of the middle term, when coupled with the requirement that aggravating circumstances must outweigh mitigating circumstances before imposition of the aggravated term is proper, creates a presumption.' [Citation.] Thus, the reviewing court may not simply ask whether the imposed sentence would be 'wholly unsupported or arbitrary in the absence of error' but must also reverse where it cannot determine whether the improper factor was determinative for the sentencing court." (People v. Avalos (1984) 37 Cal.3d 216, 233.) The trial court is in a unique position to gauge the appropriate sentence. Appellate courts should be reluctant to speculate at the outcome of a sentencing rehearing, the better practice being to give deference to the trial court.
NOT TO BE PUBLISHED.
PERREN, J.
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