People v. Skenandore

California Court of Appeal Dec 2, 1982 No. Crim. 19361Published

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Holding. The court held that while the trial court committed technical error by using the same factor to justify both aggravated terms and consecutive sentences, the error was harmless because a more favorable result on remand was not reasonably probable.

Issues

Whether the trial court erred by using the same facts to support both aggravated terms and consecutive sentences.
Whether a technical sentencing error requires automatic remand or is subject to a harmless error analysis.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is improper to use the same fact as a basis for both aggravation and imposition of consecutive terms.”

“The question to be answered in all these cases is whether on remand a result more favorable to the defendant is reasonably probable.”

“In the instant case, as to each of the appellants, we are satisfied that a more favorable result is highly unlikely.”

Opinion

THE COURT.

Neil Warren Skenandore and Pierre Adair Parent appeal after they were each convicted by a jury of two counts of attempted murder (Pen. Code, §§ 664, 187), three counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)), one count of receiving stolen property (Pen. Code, § 496), and one count of possession of a concealable firearm by an ex-felon (Pen. Code, § 12021). The jury also found true allegations as to each appellant

[924]

that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)), and as to Skenandore only that he personally used a firearm (Pen. Code, § 12022.5). Skenandore also admitted the truth of an allegation that he had served a prior felony term (Pen. Code, § 667.5, subd. (b)).

Appellants originally filed a brief identifying no arguable issues, under

People

Wende

(1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071], which would have required this court to review the entire record to determine whether there were arguable issues (25 Cal.3d at p. 441). However, they later filed a “supplemental opening brief” which did identify and argue a legitimate issue. Accordingly, we treat this as a standard appeal, not subject to the dictates of

Wende.

(Cf.

People

Johnson

(1981) 123 Cal.App.3d 106, 109-112 [176 Cal.Rptr. 390].)

Appellants’ contentions are limited to the propriety of the sentencing proceedings below. We therefore need not describe the underlying facts of the case, which involved a shootout with police at the end of a high-speed automobile chase following a robbery.

Appellants argue that the court erred by using certain facts twice, both as its basis for imposing aggravated or upper terms, and as its basis for imposing consecutive sentences. Respondent concedes that the court technically erred, and we agree. As to Skenandore, the court found as circumstances in aggravation (Cal. Rules of Court [hereinafter cited rule], rule 421) that (1) a crime involved multiple victims, (2) Skenandore had displayed a high degree of cruelty and viciousness and (3) had induced others to participate, taking a leadership role, (4) the crime evidenced planning and professionalism, (5) his pattern of violent conduct indicated a danger to society, (6) his convictions were numerous and of increasing seriousness, and (7) his prior performance on probation or parole was unsatisfactory. The court found no circumstances in mitigation (cf. rule 423) and therefore imposed aggravated sentences (cf. rule 439). The court found as criteria justifying consecutive sentences (cf. rule 425) that there were multiple victims and separate acts of violence.

People v. Skenandore

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THE COURT.

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