PEOPLE v. SCHMIDT (1978)

Roger Ellis Schmidt and Randy Dean Grover appeal from judgments of imprisonment which were rendered after they had pleaded guilty to several felonies committed in connection with invasions of the Neyman, Urrutia and Cortopassi habitations.

The Nyman Burglary [FN1]

Ray Neyman and his wife lived in a mobile home. At about 3:00 a. m. on July 5, 1977, Neyman awakened when his wife screamed. Neyman saw two men standing in the bedroom. Neyman tried to push the men out of the room. One man put what Neyman thought was a gun in his side and told him to be quiet. Mrs. Neyman continued to scream and the two men left. The Neymans' watches were taken.

The Urrutia Burglary

Half an hour later, police officers responded to a report of a burglary in progress at the Urrutia residence. The officers saw that the front door had been damaged. No lights were on in the house, but the police heard movement inside. The door opened and Grover was seen standing inside holding a sleeping bag. Grover immediately fled through the house with an officer in pursuit. The officer apprehended the fugitive and handcuffed him. Meanwhile, another officer had detained Schmidt. A search of appellants revealed that each carried a buck knife. A man's watch with Neyman's name on it was recovered, as well as a woman's watch which Mrs. Neyman later identified as hers. No one was at home at the Urrutia residence at the time of the burglary.

The Cortopassi Burglary

It was later established that during the previous evening the motel room of the Cortopassi family had been entered and ransacked while they were away at dinner. Mrs. Cortopassi discovered that jewelry and money were missing. Appellants' responsibility for the Cortopassi burglary was established by their pleas of guilty.

The court pronounced judgment under the Determinate Sentence Law (Pen.Code, s 1170 et seq.), sentencing Schmidt as follows:

Case No. 62957 (erroneously referred to at sentencing as Case No. 62958)

Count II (first degree burglary of Neyman residence): upper term of four years.

Count I (apparently, second degree burglary of Neyman residence): eight months to be served consecutively with Count II.

Prior conviction: One-year enhancement of Counts II and I.

Case No. 63105 (erroneously referred to at sentencing as Case No. 63104)

Count I (second degree burglary of Cortopassi residence): eight months to be served consecutively with sentences under Case No. 62957.

The total sentence derived from the two cases is six years and four months.

The court sentenced Grover as follows:

Case No. 62958

Count II (first degree burglary of Neyman residence): upper term of four years.

Count I (apparently, second degree burglary of Neyman residence): eight months to be served consecutively with Count II.

Case No. 63104

Count I (second degree burglary of Cortopassi residence): eight months to be served consecutively with sentence in Case No. 62958.

The total sentence derived from the two cases is five years and four months.

Appellants argue that Penal Code section 1170, subdivision (b), precludes the use of circumstances personal to the defendant in determining which of the terms of imprisonment is to be imposed. The relevant part of section 1170 reads: “(b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” Appellants assert that the phrase “circumstances in aggravation or mitigation of the crime ” (emphasis added) limits the court to consideration of factors related to the commission of the particular crime. Therefore, appellants contend that the Judicial Council exceeded its authority when it provided in rules 421(b) and 423(b), California Rules of Court, for consideration also of factors personal to the defendant.^[FN2] This contention is without merit. Penal Code section 1170, subdivision (b), expressly provides for the consideration of probation and other reports which contain information about the defendant rather than the crime in determining whether the upper or lower term should be imposed.^[FN3] The Judicial Council did not exceed its authority when it provided in rules 421(b) and 423(b) for consideration of factors personal to the defendant.

Appellants contend that the circumstances of this case do not warrant imposition of the upper term for the first degree burglary of the Neyman residence. The trial court relied on Rules of Court 421(a)(2) and (3) in imposing the upper term. Rule 421(a), which specifies the circumstances which point toward aggravation, provides in subsections (2) and (3): “(2) The defendant was armed with or used a weapon at the time of the commission of the crime, whether or not charged or chargeable as an enhancement under section 12022 or 12022.5. (3) The victim was particularly vulnerable.” These factors in aggravation apply to both appellants. Each carried a knife while committing the burglary. Rule 421(a)(2) therefore is applicable.

Crimes against those who are particularly vulnerable, e. g., the elderly, are particularly deserving of condemnation. Rule 421(a)(3) embodies this philosophy in providing greater punishment for criminals whose victims are particularly vulnerable. Here, the trial court reasonably found that the victims were particularly vulnerable because of their advanced age. Imposition of an upper range sentence on this basis was proper.

In sentencing each appellant the court ordered the terms for the two counts of second degree burglary (Urrutia and Cortopassi) to run consecutively to the term for the first degree burglary (Neyman). Stated separately by transactions, the results on the Urrutia and Cortopassi counts were as follows:

(1) The Urrutia Burglary:

The judge sentenced each appellant to eight months in prison, referring to Count I in case 62958. Actually, only Grover had been charged in case 62958; Schmidt had been identically charged with this count in case 62957. The reference to Count I was erroneous as to both appellants; as to each, that count had been dismissed pursuant to the negotiated pleas (inferably Count III was intended because that was the only count remaining). To support consecutiveness for this count the court referred to the circumstances of multiple victims (rule 425(a)(4)) and numerous crimes (rule 425(a)(5)). But it was in Count I, which had been dismissed, that there were multiple victims (the Neymans). In Count III which was not dismissed (the second degree burglary of the Urrutia residence) there were no victims present. (It is true that testimony in the preliminary transcript indicates that the true owners in possession were Mr. and Mrs. Urrutia, multiple victims within the meaning of rule 425(a)(4). However, it appears from the reporter's transcript that the trial judge was considering the Neymans rather than the Urrutias when he spoke of multiple victims.) Thus, the court apparently confused not only the numbers of the counts but the fact situations as well.

It may be noted in passing that the error in identifying the counts was attempted to be corrected in the abstract of judgment: it shows a consecutive sentence for Count III in case 62958. If the only error had been the substitution of the number I for number III in case number 62958, the error could be considered clerical and therefore could be corrected. (People v. Flores (1960) 177 Cal.App.2d 610, 2 Cal.Rptr. 363.) However, here there appears to have been confusion as to the factual circumstances of the counts. This court cannot determine whether the trial judge would have imposed a consecutive sentence on the basis of the numerous crimes (rule 425(a)(5)) alone had he been considering the Urrutia burglary (where there was no confrontation with victims) rather than the Neyman robbery where a confrontation occurred.

(2) The Cortopassi Burglary

The trial court also sentenced each appellant to an eight-month consecutive sentence for the second degree burglary of the Cortopassi residence. The criteria used for imposing a consecutive sentence on Grover were that he was on probation when he committed the crime (rule 421(b)(4)), and that his prior performance on probation was unsatisfactory (rule 421(b)(5)). Use of factors in aggravation under rule 421 in imposing consecutive sentences is proper if the same factors have not been used to aggravate a sentence. (Pen.Code, s 1170, subd. (b); rules 441(c) and 425, Cal.Rules of Court.) The probation report shows that Grover was on probation at the time of the crime and that his performance on probation had been unsatisfactory. The use of these factors to impose a consecutive sentence was proper since other factors had been used in aggravation: the use of weapons and the vulnerability of the victims. Therefore, the imposition of the eight-month consecutive term on appellant Grover for the second degree burglary of the Cortopassi residence was proper.

The basis for imposing a consecutive sentence on appellant Schmidt for second degree burglary of the Cortopassi residence was the number of crimes he had previously committed. (Rule 421(b)(2), Cal.Rules of Court.) Appellant's adult record shows terms of imprisonment for burglary (1968), sodomy (1969), and a petty theft fine (1975). Use of recidivism in imposing the consecutive sentence was proper since Schmidt's first degree burglary sentence had been aggravated upon consideration of other factors: carrying weapons and the vulnerability of the victims. The eight-month consecutive sentence of Schmidt for the second degree burglary of the Cortopassi residence is to be affirmed.

Appellants also contend that the court improperly used factors personal to them for aggravation and for consecutiveness. But as we have seen the judge used factors related to the crime in imposing the upper term on each appellant; thus this contention is not supported by the record.

Appellant Schmidt contends that he had not been imprisoned for a prior conviction and therefore the additional year added to his sentence pursuant to Penal Code section 667.5^[FN4] should be stricken. But appellant admitted an allegation that he had been imprisoned for the prior felony conviction. “Where an information charges the accused with a former conviction, and with having served a term of imprisonment therefor, and upon arraignment and the reading of the information to him he admits, without reservation, that he has suffered such conviction, it must be assumed that he knowingly admitted that he served the sentence as alleged in the information. To determine otherwise would be quibbling with the facts.” (People v. Franco (1970) 4 Cal.App.3d 535, 540, 84 Cal.Rptr. 513, 516.) Since appellant Schmidt had not remained free of prison custody for over five years, use of the prior felony conviction to add another year to the sentence was proper. (Pen.Code, s 667.5.)

The judgments are reversed as to the eight-month consecutive sentences for second degree burglary, erroneously specified as Count I of case 62958 by the trial judge, with directions to rearraign appellants and pronounce judgment for Count III in case 62957 (Schmidt) and 62958 (Grover). In all other respects the judgments are affirmed.

FOOTNOTES

1.  The offense narratives are derived from the probation report.

2.  Rules of Court, rule 421:“Circumstances in aggravation include:(b) Facts relating to the defendant, including the fact that:(1) He has engaged in a pattern of violent conduct which indicates a serious danger to society.(2) The defendant's prior convictions as an adult or adjudications of commission of crimes as a juvenile are numerous or of increasing seriousness.(3) The defendant has served prior prison terms whether or not charged or chargeable as an enhancement under section 667.5.(4) The defendant was on probation or parole when he committed the crime.(5) The defendant's prior performance on probation or parole was unsatisfactory.“Rules of Court, rule 423:“Circumstances in mitigation include:(b) Facts relating to the defendant, including the fact that:(1) He has no prior record or an insignificant record of criminal conduct considering the recency and frequency of prior crimes.(2) The defendant was suffering from a mental or physical condition that significantly reduced his culpability for the crime.(3) The defendant voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process.(4) The defendant is ineligible for probation and but for the ineligibility would have been granted probation.(5) The defendant made restitution to the victim.(6) The defendant's prior performance on probation or parole was good.“

3.  Penal Code section 1170, subdivision (b), provides in part:“In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer's report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution or the defendant, and any further evidence introduced at the sentencing hearing.”

4.  Penal Code section 667.5, subdivision (b):“Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”

CHRISTIAN, Associate Justice.

RATTIGAN, Acting P. J., and PAIK (Under assignment by the Chairperson of the Judicial Council), J., concur. Hearing granted; BIRD, C. J., TOBRINER and MANUEL. JJ., did not participate.