Filed 7/21/16 P. v. Kerr 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Butte)
                                                            ----



THE PEOPLE,                                                                                  C079385

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM041526)

         v.

MICHAEL DEAN KERR,

                   Defendant and Appellant.




         Following his no contest plea to writing checks with insufficient funds (Pen. Code,
§ 476a, subd. (a)),1 the trial court sentenced defendant Michael Dean Kerr to a split three-
year sentence, consisting of one year in county jail and two years of mandatory
supervision. On appeal, defendant contends the trial court abused its discretion by
selecting the upper term of three years. We disagree and affirm the judgment.



1        Undesignated statutory references are to the Penal Code.

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                                       DISCUSSION2
       Under California’s determinate sentencing law, three terms of imprisonment are
specified by statute for most offenses.3 (People v. Sandoval (2007) 41 Cal.4th 825, 836.)
The choice of the appropriate term rests within the sound discretion of the court. (§ 1170,
subd. (b).) In exercising his or her discretion, “the sentencing judge may consider
circumstances in aggravation or mitigation, and any other factor reasonably related to the
sentencing decision. The relevant circumstances may be obtained from the case record,
the probation officer’s report, other reports and statements properly received, statements
in aggravation or mitigation, and any evidence introduced at the sentencing hearing.”
(Cal. Rules of Court, rule 4.420(b).)4 A single valid aggravating factor justifies the upper
term. (People v. Black (2007) 41 Cal.4th 799, 815.) Abuse of discretion only occurs
when the trial court’s determination is arbitrary or capricious or exceeds the bounds of
reason. (People v. Welch (1993) 5 Cal.4th 228, 234.)
       As an initial matter, we agree with the People’s contention defendant has forfeited
his right to challenge the trial court’s sentencing decision. “A party in a criminal case
may not, on appeal, raise ‘claims involving the trial court’s failure to properly make or
articulate its discretionary sentencing choices’ if the party did not object to the sentence
at trial. [Citation.] The rule applies to ‘cases in which the stated reasons allegedly do not
apply to the particular case, and cases in which the court purportedly erred because it



2      We dispense with a recitation of the underlying facts as they are unnecessary to
the resolution of this appeal.
3      A violation of section 476a, subdivision (a) “is punishable by imprisonment in a
county jail for not more than one year, or pursuant to subdivision (h) of Section 1170.”
(§ 476a, subd. (a).) A felony punishable under section 1170, subdivision (h) is
“punishable by a term of imprisonment in a county jail for 16 months, or two or three
years.” (§ 1170, subd. (h).)
4      Undesignated rule references are to the California Rules of Court.

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double-counted a particular sentencing factor, misweighed the various factors, or failed to
state any reasons or give a sufficient number of valid reasons.’ ” (People v. Gonzalez
(2003) 31 Cal.4th 745, 751; see People v. McCullough (2013) 56 Cal.4th 589, 594-595,
597, 599.) Here, defendant does not dispute he failed to object to the sentence imposed
by the trial court. Further, he concedes the sentence was lawful. (See People v. Scott
(1994) 9 Cal.4th 331, 354 [the unauthorized sentence exception to the general
requirement that only those claims properly raised and preserved by the parties are
reviewable on appeal applies where the sentence “could not lawfully be imposed under
any circumstance in the particular case”].)
       But even if defendant had not forfeited his right to challenge the trial court’s
sentencing decision, we would deny his argument on the merits. The trial court selected
the upper term because it found that the circumstances in mitigation—defendant was
suffering from a mental condition that may have reduced his culpability for the crime
(rule 4.423(b)(2))5—were outweighed by the factors in aggravation—defendant’s prior
convictions as an adult are numerous (rule 4.421(b)(2)), defendant served a prior prison
term (rule 4.421(b)(3)), defendant was on probation when the crime was committed (rule
4.421(b)(4)), and defendant’s prior performance on probation was unsatisfactory (rule
4.421(b)(5)). On this record, we discern no abuse of discretion. The record reflects the
trial court considered valid aggravating and mitigating criteria in making its sentencing
choice. Nothing in the record demonstrates the trial court’s decision was arbitrary,
capricious, or outside the bounds of reason. Contrary to defendant’s contention, the trial
court judge did not abuse his discretion by mentioning at the sentencing hearing that he is




5     For purposes of this appeal, we will assume, without deciding, the trial court
determined that defendant was suffering from a mental condition that significantly
reduced his culpability for the crime. (See rule 4.423(b)(2).)

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normally not inclined to impose split sentences. Defendant received a split sentence and
the aggravating circumstances cited by the trial court justify an upper term sentence.
                                      DISPOSITION
       The judgment is affirmed.



                                                       NICHOLSON             , Acting P. J.



We concur:



      BUTZ                  , J.




      DUARTE                , J.




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