Waldecker

Defendant Carl Waldecker appeals from a judgment of conviction of first degree burglary (Pen. Code, § 459) and attempted robbery (Pen. Code, § 459) following a trial by jury. We first hold that the preliminary hearing testimony of the victim was properly admitted at trial. Based upon the Supreme Court’s recent decision in People v. Collins (1986) 42 Cal.3d 378 [ 228 Cal.Rptr. 899 , 722 P.2d 173 ], we next hold that the judgment must be reversed and the matter must be remanded for further proceedings because of Castro error. Finally, we hold that defendant’s sentence was improperly enhanced pursuant to Penal Code section 667.5.

I. The Facts and Procedure

The 71-year-old victim, Anthony Hampton, lived in the same apartment complex as defendant’s mother. It was common knowledge in the complex that Hampton received checks from the Veterans Administration and from *1154 the Social Security Administration on the first and third days of each month, that he routinely cashed the checks, and that he kept the funds in his wallet.

At the time the crimes were committed, Hampton had known defendant for years. At approximately 9 p.m. on August 8, 1982, several hours after Hampton…

[Opinion certified for partial publication. [*] ]

OPINION

SABRAW, J.

Defendant Carl Waldecker appeals from a judgment of conviction of first degree burglary (Pen. Code, § 459) and attempted robbery (Pen. Code, § 459) following a trial by jury. We first hold that the preliminary hearing testimony of the victim was properly admitted at trial. Based upon the Supreme Court's recent decision in People v. Collins (1986) 42 Cal.3d 378 [ 228 Cal. Rptr. 899 , 722 P.2d 173 ], we next hold that the judgment must be reversed and the matter must be remanded for further proceedings because of Castro error. Finally, we hold that defendant's sentence was improperly enhanced pursuant to Penal Code section 667.5.

The 71-year-old victim, Anthony Hampton, lived in the same apartment complex as defendant's mother. It was common knowledge in the complex that Hampton received checks from the Veterans Administration and from the Social Security Administration on the first and third days of each month, that he routinely cashed the checks, and that he kept the funds in his wallet.

At the time the crimes were committed, Hampton had known defendant for years. At approximately 9 p.m. on. August 8, 1982,…

I concur in the judgment and in all of the reasoning of the lead opinion except that which classifies the crime of escape as defined in Penal Code section 4532, subdivision (b) as a crime whose least adjudicated elements involve moral turpitude. I see no need to create a conflict with the well-reasoned unanimous decision of People v. Rodgers (1987) 194 Cal.App.3d 1349 , 1353-1354 [ 240 Cal.Rptr. 258 ].

A petition for a rehearing was denied November 25, 1987. Poché, J., was or the opinion that the petition should be granted. Appellant’s petition for review by the Supreme Court was denied January 21, 1988.