People v. Lochmiller

Opinion

BUTLER, J.

Jo Alice Lochmiller entered a negotiated plea of guilty to 10 counts of selling unregistered securities (Corp. Code, § 25110). The court sentenced Lochmiller to serve the upper term of three years in prison on count one and imposed three-year concurrent terms on the remaining nine counts. Lochmiller appeals.

Jo Alice Lochmiller was employed by Lochmiller Mortgage Company, incorporated by her son in 1980. She sold corporate notes (investments in Lochmiller Mortgage Company) and securities which were not registered as required by California law. She was paid on a commission basis. She was assigned to a branch office in Escondido, California because she knew many people in that community. She had sold real estate for 12 years and had worked as a solicitor for a mortgage company in that area.

Lochmiller Mortgage advertised on television, in newspapers and through circulation of flyers. Jo Alice Lochmiller appeared on numerous television

[153]

commercials. Investors were attracted by promises of high interest and assurances the Lochmiller family business had been serving the community for 60 years. In fact, Lochmiller Mortgage was not affiliated with and did not have the backing and support of the well-established 60-year-old Loch-miller family businesses. The mortgage company filed bankruptcy in October 1982. Over 1,000 investors lost money in Lochmiller Mortgage. Many of them were elderly people who lost their life savings. Ms. Lochmiller sold unregistered securities to 11 of these investors who lost between $50,000 and $170,000. She had made separate sales at different times for different amounts of money to 10 of the 11 victims.

Ms. Lochmiller contends all counts but one should be stayed to avoid double punishment prohibited by Penal Code section 654; the sentencing court improperly relied upon statements of nonvictims at the sentencing hearing; and the court relied upon invalid aggravating factors in determining the appropriate sentence.

I

Penal Code section 654 proscribes multiple punishment for “[A]n act or omission which is made punishable in different ways by different” Penal Code provisions, Penal Code section 654 precludes double punishment for separate acts in a course of conduct deemed to be indivisible.