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

The PEOPLE, Plaintiff and Respondent, v. James Lee CHEATHAM, Defendant and Appellant.

Cr. 31917.

Decided: July 03, 1978

Mary L. Baca, Long Beach, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Janelle B. Davis, Deputy Attys. Gen., for plaintiff and respondent.

James Lee Cheatham appeals from his conviction for first degree burglary (Pen.Code, s 459).


On the evening of July 15, 1977, Venus Hurst fell asleep in front of the television in the living room of her apartment in a retirement complex. At approximately 5 a. m. on the morning of July 16 Andrew Truesdale, the security guard, apprehended defendant Cheatham outside the building in which Ms. Hurst's apartment is located. Mr. Truesdale had noticed a screen missing from one of the windows along the side of the building, a condition which he did not remember from his previous rounds of the grounds. As he approached to investigate, he discovered a television set on the ground beside the window. He discovered defendant Cheatham crouched in the bushes near the television set and detained him. The defendant was subsequently tried and convicted on charges of burglary.

At the sentencing hearing, the district attorney alleged three prior convictions for enhancement purposes pursuant to Penal Code section 667.5, subdivision (b).1 The defendant admitted the priors after he was advised by the court that these priors might add up to three years to his sentence. The priors in question were: (1) Robbery (s 211) on March 6, 1964; (2) Possession of designated controlled substances for sale (former Health & Saf.Code, s 11500.5, now s 11351) on March 12, 1972; and (3) Involuntary Manslaughter with the use of a firearm (former s 192.2, now s 12022.5) on March 12, 1972. Sentences on the latter two convictions were designated to run concurrently.

The trial court imposed a four-year sentence, which is the upper term for burglary on the basis that there were factors in aggravation. The following factors were stated in the record: (1) The defendant was on parole at the time the crime was committed; and (2) the court observed that the defendant's prior convictions occurred as an adult and the evidence in the probation report indicated his crimes to be of increasing seriousness over time. The court found further, from allegations in the probation report, that the defendant was an occasional user of heroin which increased the likelihood of subsequent criminality.

As enhancements of the sentence, the trial court imposed three additional one-year terms based on the three prior convictions which the defendant admitted. The court thereafter stayed the enhancement term imposed for the Health and Safety Code violation, which had run concurrently with the involuntary manslaughter sentence.2


Defendant Cheatham contends (1) that he was improperly sentenced to the upper term; (2) that the court improperly imposed enhancement terms for prior convictions which the court had already used for aggravation thus making a prohibited dual use of facts; and (3) that the enhancement provisions of the Determinate Sentencing Act (s 1170 et seq.) are unconstitutional because their application constitutes double jeopardy for past crimes.



Defendant Cheatham first contends that the only factors to which the court can look in aggravation of sentence are those factors which relate to the crime itself and not those which bear on the criminal. He argues that since the purpose of the Determinate Sentencing Act (s 1170.3) is to promote uniformity of sentences, any aggravation or mitigation of the sentence should be based on the character and circumstances of the particular crime rather than on the character of the defendant.

However, section 1170, subdivision (b), and rule 421 of the California Rules of Court (hereinafter referred to as rule 421) which implements section 1170.3 make it clear that the concept of aggravation refers not merely to the circumstances of the individual crime but also to facts relating to the defendant. In considering which term should be applied to any particular defendant, the court is admonished to look not only to the record in the case but also to the probation reports, to any further evidence presented by the parties, and to any reports concerning diagnosis and treatment at diagnostic facilities of the Department of Corrections under section 1203.03 (s 1170, subd. (b)). In view of the material which the court is expressly directed by statute to consider, rule 421 which instructs the court to consider various factors relating to the defendant appropriately implements the statute. (See People v. Schmidt (Cal.App.1978) 146 Cal.Rptr. 516.) Moreover, in relating the punishment to the crime committed, it has been held that the nature of the criminal as well as the nature of the crime is a legitimate judicial concern. (In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921.)

Defendant Cheatham also claims that the trial court did not properly interpret and apply rule 421, subdivision (b)(2), when it took into account the increasing seriousness of the crimes which were alleged in the probation report. He argues that since the burglary with which he is presently charged is less serious than the conviction for involuntary manslaughter which preceded it, there is no factor of increasing seriousness. The issue is whether rule 421, subdivision (b)(2), authorizes the trial court to impose an aggravated sentence only when the sequence of prior crimes is such that each crime is more serious than the last, and that the crime for which the defendant is being sentenced be the most serious of the group.

When rule 421 is read in relation to the purpose of the Determinate Sentencing Act, it is clear that the “increasing seriousness” language is meant to refer to the recognition on the part of the court that this particular defendant represents a danger to society. This judgment is not necessarily limited to the defendant's penchant for violent conduct (which would be covered by rule 421, subd. (b)(1)), but may also be based on the increasing seriousness reflected in the record of his prior convictions where this tends to disclose his predilection to criminal activity. The trial court properly took this into consideration as a factor in aggravation.


Defendant Cheatham further contends that the same facts (prior convictions) were used both to enhance the sentence and to aggravate the penalty imposed in violation of section 1170. The trial court explicitly used the priors for enhancement, adding one year for each of the convictions in the record. The defendant argues that but for the priors he would not have been on parole at the time that the crime was committed and therefore the court in fact used the priors to aggravate. The record discloses, however, that the court was clearly aware of the interrelation between aggravation and enhancement. The court used the fact that defendant was on parole to aggravate. Thereafter, having stayed one term of enhancement (the Health & Saf.Code violation) the court utilized the fact of the stay as an additional basis for aggravation (rule 421, subd. (b)(3)).

This sentencing does not constitute use of the same facts for both purposes. The parole places on the parolee an elevated standard of behavior which he is expected to maintain in order to continue his freedom from prison. A breach of this standard imposed solely as a result of parole status is a factor which may be considered in aggravation separate from the existence of the prior convictions. The prior convictions support enhancements whether or not the defendant is a parolee.


Defendant finally contends that under the Determinate Sentencing Act the function of incarceration is punishment and not rehabilitation and therefore the additional terms which must be served as enhancements constitute punishments for prior crimes. This, he argues, violates his constitutional guarantee against double jeopardy. (U.S.Const., 5th Amend.) This contention lacks merit. It is well settled that statutes imposing increased punishment for prior offenders do not result in double jeopardy. (People v. Tijerina (1969) 1 Cal.3d 41, 47, 81 Cal.Rptr. 264, 459 P.2d 680.)


The judgment is affirmed.


1.  Unless otherwise indicated, all statutory references are to the Penal Code.

2.  We note that the trial court interpreted s 667.5 to permit imposition of enhancement for a prior prison term whether or not that term was served concurrently with another, and the question may arise whether this section should be interpreted to allow only one enhancement in this situation. Since in the present case the enhancement for one of the concurrent prior terms was stayed, the question is moot.

HANSON, Associate Justice.

LILLIE, Acting P. J., and THOMPSON, J., concur.