When will a judge consider prior criminal convictions for probation purposes?

Sentencing facts, such as aggravating and mitigating circumstances, are the articulation of traditional considerations that assist a judge in selecting from among the options of punishment made available by the verdict. (People v. Hernandez, supra, 46 Cal.3d at p. 205, 249 Cal.Rptr. 850, 757 P.2d 1013.) As such, sentencing facts are not findings that must be pleaded and proved to the trier of fact. (See id., at pp. 204-206, 249 Cal.Rptr. 850, 757 P.2d 1013.) In the context of a discretionary decision to grant or deny probation, prior felony convictions are sentencing facts for the court to assess, regardless of whether the convictions were pleaded. For these reasons, we conclude that it is not error for a sentencing court to consider unpleaded prior felony convictions when determining eligibility for probation under Penal Code section 1203, subdivision (e)(4).

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