People v. Wright

Opinion

PARAS, J.

A jury convicted defendant of seven counts of robbery and found that he used a dangerous or deadly weapon (knife) during the commission of each. (Pen. Code, §§ 211, 12022, subd. (b).)

1

He appeals from the judgment.

Between July 16, 1977, and August 3, 1977, defendant committed seven gasoline service station robberies at knifepoint in Sacramento County.

The sentence imposed under count one was designated the principal term (see Pen. Code, §§ 1170, subd. (b), and 1170.1, subds. (a), (c); Cal. Rules of Court, rule 405(b) and rule 439(a)), consisting of a base term of three years (the middle term of Pen. Code, § 213), and a one-year enhancement for use of the knife (Pen. Code, § 12022, subd. (b)). As to each of the remaining six counts, sentence was imposed consecutive to the principal term and to eveiy other term. A middle term of three years was imposed for each of these, but two of such years were ordered stayed, presumably to meet the statutory limitation that “[t]he subordinate term

[813]

for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements when the consecutive offense is not listed in subdivision (c) of [Pen. Code] Section 667.5 . . .” (Pen. Code, § 1170.1, subd. (a)). The trial court also limited the aggregate of the subordinate terms to five years, presumably to meet the further statutory restriction that “[i]n no case shall the total of subordinate terms for consecutive offenses not listed in subdivision (c) of Section 667.5 exceed five years” (Pen. Code § 1170.1, subd. (a); see Cal. Rules of Court, rules 447, 449). The total unstayed term thus imposed by the judgment is nine years.

There is yet another statutory limitation on the total prison time which can be imposed for multiple crimes. It is contained in Penal Code section 1170.1, subdivision (f), and defendant claims its benefit. By its own terms however it is inapplicable here. It reads as follows: “The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of Section 1170