## Facts

- Michael S. Smith and an accomplice, both absent without leave from the Marine Corps, sought money after their car broke down.
- They followed a perceived easy target to an apartment building and decided to break into an apartment.
- Inside, they found two women asleep in a bedroom; Smith and the accomplice climbed onto the bed and demanded money.
- A knife was used during the crimes; one victim’s hand was cut, and threats created a risk of serious injury.
- The victims gave the assailants $18 from their purses.
- The assailants continued sexual harassment and abuse for approximately four hours, including conduct against a third woman who arrived later.
- Smith admitted he increased the victims’ inability to flee by forcing them to remove their underpants so they would not run out of the apartment.

## Issues

1. Whether the aggravating-factor phrase “particularly vulnerable” in California Rules of Court, rule 421(a)(3) is unconstitutionally vague as applied in sentencing.
2. Whether the record supported the trial court’s finding that the victims were “particularly vulnerable,” justifying the aggravated upper term.

## Decision

- The Court of Appeal affirmed the judgment and sentence.
- The court held that “particularly vulnerable” in rule 421(a)(3) is not unconstitutionally vague.
- The court held the victims’ particular vulnerability was supported by the circumstances, including being asleep in their home, being trapped and threatened with knives, and Smith’s deliberate acts to prevent escape.
- The court left undisturbed the trial court’s imposition of the upper term on one robbery count, the one-year knife-use enhancement, and the concurrent term on the second robbery count.

## Legal Principles

- A sentencing court may rely on California Rules of Court aggravating factors, including that “[t]he victim was particularly vulnerable,” to select an upper term.
- “Particularly vulnerable” is sufficiently definite for sentencing purposes when applied according to its ordinary meaning to concrete facts showing unusual susceptibility compared to typical victims of the same offense.
- Victim vulnerability may be established by circumstances such as isolation, being attacked while asleep, confinement in a private residence, weapon threats, prolonged control by assailants, and offender actions that materially reduce the victim’s ability to resist or escape.

## Conclusion

The Court of Appeal upheld the upper-term robbery sentence, concluding that the guideline term “particularly vulnerable” is constitutionally adequate for sentencing and that the victims’ situation—attacked while asleep in their apartment, threatened with knives, controlled for hours, and intentionally prevented from fleeing—supported the aggravating finding.


People v. Smith, 94 Cal. App. 3d 433 (Cal. Ct. App. 1979)