People v. Henry

[91]

Opinion

BRAY, J.

*

Defendant appeals from judgment, after jury verdict, convicting him of first degree robbery (Pen. Code, § 211) and finding that he was armed with a deadly weapon at the time of the commission of the offense.

1

Questions Presented

Defendant’s sole contention is that the imposition of the additional penalty for first degree robbery prescribed by Penal Code section 12022.5, additional to the penalty provided by section 211, constitutes double jeopardy and double punishment.

Record

As defendant does not attack the sufficiency of the evidence to support the finding by the jury that he was guilty of robbing the Kentucky Fried Chicken in Sacramento on December 20, 1969, while armed with a deadly weapon within the meaning of section 12022.5 of the Penal Code, it is unnecessary to detail the evidence.

No Double Jeopardy

Section 211 of the Penal Code defines the offense of robbery. Section 211a prescribes that if the robbery is perpetrated by a person armed with a dangerous or deadly weapon, it is robbery of the first degree. Section 213 provides in pertinent part that first degree robbery is punishable by imprisonment in the state prison for not less than five years, while second degree robbery is punishable by imprisonment therein for not less than one year.

Section 12022,5 provides in pertinent part: “Any person who uses a firearm in the commission ... of a robbery . . . shall, in addition to the punishment prescribed for the crime of which he has been convicted, be punished by imprisonment in the State prison for a period of not less than five years. Such additional period of imprisonment shall commence upon expiration or other termination of the sentence imposed for the crime of which he is convicted and shall not run concurrently with such sentence.

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