People v. Simpson
| Decision Date | 23 March 1979 |
| Docket Number | Cr. 17623 |
| Citation | 154 Cal.Rptr. 249,90 Cal.App.3d 919 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Charles Douglas SIMPSON, Defendant and Appellant. |
Evelle J. Younger, Atty. Gen. of the State of Cal., Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, J. Patrick Collins, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
On appeal from judgments of conviction for burglary, appellant contends that the trial court abused its discretion in imposing the upper term under the Determinate Sentence Law (DSL). In particular, it is argued that the court erred in finding as circumstances in aggravation (1) that appellant was going to receive concurrent terms, and (2) that appellant's prior record was poor. It is further argued that the court failed to consider as circumstances in mitigation (1) that the crime was minor, and (2) that appellant's conduct was partially excused and his culpability reduced by alcoholism. We conclude that the judgments must be reversed because the court erred in three respects: (1) Under the peculiar facts of this case the court improperly considered the fact that appellant would receive concurrent terms as a circumstance in aggravation; (2) The court failed to consider appellant's alcoholism as a mitigating factor; and (3) The court, in fact, viewed appellant's alcoholism as an aggravating factor.
In two separate actions appellant pled guilty to burglary of the same liquor store in Santa Cruz. The probation report in action No. 62648 states that shortly after midnight on May 30, 1977, appellant and a drinking companion, having consumed one-half gallon of wine, broke into Butler's Liquor Store and took three half gallons of whiskey, several cartons of cigarettes, and a few six packs of beer. Appellant admitted the crime, attributed his troubles to alcoholism and stated that he would like to undergo treatment for that problem. He pled guilty to burglary and received three years probation with conditions including that he serve nine months in county jail and participate in alcoholic counseling programs. Within two months, probation was summarily revoked because appellant escaped from In its supplemental report prepared after the second crime, the probation department recommended that appellant be sentenced to state prison for the term provided by law in action No. 62648 (under the Indeterminate Sentence Law (ISL)), and for the maximum term in action No. 63728 under the DSL. On November 9, 1977, the court pronounced judgments and sentenced appellant to prison in accord with these recommendations, the terms to run concurrently. (A third action was dismissed on motion of the district attorney.) Appellant filed timely notice of appeal from the two judgments.
the Sheriff's Rehabilitation Facility. Ten weeks after his escape appellant again burglarized Butler's Liquor Store, giving rise to action No. 63728. Appellant explained to the probation officer that again he was drunk when he committed the crime, having shared about 10 quarts of beer and a fifth of rum with his companion. They then broke the front window of the liquor store and took a quantity of liquor and cigarettes. Police followed a trail of broken bottles leading from the store, recalled the previous incident, and found appellant hiding in the same place he had been when apprehended on May 30.
At the beginning of the sentencing hearing of November 9, 1977, the court stated that it was considering two issues whether the two prison sentences should run concurrently, and whether the base term in action No. 63728 should be fixed at the middle, upper, or lower level. When counsel agreed that the prison sentences had to run concurrently under the terms of the plea bargain in action No. 63728, the focus of the hearing shifted to the second issue. 1
Second degree burglary is punishable by imprisonment in county jail not exceeding one year, or in state prison for sixteen months, two or three years. (Pen.Code, §§ 18, 461.) In sentencing appellant to prison for this offense, the court was required to impose the middle term unless it found circumstances in aggravation or mitigation. In determining whether there are such circumstances, a trial court must look to the record of the case, the probation report, statements of counsel, and other relevant data. In all cases the court is required to apply the rules of the Judicial Council. (Pen.Code, § 1170, subds. (a)(2), (b).) 2
The probation report cited no circumstances in mitigation but three circumstances in aggravation: (1) that appellant would receive concurrent sentences; (2) that appellant's record showed numerous crimes related to property; and (3) that appellant's prior performance on probation was unsatisfactory. The report cited these applicable sentencing rules of the Judicial Council found in the California Rules of Court:
In applying these rules the court may select the upper term only if circumstances in aggravation are established by a preponderance of the evidence and outweigh circumstances in mitigation. The court is required to give the facts and reasons for selecting the upper term. (Cal.Rules of Court, rule 439(b), (c); People v. Nelson (1978) 85 Cal.App.3d 99, 149 Cal.Rptr. 177, hg. den.) The court cited two circumstances in aggravation when it selected the upper term: (1) that appellant was receiving concurrent terms pursuant to the plea bargain (Cal.Rules of Court, rule 421(a)(7), Supra ); and (2) that appellant's record showed numerous crimes related to property (Cal.Rules of Court, rule 421(b)(2), Supra ). The propriety of the court's findings will be examined in turn.
Appellant contends that the trial court erred in viewing the fact he was to receive concurrent terms as a circumstance in aggravation under rule 421(a) (7). The point is well taken. The rule permits a finding of a circumstance in aggravation where the "defendant was convicted of other crimes for which consecutive sentences Could have been imposed . . . ." (Cal.Rules of Court, rule 421(a)(7); italics added.) This was not such a case. Pursuant to the plea bargain in the action in question (No. 63728), appellant entered a plea of guilty to second degree burglary with the understanding that any sentence imposed "will run concurrent" with any sentence imposed for probation violation in action No. 62648. The court, having approved the plea bargain, could not sentence appellant to a punishment more severe than that specified in it and could not proceed as to such plea other than as specified therein. (Pen.Code, § 1192.5.) Thus, because of the bargain, this was not a case in which consecutive sentences "could have been imposed." (See People v. Ramos (1972) 26 Cal.App.3d 108, 110-111, 102 Cal.Rptr. 502; see also In re Troglin (1975) 51 Cal.App.3d 434, 124 Cal.Rptr. 234; cf. In re Gray (1978) 85 Cal.App.3d 255, 149 Cal.Rptr. 416.) 4 The trial court therefore erred in applying rule 421(a)(7). Because reversal is required for reasons discussed below, we decline to address the People's claim that this error was harmless.
The trial court cited as the other circumstance in aggravation the fact that appellant's record showed "numerous crimes related to property." Rule 421(b) (2), to which the court specifically referred, provides that a circumstance in aggravation can be found where defendant's juvenile and /or adult record reflects crimes which are numerous or of increasing seriousness. Upon reviewing appellant's record, which we summarize in the margin, 5 we find no Second, appellant proposes that his priors were not "numerous," citing such dictionary definitions as "very many; forming a great number," and urging that five, by any definition, is not numerous. In the abstract five as a quantity may not indicate "very many" or "a great number," but when it is applied to prior criminal adjudications, common sense dictates that it is more than ample to justify application of the rule. If the law were to suppose otherwise, then as Mr. Bumble remarked, "the law is a ass, a idiot."
error in the trial court's application of this rule. Appellant attacks the court's ruling on two bases. First, he argues that in referring to the fact that he had suffered numerous priors "related to property," the court was introducing a criterion not listed in the sentencing rules. The People's answer to this contention is well reasoned, and we adopt it. It is clear that the court's recognition of the type of prior crimes was of little moment. The point is that his five prior crimes (two petty thefts, joyriding, grand theft, and burglary) were sufficiently numerous, and of increasing seriousness, to justify application of the rule in question.
Furthermore, the word "numerous" must be interpreted in the context of the sentencing rules, and the provision in question should be contrasted with the wording that describes a good record for purposes of mitigation: "(Defendant) has no prior record or an insignificant record of criminal conduct considering the...
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