People v. Collier

Opinion

THE COURT.* Defendant appeals from a judgment sentencing him to state prison after a jury found him guilty of second degree burglary. (Pen. Code, §§ 459, 460.)

[660]The sole issue is whether the trial court based its sentencing determinations on incorrect data when it declared that defendant was ineligible for probation under Penal Code section 1203, subdivision (d). (See In re Huddleston (1969) 71 Cal.2d 1031, 1037 [80 Cal.Rptr. 595, 458 P.2d 507].) We have concluded that there was no error.

The relevant portions of section 1203, subdivision (d), read:

“(d) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:

“(1) Unless he had a lawful right to carry a deadly weapon, other than a firearm, at the time of the perpetration of the crime or his arrest, any person who has been convicted of arson, robbery, burglary, burglary with explosives, rape with force or violence, murder, assault with intent to commit murder, attempt to commit murder, trainwrecking, kidnapping, escape from the state prison, or a conspiracy to commit one or more of such crimes and was armed with such weapon at either of such times.

“(4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony.

“(6) Any person who has been previously convicted once in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony, if he committed any of the following acts:

“(i) Unless he had a lawful right to carry a deadly weapon at the time of the perpetration of such previous crime or his arrest for such previous crime, he was armed with such weapon at either of such times.

“(ii) He used or attempted to use a deadly weapon upon a human being in connection with the perpetration of such previous crime.”

Although there is some uncertainty in the record before us, it appears that defendant was convicted in February 1970 of at least one,