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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Larry Wayne YOUNG, Defendant and Appellant.

Cr. 11120.

Decided: November 21, 1979

Appellate Defenders, Inc. and Michael Meaney and Stephen J. Perrello, Jr., San Diego, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., and Daniel J. Kremer, Jay M. Bloom and Alan S. Meth, Deputy Attys. Gen., for plaintiff and respondent.

After a jury trial, Larry Wayne Young was convicted of two counts of robbery (Pen. Code, s 211) and one count of assault with a deadly weapon (Pen. Code, s 245, subd. (a)). Allegations were made and found true as to use of a firearm and inflicting great bodily harm on the first count applicable to victim Saloma Phillips and as to use of a firearm in the second count applicable to victim Jesse Phillips, and as to use of a firearm in the third count (Pen. Code, ss 12022.5, 12022.7).

On June 30, 1978, Saloma and Jesse Phillips were engaged in selling doughnuts and other bakery goods from their van on a neighborhood route in the vicinity of Ozark Street in San Diego. Mr. Phillips drove and Mrs. Phillips did the selling from the side of the van. At about noon, Young approached the van and made a comment to them. He stepped out of Mr. Phillips' sight, then returned a few minutes later and drew a gun. He said he wanted their money and pointed the gun at Mr. Phillips. He then hit Mr. Phillips over the head two times with the butt of the gun and Mr. Phillips handed him $12 from his wallet.

After taking the money, Young demanded the cash Mrs. Phillips had. Sitting in a chair in the back of the van, she took the money in hand and began to stand up by pulling herself up holding onto a ledge above the doors. She bumped a hammer on the ledge making some noise. Young grabbed the hammer and hit Mr. Phillips across the legs with it. As Mrs. Phillips stood there with the money, Young announced he would shoot her, then shot her in the leg for no apparent reason. He grabbed about $37 from her and fled.

At a photographic lineup about five weeks later, Mr. Phillips identified Young, and Mrs. Phillips narrowed her identification of the assailant down to two photographs. At a live lineup about a month later, they both identified Young.

In addition to this identification, Mr. Phillips was able to describe tatoos on his assailant's left hand and the police had taken Young's fingerprints from the right passenger door of Phillips' truck.

In sentencing, the court imposed the upper term, then four years (s 213, Stats. 1977, ch. 165), for the charge of robbery of Mrs. Phillips (count one) and enhanced the sentence by two years for use of a gun (Pen. Code, s 12022.5) and three years for inflicting great bodily harm (Pen. Code, s 12022.7). For the robbery of Mr. Phillips (count two), the judge imposed a consecutive sentence, computing the subordinate term by taking the middle term of three years, enhancing it by two years for use of a gun (Pen. Code, s 12022.5), then dividing the total by one-third the time pursuant to Penal Code section 1170.1, subdivision (a).1 The sentence on the assault conviction was stayed. Credit for time served was then authorized.

Focusing on the subordinate term for the consecutive offense, Young contends the trial judge erred by sentencing him twice for violation of section 12022.5 where the gun was used on a single occasion.2 He relies on In re Culbreth, 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23, and People v. Miller, 18 Cal.3d 873, 135 Cal.Rptr. 654, 558 P.2d 552. As we shall discuss, his reliance on these decisions is misplaced, however, inasmuch as they predate the enactment of the determinate sentencing law (Stats. 1976, ch. 1139, s 305; Stats. 1977, ch. 165, s 92) and apply a different body of law.

Section 1170.1, subdivision (a), provides:

“(a) Except as provided in subdivision (b) and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all such convictions shall be the sum of the principal term, the subordinate term and any additional term imposed pursuant to Section 667.5. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any enhancements imposed pursuant to Section 12022, 12022.5, 12022.6, or 12022.7. The subordinate term 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 Section 667.5, but Shall include one-third of any enhancement imposed pursuant to Section 12022, 12022.5 or 12022.7 When the consecutive offense is listed in subdivision (c) of Section 667.5. In no case shall the total of subordinate terms for consecutive offenses not listed in subdivision (c) of Section 667.5 exceed five years.” (Italics added.)

It was thus proper to enhance the principal term by two years for use of a firearm and by three years for inflicting great bodily injury on Mrs. Phillips. Further, since the robbery with use of a firearm charged and proved as to Mr. Phillips is one of the offenses listed in subdivision (c) of section 667.5,3 it was within the express directive of the third sentence of section 1170.1, subdivision (a), to enhance the subordinate robbery term for use of a firearm. Only if principles of multiple punishment apply is this sentencing improper. We hold those principles do not apply under the determinate sentence law.

Section 654 operates to “limit punishment for multiple Convictions arising out of either an act or omission or of a course of conduct deemed to be indivisible in time, in those instances wherein the accused entertained a principal objective to which other objectives, if any, were merely incidental” (italics added; People v. Beamon, 8 Cal.3d 625, 639, 105 Cal.Rptr. 681, 690, 504 P.2d 905, 914).4 A finding of firearm use under section 12022.5 does not constitute a “conviction” but merely an additional punishment for an offense in which the firearm is used (In re Culbreth, supra, 17 Cal.3d 330, 333, 130 Cal.Rptr. 719, 551 P.2d 23). Nevertheless, in cases of multiple offenses against different victims, it was held under former section 12022.5 if all the charged offenses are incident to one objective and effectively comprise an indivisible transaction, then the section may be invoked only once and not in accordance with the number of victims (In re Culbreth, supra, at pp. 333-334, 130 Cal.Rptr. 719, 551 P.2d 23). Culbreth involved the rapid-fire rifle killings of three victims with two resultant convictions of second degree murder and one of voluntary manslaughter. The separate terms of imprisonment for each of the three convictions as to the separate victims of the violence properly went unquestioned for purposes of section 654 (see People v. Miller, supra, 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552).5 The Culbreth court, however, permitted only one application of the additional five-year punishment then provided by former section 12022.5, looking to the fact there was only one “occasion” of firearm use. Though not holding section 654 applicable to the question of multiple firearm use enhancement of sentence, the Supreme Court applied section 654 principles, concluding “(t)here was but one occasion, one intent, one objective, one indivisible transaction. Therefore, section 12022.5 may be applied only once.” (In re Culbreth, supra, at p. 335, 130 Cal.Rptr. at p. 722, 551 P.2d at p. 26.)

The series of cases beginning with People v. Johnson, 38 Cal.App.3d 1, 112 Cal.Rptr. 834, and including In re Culbreth, supra, 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23, and People v. Miller, supra, 18 Cal.3d 873, 135 Cal.Rptr. 654, 558 P.2d 552, were predicated on a statute no longer in effect. In Johnson, the court said of former section 12022.5's purpose:

“A special deterrence against firearm use is its objective. The legislative theory is deterrence, whose power augments with each successive occasion. If the threat of a minimum five-year extension has failed to deter the first occasion of gun use, a second occasion may be deterred by doubling the threat, a third by tripling it. Thus the statute envisions a single application of deterrent force for each occasion, hopefully to deter gun use on a future occasion. Where, as here, a single judgment imposes sentences for several crimes committed upon a single occasion, only one finding under section 12022.5 is permissible.” (People v. Johnson, supra, 38 Cal.App.3d 1, 12, 112 Cal.Rptr. 834, 840-841; italics added; quoted with approval in In re Culbreth, supra, 17 Cal.3d 330, at p. 334, 130 Cal.Rptr. 719, 551 P.2d 23.)

Section 12022.5 no longer provides for sharply increased penalties for separate successive convictions where a firearm use was charged and proved, i. e., it no longer imposes additional punishment of five years for the first offense, ten for the second, fifteen for the third, etc. No longer does the deterrent power of the section augment itself with each successive occasion. The touchstone for concluding the statute's objective was to deter gun use on a “future occasion” thus is no longer in the law. The present section 12022.5 uniformly punishes all firearm use with an additional term of two years to be served consecutively. This uniform penalty structure to be applied in every otherwise appropriate case is consistent with the legislative objective underlying determinate sentencing, i. e., “that the purposes of imprisonment for crime is punishment,” which purpose is served by imposing terms “proportionate to the seriousness of the offense” (s 1170, subd. (a)(1)).

Whereas under former section 12022.5 a single finding of firearm use as part of an indivisible course of conduct involving multiple victims was sufficient to evoke the full deterrent force of section 12022.5, a single finding under the present statute where there are multiple punishable offenses in which a firearm was used does not accurately reflect the proportionate gravity of the offenses and thus does not serve the policy underlying determinate sentencing (see People v. Perez, 23 Cal.3d 545, 550-554, 153 Cal.Rptr. 40, 591 P.2d 63, re similar general purpose of s 654). Before, the “ use” finding resulted in five additional years subject to indeterminate sentencing rules. Now the result is eight months additional time on the consecutive term.

Accordingly, the Legislature has provided in clear and unambiguous language that enhancements “Shall ” be applied in certain cases of consecutive sentencing “for Each consecutive offense” (s 1170.1, subd. (a); italics added). Moreover, there is nothing in section 1170.1 or in sections 654 and 12022.5 to suggest enhancements are not to be applied to each conviction arising out of a single course of conduct in which a firearm is used, particularly where, as here, there are multiple victims of violence. Absent a clear expression of legislative intent to the contrary, we should apply this statute so as to implement the objective of the overall scheme of determinate sentencing of which it is a part to evenhandedly punish convicted persons in proportion to the seriousness of the offense.6 It follows that the trial court did not err in enhancing the subordinate robbery term.

Here, the separate acts of violence in using the gun as against the wife differ in seriousness from, and occurred independently of, those against the husband. No doubt the pistol-whipping of Mr. Phillips was to instill fear and obtain compliance with Young's demands. The shooting of Mrs. Phillips cannot be similarly characterized as she was in the process of handing over the money when Young pulled the trigger. The offense is not like one where the person waves a gun at a crowd threatening to shoot if they refuse his demands. Here, the acts of violence with respect to each of the victims are as distinguishable as the victims themselves.7 The enhancement on the subordinate consecutive term was proper.

Young next contends the court used the same fact to aggravate the crime as it did to enhance. That argument is without merit. The judge stated at the time of sentencing:

“I will determine that count one, the robbery on the wife is the and I will set that as the base term. And then I am required, and that's because it has the 12022.5 and the 12022.7 allegations, I am required to determine which one of the terms I will use, 2, 3 or 4. There are no circumstances in mitigation that I find to be of any value. The circumstances in aggravation are these:

“The circumstances of the crime disclosed a high degree of cruelty, viciousness and callousness. The victims were vulnerable. The fact that he struck the husband with the gun, which is not going to be used anywhere else, I am going to use as an aggravation of count one, the robbery of the wife. You have to be so very, very careful that you don't use something twice.

“I find that it was premeditated.

“The defendant was on probation when he committed the instant offense.

“For those reasons I will aggravate, I think; and, therefore, I will set the base term as four years on count one.”

The use of the pistol to inflict bodily injury to Mr. Phillips, not necessary to effect the robbery, is an act separate from the use of a gun as a threat to subdue him. The high degree of cruelty, viciousness and callousness were thus evidenced. Under these circumstances, the use of these acts does not constitute the use of the same facts for both aggravation and enhancement. Looking at the record as a whole, as we must, we cannot say the judge erred by considering the acts of violence to other persons at the time of the crime which the spouse/victim was made to suffer through. Mrs. Phillips' mental anguish in watching her husband being subjected to a brutal attack indicates a high degree of cruelty, viciousness or callousness (Cal. Rules of Court, rule 421(a)(1)).

In any event, if we assume the judge's gratuitous reference created error, it was not reasonably probable a different base term would have been selected in light of the multitude of aggravating factors had the remark not been uttered (People v. Dozier, 90 Cal.App.3d 174, 179, 153 Cal.Rptr. 53).

Finally, Young argues he was denied a fair trial when the trial court refused to grant a continuance or a new trial in order to locate a material witness. Defense had subpoenaed Veloma Flournoy who had indicated she saw friends of Young who had tatoos similar to the one Young had. Ms. Flournoy had indicated she would not appear. Counsel for Young knew of her reluctance to present herself since there was an outstanding warrant for her arrest. She had been convicted of assault with a deadly weapon and failed to appear for sentencing. The court's bailiff had been sent to find her and reported she had moved and her mother told him Ms. Flournoy would not appear knowing she would be arrested on the other offense. As of one month after trial, Ms. Flournoy had still not appeared.

Even in hindsight, a reasonable continuance would not have been fruitful. The trial court has broad discretion in ruling on the request for a continuance, and a denial will not be disturbed on appeal in the absence of clear abuse of that discretion (People v. Duck Wong, 18 Cal.3d 178, 189, 133 Cal.Rptr. 511, 555 P.2d 297).

Young seeks good time credit for the time he spent in presentence custody in jail, an issue presently before the Supreme Court in People v. Sage (Crim. 20997), People v. Brown (Crim. 20998), In re Davis (Crim. 20999), People v. Galloway (Crim. 21182) and In re Ferrier (Crim. 21183). When these cases are decided, the Department of Corrections should credit Young with any additional time to which he may become entitled.

The judgment is ordered modified to include an order to the Department of Corrections to credit defendant with all time to which he may be entitled under the applicable provisions of the Penal Code as determined by our Supreme Court as soon as reasonably can be accomplished following the Supreme Court decision(s) in People v. Sage, People v. Brown, In re Davis, People v. Galloway and/or In re Ferrier. As modified, the judgment is affirmed.


1.  All section references are to the Penal Code.

2.  Section 12022.5 provides: “Any person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of two years, unless use of a firearm is an element of the offense of which he was convicted. P The additional term provided by this section may be imposed in cases of assault with a deadly weapon under Section 245.”

3.  Section 667.5, subdivision (c), states:“(c) For the purpose of this section, ‘violent felony’ shall mean any of the following:“(1) Murder or voluntary manslaughter.“(2) Mayhem.“(3) Rape as defined in subdivisions (2) and (3) of Section 261.“(4) Sodomy by force, violence, duress, menace, or threat of great bodily harm.“(5) Oral copulation by force, violence, duress, menace, or threat of great bodily harm.“(6) Lewd acts on a child under 14 as defined in Section 288.“(7) Any felony punishable by death or imprisonment in the state prison for life.“(8) Any other felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or Any felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5.“The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society's condemnation for such extraordinary crimes of violence against the person.” (Italics added.)

4.  Section 654 provides, in part: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one . . . .”

5.  Under Section 654, even when it is determined “that defendant entertained but a single principal objective during an indivisible course of conduct, he may nevertheless be punished for multiple convictions if during the course of that conduct he committed crimes of violence against different victims. (Citations.) As the purpose of section 654 ‘is to insure that defendant's punishment will be commensurate with his criminal liability,’ when he ‘commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons,’ his greater culpability precludes application of section 654. (Citation.)” (People v. Miller, supra, 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 662, 558 P.2d 552, 560.)

6.  This conclusion, too, accommodates the special concern the Legislature has shown for crimes involving firearm use (see Pen. Code, s 1203.06 and outline of legislative history in connection with enactment of that section in People v. Tanner, 24 Cal.3d 514, 519-520, 156 Cal.Rptr. 450, 596 P.2d 328). That special concern is evidenced not only by portions of section 1170.1 we have discussed but also by its provisions permitting longer than otherwise permissible subordinate terms for consecutive offenses where there is firearm use. Subdivision (a) of the section concludes with the language “(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,” thus allowing for longer consecutive terms where a “violent felony,” including one involving firearm use as in section 667.5, subdivision (c)(8), is involved. Subdivision (f) carves out a similar, lengthening exception as follows:“(f) 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 unless the defendant stands convicted of a felony described in subdivision (c) of Section 667.5, or a consecutive sentence is being imposed pursuant to subdivision (b) of this section, or an enhancement is imposed pursuant to Section 12022, 12022.5, 12022.6 or 12022.7.”

7.  Counsel for Young argues the enhancement for gun use in the instance of count two (Mr. Phillips) should be stricken since there was no great bodily injury within the meaning of section 667.5, subdivision (c)(8). He fails to read the entire section making the enhancement proper also when “the defendant uses a firearm which use has been charged and proved as provided in section 12022.5,” the situation here.

COLOGNE, Associate Justice.

GERALD BROWN, P. J., and WORK (Superior Court Judge sitting under assignment by the Chairperson of the Judicial Council), J., concur.

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