People v. Cree

Opinion

WIENER, J.

Duane Cree was charged by information with murder (Pen. Code, § 187),

1

robbery (§ 211), assault with a deadly weapon, a knife (§ 245, subd. (a)), and burglary (§ 459). All offenses were alleged to have occurred on August 13, 1979. It was further alleged Cree personally used a firearm, a rifle, in the commission of each offense (§ 12022.5). After a mistrial, an amended information was filed, changing from knife to rifle the assault with a deadly weapon charge and adding the same offense upon an additional victim. Pursuant to a plea bargain, Cree pleaded guilty to voluntary manslaughter (§ 192, subd. 1), robbery, and both assaults, while admitting the use allegation accompanying the manslaughter and one of the assaults. The remaining charge and use allegations were then dismissed. The bargain provided for a maximum possible sentence of eleven years, eight months, which the district attorney would recommend and to which Cree was ultimately sentenced, including eight months attributable to the use enhancement to the assault with a deadly weapon.

[1016]

Cree appeals, contending the imposition of the additional eight-month consecutive sentence for firearm use during the commission of the assault with a deadly weapon was error and must be stricken. (See §§ 667.5, subd. (c), and 1170.1, subd. (a);

People

v.

Harvey

(1979) 25 Cal.3d 754, 761 [159 Cal.Rptr. 696, 602 P.2d 396];

People

v.

Savala

(1981) 116 Cal.App.3d 41, 54-61 [171 Cal.Rptr. 882];

People

v.

Childs

(1980) 112 Cal.App.3d 374, 388 [169 Cal.Rptr. 183];