California, United States of America
The following excerpt is from People v. McCowan, A135463 (Cal. App. 2014):
When a trial court gives both proper and improper reasons for a sentence choice, we will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. (People v. Price (1991) 1 Cal.4th 324, 492.) We do not necessarily agree that the first three factors challenged by defendant (victim vulnerability, probation performance, and the cruelty/callousness of the crime) were improperly considered, but in all events it is clear that the court properly relied on the remaining factor (defendant's violent conduct) and the court undoubtedly would have selected the upper term based on this factor alone.8
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