What is the test for an abuse of sentencing?

California, United States of America

The following excerpt is from People v. Barber, 2d Crim. No. B243668 (Cal. App. 2015):

We review a trial court's sentencing decision for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 846-847.) Appellant was sentenced under section 1170, subdivision (b), which provides in pertinent part: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . In determining the appropriate term, the court may consider the record in the case, the probation officer's report, other reports, . . . and any further evidence introduced at the sentencing hearing. . . ."

During sentencing the prosecutor argued that the aggravating factors listed in the probation report supported the imposition of the upper term. Those factors are (1) appellant had engaged in violent conduct which indicated a serious danger to society, and (2) his prior convictions were numerous or of increasing seriousness. The probation report listed no mitigating factors and appellant cites none. The court announced its selection of the upper term shortly after the prosecutor cited the aggravating factors, which implies the court based its sentencing decision upon them. The court did not abuse its discretion in imposing the upper term. Because it is not reasonably probable that resentencing would result in a sentence more favorable to appellant, we will not remand this matter for a statement of reasons for the selection of the upper term. (People v. DeHoyos (2013) 57 Cal.4th 79, 155.)

Appellant further contends, and respondent appropriately concedes, that the trial court improperly imposed a section 667.5, subdivision (b) one-year

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