People v. Schaefer

California Court of Appeal

People v. Schaefer

18 Cal. App. 4th 950, 22 Cal. Rptr. 2d 536, 93 Cal. Daily Op. Serv. 6833, 93 Daily Journal DAR 11664, 1993 Cal. App. LEXIS 926

CourtCalifornia Court of Appeal

DecidedAugust 9, 1993

DocketD015839

StatusPublished

Cited by9 cases

This text of 18 Cal. App. 4th 950 (People v. Schaefer) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Schaefer, 18 Cal. App. 4th 950, 22 Cal. Rptr. 2d 536, 93 Cal. Daily Op. Serv. 6833, 93 Daily Journal DAR 11664, 1993 Cal. App. LEXIS 926 (Cal. Ct. App. 1993).

Pincite

Opinion

WIENER, Acting P. J.

Defendant Ferdinand Gustave Schaefer appeals from the judgment entered on his negotiated guilty plea to six counts of robbery and his admission that the Penal Code section 12022.5, subdivision (a) enhancement as to each count and the three Penal Code section 667, subdivision (a) prior felony convictions were true. Schaefer’s sole contention is that he is similarly situated to the defendant in People v. Vasquez (1992) 7 Cal.App.4th 763 [9 Cal.Rptr.2d 255], who obtained a reversal of true findings on firearm enhancements because of the legislative decision to remove pellet guns from the statutory definition of “firearm.” (Id. at pp. 766-768.) We partially agree. Schaefer’s use of a pellet gun during his commission of each of the charged offenses entitles him to the benefit of Vasquez. However, Vasquez does not eliminate the law holding a pellet gun to be a deadly or dangerous weapon within the meaning of Penal Code section 12022, subdivision (b). (See e.g., People v. Montalvo (1981) 117 Cal.App.3d 790, 797 [173 Cal.Rptr. 51].) Accordingly, we agree with the Attorney General’s argument (to which Schaefer has not responded) that Schaefer’s admission of the Penal Code section 12022.5 enhancements necessarily included his admitting a Penal Code section 12022, subdivision (b) enhancement as to each offense. We therefore strike the Penal Code section 12022.5 enhancements making each such enhancement a violation of Penal Code section 12022, subdivision (b).

*952 Disposition

The judgment of convictions is affirmed. Each Penal Code section 12022.5 enhancement is modified to a violation of Penal Code section 12022, subdivision (b). The superior court and the Department of Corrections are directed to change the abstract of judgment and other pertinent records to reflect this reduction to Schaefer’s sentence.

Benke, J., and Froehlich, J., concurred.

Appellant’s petition for review by the Supreme Court was denied December 16, 1993.

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Opinion

WIENER, Acting P. J.

Defendant Ferdinand Gustave Schaefer appeals from the judgment entered on his negotiated guilty plea to six counts of robbery and his admission that the Penal Code section 12022.5, subdivision (a) enhancement as to each count and the three Penal Code section 667, subdivision (a) prior felony convictions were true. Schaefer’s sole contention is that he is similarly situated to the defendant in People v. Vasquez (1992) 7 Cal.App.4th 763 [9 Cal.Rptr.2d 255], who obtained a reversal of true findings on firearm enhancements because of the legislative decision to remove pellet guns from the statutory definition of “firearm.” (Id. at pp. 766-768.) We partially agree. Schaefer’s use of a pellet gun during his commission of each of the charged offenses entitles him to the benefit of Vasquez. However, Vasquez does not eliminate the law holding a pellet gun to be a deadly or dangerous weapon within the meaning of Penal Code section 12022, subdivision (b). (See e.g., People v. Montalvo (1981) 117 Cal.App.3d 790, 797 [173 Cal.Rptr. 51].) Accordingly, we agree with the Attorney General’s argument (to which Schaefer has not responded) that Schaefer’s admission of the Penal Code section 12022.5 enhancements necessarily included his admitting a Penal Code section 12022, subdivision (b) enhancement as to each offense. We therefore strike the Penal Code section 12022.5 enhancements making each such enhancement a violation of Penal Code section 12022, subdivision (b).

*952 Disposition

The judgment of convictions is affirmed. Each Penal Code section 12022.5 enhancement is modified to a violation of Penal Code section 12022, subdivision (b). The superior court and the Department of Corrections are directed to change the abstract of judgment and other pertinent records to reflect this reduction to Schaefer’s sentence.

Benke, J., and Froehlich, J., concurred.

Appellant’s petition for review by the Supreme Court was denied December 16, 1993.

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Bluebook (online)

18 Cal. App. 4th 950, 22 Cal. Rptr. 2d 536, 93 Cal. Daily Op. Serv. 6833, 93 Daily Journal DAR 11664, 1993 Cal. App. LEXIS 926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-schaefer-calctapp-1993.

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