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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Gregory WRIGHT, Defendant and Appellant.

Cr. 4076.

Decided: June 24, 1980

Jeffrey K. Reich, Fresno, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Anthony L. Dicce, Deputy Attys. Gen., for plaintiff and respondent.


This appeal is from a conviction of two counts of burglary based upon appellant's guilty pleas. Appellant was sentenced to state prison for a term of three years (the upper term) on each burglary count. The sentences were to be served concurrently with each other and with any prior incompleted sentences. Appellant challenges his sentences on numerous grounds. First, appellant contends that the California Rules of Court pertaining to selection of a base term and Penal Code section 1170.3 are unconstitutional. Appellant also contends: (1) the trial court's imposition of the upper base term was unjustified because the court failed to consider mitigating circumstances and improperly relied on circumstances in aggravation which were not supported by the evidence; (2) the use of his prior convictions as an aggravating circumstance to justify imposition of the upper term constitutes double jeopardy; (3) the probation report improperly omitted materials affecting his credibility and included an inflammatory statement of one of the victims; and (4) he was deprived of his constitutional right to the effective assistance of counsel at sentencing.

The facts underlying the court's sentencing choice are as follows. The probation report filed with the court noted that appellant had pled guilty to both counts of burglary on condition that the terms for both counts be concurrent with each other and with time received on exclusion from the California Rehabilitation Center (CRC). The report summarized appellant's prior criminal record which included nine arrests and convictions of offenses of varying seriousness over an eleven-year period for which he had never been sentenced to prison.

The probation report noted the following circumstances surrounding the present offenses. The residence of Clint Smoot was burglarized in August 1978, and the property taken included numerous items of jewelry, approximately $200 in coins and currency, and several items of clothing and personal effects. The approximate value of the missing items was originally estimated at $1,500. Mr. Smoot later revised his estimate of his losses upward to approximately $2,300. The residence of Arthur Jones was also burglarized in August 1978, and the missing items included appliances, silverware, jewelry, and liquor; the value of the missing items was estimated at $3,250. Appellant's vehicle was observed departing from the scene of the Jones burglary; this led to appellant's apprehension. After being arrested, appellant advised the arresting officers that he would be willing to discuss his involvement in the Jones and Smoot burglaries as well as several other burglaries. Appellant cooperated with law enforcement and pointed out several other residences where burglaries had been committed.

There was no written statement from appellant included in the probation report; however, the report noted that appellant said his motive for the burglaries was to accumulate money to return to Oregon and not to get money for heroin. The report also noted that appellant had told the probation officer that while appellant was discussing the burglaries with detective personnel in the presence of a public defender and a deputy district attorney, it was determined that appellant would be committed to prison on the burglary charges for no more than two years.

The following information concerning the victims was contained in the probation report. Mr. Smoot offered no opinion on sentencing appellant. The other victim, Arthur Jones, expressed the opinion that appellant “should be hung by the neck until dead.”

The probation report listed only appellant's voluntary cooperation with the authorities as a circumstance in mitigation. It listed seven circumstances in aggravation, including the four adopted by the sentencing judge at the time he imposed sentence.

At the sentencing hearing, the court and counsel first discussed the appellant's understanding that one of the conditions of the guilty plea would be that he receive no more than the middle term of two years. Appellant's counsel noted that such a condition was never placed on the record when the pleas were taken. The deputy district attorney said it was his understanding that the only condition of the plea was that appellant receive concurrent sentences. He also stated he was not prepared to agree to a two-year term, but that he was willing to allow appellant to withdraw his guilty plea if appellant so desired. Appellant's attorney stated that he had consulted with his client, and appellant did not wish to withdraw his plea.

Defense counsel argued against imposition of the upper term. He argued that the court should not rely on some of the circumstances in aggravation set forth in the probation report because there was no evidence of multiple victims, no evidence that the crimes were premeditated, and no evidence that the taking involved property of great monetary value. Defense counsel also argued that appellant was not on parole when he committed the crime but was rather an out-patient of CRC.

The court then permitted appellant to argue in his own behalf. He contended that his prior criminal record should not be considered an aggravating circumstance because, although he had nine convictions in eleven years, appellant had never been sentenced to state prison. Appellant also argued that there were several circumstances in mitigation including the fact that appellant had cooperated with the authorities (which was noted in the probation report) and also that appellant stole in order to accumulate enough money to go to Oregon. Appellant said that this should be considered a mitigating circumstance in the nature of stealing to provide necessities for his family and himself.

Following argument, the court announced the following reasons for its sentencing choice:

“. . . (C)oncerning the circumstances in the matter, the court does find that the defendant voluntarily cooperated and included admitting his guilt right after his arrest(.) (A)nd in aggravation, the court finds that there were multiple victims, meaning more than one to the court, that there was premeditation and further in the carrying out of these burglaries the property taken was of great monetary value.

“The court is convinced that the defendant's convictions are numerous in the past.

“I am not going to include the parole performance situation or the outpatient from CRC status.

“The defendant is sentenced to the State Department of Corrections for the term prescribed by law for the three years or aggravated term in light of the circumstances in aggravation.”


I. Whether the California Rules of Court concerning sentencing are constitutionally infirm.

Appellant first contends that the aggravated part of his sentence must be stricken because it was imposed pursuant to the California Rules of Court relating to sentencing which were formulated in violation of the constitutional requirement of separation of powers. Related to this contention is appellant's argument that Penal Code section 1170.3 involves an unconstitutional delegation of legislative authority.

Penal Code section 1170.3 provides that: “The Judicial Council shall seek to promote uniformity in sentencing under Section 1170, by: (a) The adoption of rules providing criteria for the consideration of the trial judge at the time of sentencing regarding the court's decision to: . . . (2) Impose the lower or upper prison term.” Appellant contends that this code section and the sentencing rules promulgated by the Judicial Council pursuant thereto (rule 401 et seq.) violate the separation of powers mandated by the California Constitution. Our Supreme Court considered this kind of a challenge to section 3051 of the Welfare and Institutions Code in People v. Navarro (1972) 7 Cal.3d 248, 102 Cal.Rptr. 137, 497 P.2d 481. The Navarro court declared unconstitutional that statutory provision, which required the district attorney to concur in diverting defendants to narcotics treatment facilities after conviction for certain crimes. In so doing, the court observed:

“Defining offenses and prescribing punishments (mandatory or alternative choices) are legislative functions designed to achieve legitimate legislative goals and objectives. The imposition of sentence and the exercise of sentencing discretion are fundamentally and inherently judicial functions.” (Id., at p. 258, 102 Cal.Rptr. at p. 143, 497 P.2d at p. 487.)

The code section and sentencing rules in question in no way alter this proper division of authority. The Legislature in enacting the Determinate Sentencing Act has fulfilled its duty of defining offenses and prescribing the possible prison terms for such offenses. The California Rules of Court promulgated pursuant to Penal Code section 1170.3 by the Judicial Council specify certain circumstances in aggravation and mitigation and require the court to consider them in choosing which of the specified sentences is proper in a given case. The choice of a sentence remains a judicial function under these rules. The rules are consistent with established law that the sentencing court must consider all the attendant circumstances of the crime of which the defendant has been convicted (see People v. Chi Ko Wong (1976) 18 Cal.3d 698, 135 Cal.Rptr. 392, 557 P.2d 976). The sentencing rules merely set forth guidelines for the court to consider in fulfilling this judicial sentencing function. There is no improper delegation of authority. For these reasons, we reject the contention that Penal Code section 1170.3 and the sentencing rules promulgated thereunder are unconstitutional.

II. Whether the trial court improperly imposed the upper term.

Imposition of the upper term is permitted under rule 439 of the California Rules of Court only when circumstances in aggravation are established by a preponderance of the evidence and outweigh circumstances in mitigation.[FN1] As noted above, the trial court found only one circumstance in mitigation that appellant had voluntarily cooperated with the authorities after his apprehension. It found four circumstances in aggravation: (1) multiple victims; (2) premeditation; (3) taking of property of great monetary value; and (4) appellant had suffered numerous prior convictions (rule 421(a)(4); (a)(8); (a)(10); and (b)(2).

(a) Did the trial court fail to consider circumstances in mitigation ?

Appellant contends the court should have considered the additional mitigating circumstances that nobody was hurt during the burglaries and that the amounts of property taken were small and were merely taken to provide necessities for appellant. Appellant is apparently referring to the two mitigating circumstances set forth in rule 423(a)(6) and (a)(8). We hold that the trial court was not required to consider either circumstance in mitigation. The language of rule 423(a)(6) suggests the defendant is entitled to the benefit of this mitigating circumstance when he makes an affirmative effort, to avoid harm to the victim. That rule provides in pertinent part: “The defendant exercised caution to avoid harm to persons . . . or no harm was done or threatened against the victim” (emphasis added). There was no information offered to the trial court which was consistent only with such a finding. Certainly, the court was not required, as a matter of law, to find that appellant exercised such affirmative consideration for human life.

Subdivision (a)(8) of rule 423 provides that a circumstance in mitigation may exist where “(t)he defendant was motivated by a desire to provide necessities for his family or himself.” Although appellant said that he stole to get money to return to Oregon, this is not a “necessity” for his family or himself.

(b) Did the trial court improperly rely on circumstances in aggravation ?

(1) Multiple victims.

One of the aggravating circumstances relied on by the trial court in imposing the upper term was that multiple victims were involved. The record indicates the court may have been referring to the fact that two different residences had been burglarized. If so, that was improper because each victim is the subject of a separate count on which appellant received a sentence (concurrent). The two burglaries were separate crimes and were not transactionally related. To interpret rule 421(a)(4) to apply under these circumstances would open the way to a sentence for each of the burglaries and an aggravation of each sentence based on the victim of the other.

If the trial judge relied on rule 421(a)(4) for any reason other than two residences being involved, our conclusion is the same. The nature of the crime, viz burglary, for which sentence was imposed must be considered in deciding whether there were multiple victims of each burglary. At common law, burglary was a crime against the habitation. The common law definition of burglary has been expanded by California statute (Pen.Code, s 459). Nevertheless, the elements of the crime remain unlawful entry into a structure with intent to commit larceny or any felony. Where property is taken during a burglary, an argument might be made that there are victims of the crime both in the sense of those who own or possess the structure and those whose property is taken after the entry. In that sense, it could be argued that there were multiple victims at least as to the Smoot burglary because more than one person lived in the house and presumably owned some of the property which was taken.[FN2] However, we believe that the gravity of the offense was in no way increased by the fact that the amount of property stolen may have belonged to several people rather than one. Since none of the residents were present during the burglary, appellant's commission of the burglaries did not otherwise involve those individuals. We therefore conclude that the burglaries did not involve multiple victims for purposes of rule 421(a)(4).

It follows from the above that the trial court erred in relying on the involvement of multiple victims in the burglaries for which it imposed sentence. However, the trial court had before it other factors on which it expressly relied and on which it could have relied. The total picture shows aggravating factors not counterbalanced by the one circumstance in mitigation. In particular, we note that appellant had suffered numerous prior arrests and convictions. It is not reasonably probable a different base term would have been selected had the trial court not erroneously considered there were multiple victims involved. We, therefore, find no error that requires remand for resentencing (see People v. Dozier (1979) 90 Cal.App.3d 174 at p. 179, 153 Cal.Rptr. 53).

(2) Great monetary value.

Appellant also contends the court erred in applying the aggravating circumstance pertaining to the taking of property of great monetary value (rule 421(a)(10)). Appellant notes that Penal Code section 12022.6 the enhancement statute pertaining to great monetary loss mentions the figures $25,000 and $100,000. He contends that these figures are indications of what the Legislature considers to be great monetary value. The losses in the instant burglaries fall far short of those figures. Therefore, according to appellant, they cannot be deemed to constitute losses of great monetary value. However, rule 421(a)(10) provides that a circumstance in aggravation exists where the crime involves a taking of great monetary value “whether or not charged or chargeable as an enhancement under section 12022.6.” This language makes it clear that the figures in that code section are not controlling with respect to whether this circumstance in aggravation is present.

The actual takings in the present case were estimated at $3,250 for the Jones burglary and at $2,300 for the Smoot burglary. In deciding whether each of these sums constitutes great monetary value, the court could take into account the fact that the burglaries were complete upon entry with the requisite intent. These were not minor crimes where only relatively inexpensive property was stolen. (Cf. People v. Simpson (1979) 90 Cal.App.3d 919, 926, 154 Cal.Rptr. 249.)

Although we decline to set a precise amount which would constitute great monetary value in every case, we hold that under the circumstances of the present case the trial court did not err in considering the amount of property taken in the burglaries as an aggravating circumstance.

We note that the one year additional punishment resulting from the trial court's imposition of the upper base term in the present case is not based entirely on the single aggravating circumstance of great monetary loss. If that were the case, we question whether the amounts involved here would be sufficient, because the Legislature in enacting Penal Code section 12022.6 has provided that one year additional punishment shall be added when the loss is between $25,000 and $100,000. Thus, it would appear out of line to impose the upper term on the basis of monetary losses the size of those in the present case if that were the only aggravating circumstance. However, since there were other aggravating circumstances present here, we conclude the trial court could properly consider the amount of loss involved here as part of the total picture justifying imposition of the upper term.

III. Whether use of appellant's prior convictions as an aggravating circumstance constitutes double jeopardy.

Appellant argues that use of his prior convictions as an aggravating circumstance constitutes double jeopardy. He acknowledges that the California courts have already decided that use of a prior conviction to aggravate or enhance punishment does not constitute double jeopardy (see, e. g., People v. Collins (1959) 172 Cal.App.2d 295, 301, 342 P.2d 370 and cases cited). We reject appellant's double jeopardy argument. As explained in the recent case of People v. Johnson (1979) 95 Cal.App.3d 352, 157 Cal.Rptr. 150, the increased penalty imposed for a prior is attributable solely to the new, rather than the former, crime (id., at p. 357, 157 Cal.Rptr. 150). Thus, there is no double jeopardy violation.

IV. Whether the probation report was fatally defective.

(a) Omission of statements from police officers concerning the plea bargain conference.

Appellant contends the probation report filed with the court was “fatally defective because it omitted statements from relevant police officers concerning the plea bargain conference which was relevant to the issue of aggravation.” As previously noted, appellant may have been under a misunderstanding as to the terms of his plea bargain but the plea as he understood it was not made a part of the record when the pleas were taken, and he declined to withdraw his plea after the misunderstanding became obvious. He now contends that he was prejudiced, and the entire sentencing process was “tainted” because the report did not include testimony from police officers to back up appellant's version of his plea bargain understanding. He argues that this may have adversely affected his credibility in the eyes of the sentencing judge.

There is no indication in the record that the court's sentencing choice was influenced by the fact that appellant's understanding of the plea bargain was unsupported by other witnesses. Moreover, appellant has failed to demonstrate that there were any other witnesses who could have corroborated his account of the plea bargain. Appellant's attack on the probation report because of this omission is devoid of merit.

(b) Inclusion of the victim's opinion that appellant should receive harsh treatment.

Appellant also contends it was error to include in the probation report a statement from one of the victims to the effect that appellant “should be hung by the neck until dead.” He contends this statement may have improperly influenced the judge and tainted the sentencing process. There is nothing in the transcript of the sentencing hearing which suggests the judge was influenced by the victim's desire for revenge. It did not appear, expressly or by implication, in the court's statement of the factors which influenced it to impose the upper term. The appellant has failed to demonstrate how inclusion of this statement tainted the sentencing process or prejudiced him.

V. Whether appellant was deprived of his constitutional right to effective assistance of counsel at sentencing.

Appellant contends his attorney did not adequately represent him at sentencing because counsel failed to produce witnesses who could testify as to the terms agreed to at the initial meeting concerning the plea bargain. He argues that counsel should have called other witnesses to corroborate appellant's recollection of the agreement that he would receive a maximum prison term of two years.

The record does not reveal negligence in counsel's failure to call additional witnesses at sentencing. Counsel did not ignore the matter; there had been investigation concerning the condition asserted by appellant that he receive only the middle term. That asserted condition was not made a part of the record when the pleas were taken. The deputy district attorney stated that he would not agree to such a condition and that he had a specific recollection of the initial conference when appellant was told he would most likely receive the upper term because of his prior criminal record.

Moreover, appellant was given an opportunity to withdraw his plea at sentencing, and he declined to do so. Since appellant agreed to accept the bargain as explained by the prosecutor at sentencing, he should not now be able to assert that his counsel should have been more diligent in trying to persuade the court and the prosecutor to agree to a bargain incorporating the condition of a two-year maximum prison term.

Our Supreme Court has explained the burden borne by a party asserting ineffective assistance of counsel in People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859. The appellant bears an initial burden of showing that counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, he must show that counsel's acts or omissions deprived him of a potentially meritorious defense. Appellant has failed to make either showing.

The judgment is affirmed.



1.  Subsequent references to rules are to the California Rules of Court. Circumstances in aggravation and in mitigation are set forth respectively in rules 421 and 423. These lists are not exclusive. (Rule 408.)

2.  It is unclear from the record whether more than one person lived in the Jones residence.

HAMLIN, Associate Justice.[FN*] FN* Assigned by the Chairperson of the Judicial Council.

GEO. A. BROWN, P. J., and ZENOVICH, J., concur.