PEOPLE v. LAWSON (1980)

OPINION

Appellant was convicted upon his guilty plea to count one of a December 24, 1978, robbery at the Downtowner Inn, with the use of a firearm (Pen.Code, ss 211, 12022.5, respectively). He was convicted upon his guilty plea to count two of a January 2, 1979, attempted robbery of Wimpey's Liquors (Pen.Code, ss 664, 211).¹ A third count of possession of a sawed-off shotgun (Pen.Code, s 12020, subd. (a)) was dismissed.

The trial court stated the following as to its count one sentence choices:

“THE COURT: . . . As to count one, aggravated term will be selected. Crimes involved the threat of great bodily harm. The crimes involved multiple victims. Armed robber who held up the Downtowner Inn. Danger to the lady clerk. Wimpey's Liquors, he wrestled with the owner Mr. Orman, pointed a shotgun at him, while he is on the floor. The planning with which the crime (Sic ) were carried out indicates premeditation. The defendant for the commission of current offenses has engaged in conduct which indicates a serious danger to society. Defendant's prior convictions are numerous. Defendant has in the past been committed to California Youth Authority. The defendant was on probation at the time of the crimes. The defendant's prior performance on probation was unsatisfactory. The crime is too serious for consideration of California Rehabilitation Center. Excessive criminality is displayed. Assaultive, violent behavior. The defendant will be a management problem for the minimum-security, open door facility.

“So the term will be aggravated to state prison, sum of four years. Be enhanced per count one Penal Code 12022.5 for two more years. As to count two ”

The trial court then sentenced appellant to eight months on count two, stating:

“(THE COURT:) So in count two the sentence will be consecutive for the same reasons that I've stated, the seriousness of the crime. Same terms I placed as to aggravated. The court will run the sentences consecutively, and for the count two, will be eight months additionally.”

From the premise that the dual use of facts prohibition of Penal Code section 1170, subdivision (b) applies to the imposition of aggravated and consecutive sentences, appellant contends that since the trial court expressly relied on the same facts for both sentence choices, a forbidden dual use occurred.

The threshold question is whether appellant's basic premise is valid. Respondent does not challenge the premise insofar as it relates to facts relating to the crime (see Cal.Rules of Court, rule 421(a)(1) through (12)). However, as to these facts, respondent contends that the circumstances cited by the trial court related to different crimes, not the same crime, and therefore different facts were used to aggravate and impose a consecutive sentence. Concerning aggravation facts which “relate to the defendant's bad character,” where the defendant is guilty of two or more independent crimes, respondent contends the dual use prohibition does not apply.

At all times relevant hereto,² Penal Code section 1170, subdivision (b) provided, in pertinent part:

“(b) . . . The court may not impose an upper term by using the same fact used to enhance the sentence under Section 667.5, 1170.1, 12022, 12022.5, 12022.6, or 12022.7. . . .”

Penal Code section 667.5 provides for imposition of an additional term of imprisonment for prior prison terms, Penal Code section 12022 for being armed with a firearm or personally using a deadly or dangerous weapon, Penal Code section 12022.5 for personal use of a firearm, Penal Code section 12022.6 for intentionally taking, damaging, or destroying property, and Penal Code section 12022.7 for intentional infliction of great bodily injury. Penal Code section 1170.1 includes provisions which pertain to the imposition of consecutive terms and the calculation of their length.³

Since the dual use prohibition extends to any fact used to enhance the sentence under Penal Code section 1170.1 and since section 1170.1 provides for imposition of consecutive terms and calculation of their length, it follows that, within the meaning of Penal Code section 1170, subdivision (b), a fact used to impose a consecutive sentence is a fact used to enhance a sentence under Penal Code section 1170.1. Therefore, the dual use prohibition applies.

The Judicial Council sentencing rules reinforce this interpretation. California Rules of Court, rule 405(c) defines “enhancement” as an additional term of imprisonment added to the base term. A consecutive sentence is an additional term of imprisonment which is added to the principal term, i. e., the base term plus any enhancements under Penal Code sections 12022, 12022.5, 12022.6, or 12022.7. (Pen.Code, s 1170.1, subd. (a).) We do not find any significance in the fact that the rule refers to the base term, as opposed to the principal term.

California Rules of Court, rule 441(c), provides:

“(c) A fact used to enhance the defendant's prison sentence may not be used to impose the upper term.”

The Advisory Committee Comments to California Rules of Court, rule 441, state:

“Note that under section 1170(b) and rule 405 (definitions), the additional term resulting from ordering sentences to be served consecutively is an ‘enhancement.’ Section 1170(b) therefore prohibits using the same fact to decide to impose consecutive sentences and to decide to impose the upper term. Subdivision (c) applies to that case as well as to enhancements arising from facts charged and found.”

From the above, we conclude that the statute proscribes use of the same fact to both aggravate the base term and to impose consecutive sentences. We reject respondent's contention that the dual use prohibition “was not meant to preclude such use when the factors relate to the defendant's bad character and the defendant is guilty of two or more independent crimes.” First, the statute makes no such distinction. On its face, it applies to any and all facts used to enhance under the cited sections.

Second, the language of the statute itself refutes respondent's attempted distinction. Obviously, a prior prison term (Cal.Rules of Court, rule 421(b) (3)) relates directly to a defendant's bad character, as witness the stigma which attaches to being an “ex-con.” But Penal Code section 1170, subdivision (b) specifically precludes aggravation use of the same fact used to enhance under Penal Code section 667.5, i. e., prior prison terms. Respondent argues that factors relating to a defendant's bad character are relevant to sentencing on each separate crime. While this is true, perhaps, it may also be said that any fact used to enhance is no less relevant to selection of an aggravated base term. However, the Legislature has made a judgment precluding dual use based on considerations other than narrow relevancy.

Once it is established that the dual use prohibition extends to consecutive sentences and the use of Any fact which was employed to enhance, it follows that the instant case must be remanded for resentencing, because the trial court made use of certain facts relating to appellant, both to choose an aggravated term and to impose consecutive sentences. These facts included appellant's numerous prior convictions, a past commitment to the California Youth Authority, probationary status at the time be committed the instant offense, and prior unsatisfactory probationary performance.⁴

We reject respondent's suggestion that the “properly applied factors” are sufficient to sustain the sentence. First, the remaining factors cited by the trial court themselves are problematical. For example, the crime in count one did not involve multiple victims. It involved one victim. The court may not aggregate single victims from independent crimes to come within California Rules of Court, rule 421(a)(4), which speaks of the Crime, singular not plural.

Second, where a dual use occurred as to multiple factors, we are unwilling to speculate as to which factor(s) might have been determinative to the trial court. (See People v. Roberson (1978) 81 Cal.App.3d 890, 893, 146 Cal.Rptr. 777.)

The judgment is reversed for the limited purpose of resentencing in accordance with the principles expressed herein. In all other respects, the judgment is affirmed.

FOOTNOTES

1.  A firearm-use allegation as to count two was stricken.

2.  In 1978, Penal Code section 1170, subdivision (b), was amended to read, in pertinent part: “The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under Section 667.5, 1170.1, 12022, 12022.5, 12022.6, or 12022.7.” This amendment applies prospectively to crimes committed on or after January 1, 1979. (Stats.1978, ch. 579.) Since the count one robbery occurred prior to that date, the new subdivision (b) does not apply to the instant case, even though the count two offense occurred after January 1, 1979.

3.  At the time of sentencing section 1170.1 provided, in pertinent part:“(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 judge 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.“(b) In the case of any person convicted of one or more felonies committed while such person is confined in a state prison, or is subject to reimprisonment for escape from such custody and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all such convictions which such person is required to serve consecutively shall commence from the time such person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a), except that the total of subordinate terms may exceed five years. The provisions of this subdivision shall be applicable in cases of convictions of more than one offense in different proceedings, and convictions of more than one offense in the same or different proceedings.“(c) When the court imposes a prison sentence for a felony pursuant to Section 1170 the court shall also impose the additional terms provided in Sections 667.5, 12022, 12022.5, 12022.6, and 12022.7, unless the additional punishment therefore (Sic ) is stricken pursuant to subdivision (g). The court shall also impose any other additional term which the court determines in its discretion or as required by law shall run consecutive to the term imposed under Section 1170. In considering the imposition of such additional terms, the court shall apply the sentencing rules of the Judicial Council.”The section has since been amended in a manner not germane to the present case.

4.  We note that meaningful appellate review will be facilitated if, on remand, the trial court specifically and separately states its facts or reasons relied upon for aggravation and for consecutive terms, if this again be the sentence imposed.

GEO. A. BROWN, Presiding Justice.

FRANSON and ZENOVICH, JJ., concur.