People v. Collins

California Court of Appeal Sep 10, 1981 No. Crim. 11151Published

Before: Carr

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Holding. The court held that a sentencing judge may consider the specific manner in which a firearm was used as an aggravating factor, even if that use also supports a sentence enhancement, and modified the judgment to correct a calculation error regarding presentence conduct credits.

Issues

Whether a sentencing court may use the specific manner of firearm use as an aggravating factor when a firearm enhancement is also applied.
Whether the trial court erred in its calculation of presentence good time/work time credits.

Disposition. affirmed as modified

Quotations verified verbatim against the opinion

“In our view, one who holds a cocked gun to his victim’s head over a period of several hours is significantly more culpable than one who merely points the weapon at the victim.”

“Under the factual circumstances of this case, the sentencing court did not err in finding defendant’s continual holding of a cocked gun to his victim’s head a factor in aggravation.”

Opinion

CARR, J.

Defendant appeals following his plea of guilty to kidnaping (Pen. Code, § 207) with use of a firearm (Pen. Code, § 12022.5), attempted robbery (Pen. Code, §§ 664 and 211) and burglary (Pen. Code, § 459).

The relevant facts surrounding the offenses are that shortly after closing time, defendant approached Sandra Prato, a clerk in a Safeway

[538]

supermarket, pointed a .357 magnum at her and ordered her to the back of the store, where he taped her hands and feet. The other clerk in the store, apparently alerted by Ms. Prato’s scream, summoned the police. After defendant was unable to find the other clerk, he returned to Ms. Prato, untaped her feet and walked behind her to the front of the store. There the police confronted defendant, and he grabbed Ms. Prato at the waist and put the gun to her head, threatening to shoot if they did not retreat. Throughout the next two hours there were negotiations between defendant and the police; during this time Ms. Prato’s hands were retaped in front of her and defendant held the cocked gun, with his thumb on the hammer, to Ms. Prato’s head or throat. After some time, defendant was provided with a car driven by Captain Mauch of the Lodi Police Department. While proceeding to the car from the store, defendant continued to hold the gun at Ms. Prato’s head. Defendant and his two hostages then drove around the Lodi, Stockton and delta areas for several hours. Once when a police car came within sight, defendant cocked the gun and pressed it against Ms. Prato. The ordeal came to a conclusion when Captain Mauch shot defendant.

Defendant was sentenced to the upper term of seven years for kidnaping, with an additional two years for gun use. The court stated the aggravating factors were “numerous.” One factor cited by the court was the holding of the cocked gun to Ms. Prato’s head was callous and vicious. Other aggravating circumstances cited by the court were that the victim was particularly vulnerable,

defendant’s actions demonstrated planning, his prior five or six felony convictions, prior uncharged prison terms, and that he was on probation at the time of the offense.

People v. Collins

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CARR, J.

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