People v. Smith

California Court of Appeal Feb 6, 1980 No. Crim. 4399Published

Before: Brown (g.A.)

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Holding. The trial court improperly used the same fact of firearm use both to impose an upper term sentence and as a basis for a firearm use enhancement, necessitating a remand for resentencing.

Issues

Whether a trial court may use the same fact of firearm use to both impose an upper term and a firearm use enhancement under Penal Code section 12022.5.
Whether the trial court's reliance on the cocking of a firearm as an aggravating factor constituted an improper dual use of facts.

Disposition. Reversed and remanded for resentencing.

Quotations verified verbatim against the opinion

“we hold that the trial court did improperly use the fact of appellant’s firearm use both to impose the upper term and as a basis for a section 12022.5 enhancement.”

“The prosecution may not rely on the totality of evidence which transcended mere display in order to establish a firearm use at the guilt phase, only to later fragmentize the totality of the sentencing phase.”

Opinion

BROWN (G. A.), P. J.

Appellant was convicted after jury trial of robbery (Pen. Code,

§ 211) with the use of a firearm (§ 12022.5). The trial court sentenced appellant to a four-year upper base prison term with a two-year firearm use enhancement. On appeal from the judgment, appellant’s sole contention is that the trial court used the same fact as a basis for the upper term and for a firearm use enhancement.

[966]

At the sentencing hearing, the trial court stated the following facts and reasons for the sentence: “The Court: The planning of the crime indicates that it was obviously premeditated. As I indicated heretofore Mr. Gong lost a large sum of money, fifteen thousand three hundred dollars. Defendant was on probation in Municipal Court at the time the crime was committed. The fact that he cocked a pistol is a circumstance in aggravation to this department. So the aggravated term will be selected by the court, obviously cannot be granted probation for the seriousness of the crime. The aggravated term is picked by reason of what the court has stated in the record of four years. It’s enhanced by the use of the weapon within the meaning of Penal Code Section 12022.5. Two additional years. Which means a six year total for violation of Section 211 of the Penal Code. Plus the enhancement per Section 12022.5 of two years. He will be sentenced to the Department of Corrections, remanded to the custody of the Sheriff of Kern County to be delivered to the custody of the Director of Corrections at the California Institution for Men at Chino.”

At all times pertinent hereto, section 1170, subdivision (b), provided, in relevant part, that “The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under Section. .. 12022.5.. .. ”

People

Chambers

(1972) 7 Cal. 3d 666 [102 Cal.Rptr. 776, 498 P.2d 1024], the Supreme Court held that where the defendant pointed a gun at his victim and demanded money, he utilized the gun as an aid in completing an essential element of the crime of robbery. Thus, the facts sufficed to support a finding that defendant used a firearm within the meaning of section 12022.5. Obviously, included within the concept of a firearm use is the entire spectrum of conduct between that in

People v. Smith

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BROWN (G. A.), P. J.

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