What is the test for an upper term for abuse of power on appeal?
California, United States of America
The following excerpt is from People v. Weekly, C085971 (Cal. App. 2020):
We review a trial court's decision to impose the upper term for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) An upper term may be based on "any aggravating circumstance" the court deems significant so long as it is " 'reasonably related to the decision being made.' " (Id. at p. 848.) A court abuses its discretion if it relies on circumstances not relevant to the decision or that "constitute an improper basis for decision." (Id. at p. 847.)
Defendant's claim is forfeited by trial counsel's failure to object at trial. (See People v. Gonzalez (2003) 31 Cal.4th 745, 751 ["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"].) Since defendant claims counsel was ineffective in failing to do so, we consider the merits of his claim.
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