People v. Cortez

Opinion

THE COURT.

*

Peter Cortez appeals his conviction of robbery (Pen. Code, § 211) based upon his plea of guilty. He challenges the court’s imposition of the upper base term of five years for the crime.

Cortez entered a Seven-Eleven store about 3 a.m., poked a screwdriver to Henry Virgil’s ribs and took money from the store. In the course of this transaction, Robert DeRosa entered the store. Cortez demanded money from DeRosa too, but didn’t get any. Cortez said he had a friend outside with a shotgun.

[494]

Cortez was charged with robbing Virgil and attempting to rob DeRosa. As to each count it was alleged Cortez used a dangerous or deadly weapon, the screwdriver, within the meaning of Penal Code section 12022, subdivision (b).

As part of a plea bargain, the attempted robbery count concerning DeRosa was dismissed and the dangerous weapon allegation was stricken from the robbery count. Cortez was on probation for an earlier robbery at the time he robbed Virgil. He had been out of custody for only 26 days. As part of the plea bargain, the court terminated the earlier probation.

In imposing the upper term of five years for the robbery the court noted: “The Court: Well, I must say, when I look at the, what I perceive to be no circumstances in mitigation and a rather substantial array of circumstances in aggravation, plus the handling of the prior case, which I don’t quarrel with, I think that’s what we agreed on. I think under the circumstances that’s the most appropriate way of doing it. But I find it a little hard, if these circumstances in aggravation and the rules for applying them are going to have any real force and effect at all, I find it a little difficult to rationalize a mid term in this case. You know, the circumstances in aggravation rather clearly and rather overwhelmingly outweigh whatever circumstances, if any, in mitigation there may be. I understand the point that’s made that we now have some additional information that we didn’t have before and I understand that traumatic experiences that he went through, but just, really, frankly, that those—those aren’t that sigficiant [sic] in my mind in exchange for this sort of conduct. As Mr. Jarvis says, almost by definition, criminal conduct is irrational or abnormal, contrary to the general rules and conduct of society. So, if that were an excuse or a circumstance in mitigation I guess that would be present in this case. So I’m not really persuaded that much that these prior incidents should be considered as any real mitigation in this case for this sort of conduct.