In re Carson

Opinion

ELKINGTON, J. Gerald David Carson was convicted under the Indeterminate Sentence Law of first degree robbery, and is presently a state prison inmate under a sentence imposed for that crime. Complaining that the Community Release Board had fixed his sentence contrary to the state’s new determinate sentence law (Pen. Code, § 1170.2, subd. (a)), he petitions this court for a writ of habeas corpus.

In the perpetration of the subject robbery the record establishes that Carson was not, and an accomplice was, personally armed with a deadly or dangerous weapon. It is also observed that the judgment of conviction under which he is presently serving a sentence recites: “prior felony conviction . . . charged and proved or admitted . . . Mar. 29, 1961 Superior Court County of Sacramento Robbery First Degree Vio. Sec 211 P.C. State Prison [¿v'c].”

[126]Under the above-noted statute (Pen. Code, § 1170.2, subd. (a)) the board had enhanced Carson’s sentence by one year for “being armed with a deadly or dangerous weapon,” and one year because of a prior felony (first degree robbery) conviction for which he served a prison term.

We consider first Carson’s contention that the enhancement for “being armed” was unlawfully imposed. In respect of it he says, “I have based my argument and stated my contention from the California Supreme Court holding in In re Lawler (Jan. 79) 23 Cal.3d 190 at page 195.”

Section 1170.2, subdivision (a), provides that a prison inmate such as Carson who was sentenced under the old Indeterminate Sentence Law, may have the middle term for his offense “increased by any enhancements justified by matters found to be true and which were imposed by the court at the time of sentencing .... Such matters include: being armed with a deadly or dangerous weapon as specified in [Pen. Code] Section 211a, 460, 3024, or 12022 prior to July 1, 1977, which may result in a one-year enhancement pursuant to the provisions of [Pen. Code] Section 12022;. . .”

Carson insists that for application of Penal Code section 1170.2, subdivision (a)’s, “being armed” enhancement provision he must himself have personally been so armed.

In re Lawler, 23 Cal.3d 190 [151 Cal.Rptr. 833, 588 P.2d 1257], is of no aid to Carson upon his instant contention. That case concerned a prison inmate found by the court to have been personally armed with a deadly or dangerous weapon in the perpetration of the robbery of which he was convicted. The court held that in his case the enhancement provisions of Penal Code section 1170.2, subdivision (a), applied. But the court then stated (p. 195): “Because of our disposition of this matter, and the absence of any allegation or proof by petitioner that he did not personally use a dangerous weapon or that he was not armed with a firearm at the time of the commission of the offense, we need not decide his further claim that under section 1170.2, subdivision (a), persons convicted of first degree robbery on the basis of an armed finding within the meaning of former section 211, should not have the one-year enhancement added to their DSL terms unless they personally used a dangerous weapon or were armed with a firearm within the meaning of section 12022 as amended and operative July 1, 1977.” (Italics added.)