People v. Mustafaa

California Court of Appeal Feb 23, 1994 No. D018683Published

Before: Froehlich

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Holding. A trial court may not impose a concurrent term for an underlying felony conviction while simultaneously imposing a consecutive term for a firearm-use enhancement attached to that same conviction. Such a sentence is unauthorized by law and requires remand for resentencing, provided the aggregate sentence does not exceed the original term.

Issues

Whether a trial court may impose a concurrent term for a felony conviction and a consecutive term for its associated firearm-use enhancement.
Whether a defendant waives the right to challenge an unauthorized sentence by failing to object at the trial level.
Whether the prohibition against double jeopardy limits the sentence imposed upon remand for an unauthorized sentencing structure.

Disposition. remanded

Quotations verified verbatim against the opinion

“In separating the felony and its attendant enhancement by imposing a concurrent term for the felony conviction and a consecutive term for the enhancement the court fashioned Mustafaa’s sentence in an unauthorized manner”

“Under the sentencing scheme an enhancement may not be imposed as a subordinate term on its own.”

“On remand the court may not impose a total sentence more severe than the sentence originally imposed.”

[1309]

Opinion

counts of robbery (Pen. Code,

§ 211) while personally armed with a firearm (§ 12022.5, subd. (a)) and admitted that he had been three times in possession of a firearm while a convicted ex-felon (§ 12021.1, subd. (a)). He also admitted suffering prior felony convictions of rape while armed with a firearm (§§ 261, 12022, subd. (a), 667.5, subd. (a)), robbery (§§ 211, 667.5, subd. (b)) and unlawful taking of a vehicle .(Veh. Code, § 10851, subd. (a), § 667.5, subd. (b)). At the time of his plea Mustafaa stated he understood that his maximum penalty could be 25 years in prison and a $10,000 fine. The court sentenced him to a total term of 17 years, 4 months. Mustafaa appeals, claiming sentencing error.

Factual and Procedural Background

About 4 a.m. on August 31, 1992, Mustafaa, displaying a gun, robbed a 7-Eleven store on La Jolla Boulevard.

At 7 p.m. on September 5, 1992, Mustafaa entered the Hillcrest Furniture Store, asked salesman Sau Vo about financing, then pulled out a gun and asked for money. Vo gave Mustafaa about $300 from the store, some of his own money and his credit cards. When Vo said he had no more money, Mustafaa yelled at him, then Vo ran and Mustafaa fired a shot.

At 6 a.m. on September 6, 1992, Mustafaa robbed the clerk at Phil’s Chevron Foodmart, then fled, leaving his wallet behind. Mustafaa was arrested later the same day in possession of a handgun.

Discussion

Mustafaa asserts the trial court erred in imposing consecutive terms for the gun-use enhancements in counts I and V, while imposing concurrent terms for the robbery convictions in the same counts. He is correct.

The sentencing court selected as the principal term the eight-year term consisting of the three-year midterm for the robbery conviction in count III plus the five-year upper term personal gun-use enhancement attached to that count. The court then considered the terms it had imposed for the convictions in counts I and V and determined to impose the terms for these robbery convictions concurrently, but to impose the terms for the corresponding personal gun-use enhancements attached to those counts consecutively. This was error.

People v. Mustafaa

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