People v. Lowe

Opinion

THOMPSON, J.

Appellant was charged with the murder of Frank E. Mann (count I), attempted murder of Reginald H. Mann (count II), robbery of Frank E. Mann (count IV), and robbery of Reginald H. Mann (count V). Each count contains an allegation that appellant used a firearm within the meaning of Penal Code section 12022.5. The robbery counts allege the infliction of great bodily injury. At a trial to a jury, eyewitness testimony established that appellant shot Frank and Reginald Mann in the course of robbing them, and that Frank Mann died of his wounds. The jury found'appellant guilty of .the crimes charged and determined the murder to be of the first degree. It found the allegations of use of a firearm and infliction of great bodily injury to be true. The trial judge sentenced appellant to state prison for the term prescribed by law on all counts ordering: “Count IV to run consecutively to Count V. Count II to run consecutively to Counts IV & V. Count I to run consecutively to Counts II, IV & V.” The jury findings of use of a firearm and infliction of great bodily injury are repeated in the judgment.

On this appeal, appellant does not question the proceedings leading to the jury’s verdict but correctly contends that the sentence imposed by the trial court is illegal.

Penal Code section 669, which permits the imposition of consecutive sentences, is subject to the express condition: “[I]f the punishment for any of [the] crimes [where the defendant has been convicted of separate offenses] is expressly prescribed to be life imprisonment, whether with or without possibility of parole, then the terms of imprisonment on the other convictions .. . shall be merged and run concurrently with such life

[795]

term.” The rule of Penal Code section 669 precluding consecutive sentences when one of them is for an express life term is succinctly restated in the Los Angeles Superior Court Criminal Benchbook at page 578. The state prison term for first degree murder is expressly one of life. (Pen. Code, § 190.) Thus the judgment in the case at bench imposing consecutive prison sentences is patently contrary to statute.

Penal Code section 654 provides that “[a]n act or omission which is made punishable in different ways by different provisions of this [Penal] code may be punished under either of such provisions, but in no case can it be punished under more than one . . . .” Section 654, as construed by our Supreme Court, permits the imposition of sentences on separate crimes incident to one objective, but precludes the execution of the multiple sentences in a fashion which permits the defendant to be punished in a manner greater than the punishment provided for the greater of the crimes.