People v. Dozier

California Court of Appeal Feb 16, 1979 No. Crim. 8821Published

Before: Staniforth

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Holding. The court held that the trial court properly applied a great bodily injury enhancement to the robbery conviction and that any potential error regarding the dual use of facts for sentencing was harmless given the presence of multiple aggravating factors.

Issues

Whether a great bodily injury enhancement under Penal Code section 12022.7 applies when the injury occurs during a robbery that also involves a separate assault.
Whether the trial court improperly used the same facts to both enhance the sentence and select the upper term for the robbery conviction.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We conclude the robbery term was properly enhanced under section 12022.7.”

“It is not reasonably probable a different base term would have been selected—in light of the multitude of aggravating factors—had the remark not been uttered.”

“The trial judge, in imposing the great bodily injury enhancement, said he had not used it as a factor in aggravation in selecting the upper base term.”

Opinion

STANIFORTH, J.

A juiy convicted defendant Donnie Dozier of kidnaping (Pen. Code, § 209, subd. (b)),

count one, of robbeiy (§ 211), count two, assault (§ 245, subd. (a)), count three, of sodomy (§ 286, subd. (c)), count four, and of forcible oral copulation (§ 288a, subd. (c)), count five. Further, the jury found Dozier was armed with a dangerous or deadly weapon within the meaning of section 12022, subdivision (b), during the commission of the kidnaping, the robbery, the sodomy, and the forcible oral copulation. Dozier was also convicted with inflicting great bodily injury upon the victim within the meaning of section 12022.7 during the course of the kidnaping, the robbery, the sodomy, and the forcible oral copulation.

Dozier admitted before trial commenced four charged prior felony convictions.

Upon sentencing, the trial court chose the robbery offense, count two, for the principal term and set its base at the upper term of four years. The court added to this base term a one-year enhancement for the section 12022, subdivision (b), violation, plus a three-year enhancement for infliction of great bodily injuiy on the robbeiy victim (§ 12022.7). The sodomy offense, count four, was designated as the subordinate term and was ordered to be served consecutive to the principal term and its enhancements. Also added to Dozier’s principal and subordinate terms was an additional year for each of two prior convictions under section 667.5, subdivision (b). All other terms were ordered stayed.

[177]

On appeal, Dozier (1) objects to the three-year enhancement under section 12022.7; although he concedes the victim sustained great bodily injury, he argues it did not occur “in the commission” of the robbery but in the commission of a separate assault to which section 12022.7 does not apply; and (2) he charges that the sentencing court improperly made dual use of facts for aggravation as well as for enhancement when (a) the court selected the upper term on the robbery and imposed a three-year enhancement because of great bodily injury and (b) the court also considered the weapon finding as a basis for imposition of both the upper term for robbeiy as well as for the enhancement.

People v. Dozier

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STANIFORTH, J.

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