Is there any case law in which a judge clearly intended to impose an upper term?

Respondent argues that, since the trial judge expressly stated that she was following the probation officer's report and stated that probation was denied because of appellant's repeated criminal activities, it is clear that the judge intended to impose the upper term because of the aggravating circumstances outlined in the probation report. We disagree. The trial judge's statements are, at best, ambiguous. This is not, as respondent suggests, a case in which the judge clearly intended to impose an upper term but merely failed to slavishly adhere to ritualistic form. (See People v. Blessing (1979) 94 Cal.App.3d 835, 837-839, 155 Cal.Rptr. 780.) Additionally, as the record affirmatively reflects that the trial judge probably did not consider the relevant criteria in making the sentence choice (see Cal. Rules of Court, rule 409), such consideration cannot be presumed.

The trial judge made no clear statement on the record of the various aggravating circumstances, except to note appellant's past criminal record when denying probation for the burglary. As a result, there is no clear indication that the imposition of the upper term was based upon such circumstances. (But see People v. Powell (1980) 101 Cal.App.3d 513, 518-519, 161 Cal.Rptr. 803.)