PEOPLE v. HILL (1985)

By information, defendant was charged in Counts I, II and III with forcible rape while acting in concert and while personally armed with a deadly weapon (Pen.Code, §§ 261, subd. (2), 264.1, 12022.3).   Counts IV, V and VI charged oral copulation in concert and while personally armed with a deadly weapon (Pen.Code, §§ 288a, subd. (a) and (d), 12022.3).   Count VII alleged burglary, Count VIII alleged robbery (Pen.Code, §§ 459, 211) and both counts alleged that a principal was armed with a firearm during the commission of the offense (Pen.Code, § 12022, subd. (a)).   Counts IX and X alleged assault with a firearm on two separate victims and that a principal was armed with a firearm during the commission of the offense.   Counts XI and XII alleged false imprisonment (Pen.Code, § 236) while armed with a firearm within the meaning of Penal Code section 12022, subdivision (a).

Defendant's trial was severed from that of his codefendant.   After a jury trial, he was found guilty of each of the twelve counts and each of the special allegations of being armed at the time of commission of the offense as alleged was found to be true.   The jury found the burglary (Count VII) to be of the first degree.   Defendant's motion for a new trial was denied.   Defendant was sentenced to state prison.   Sentence, however, was stayed on Counts II, III, V, VI, X, XI, and XII to avoid the prohibition of section 654 of the Penal Code against multiple sentencing.   Defendant appeals from the judgment.

The defendant claims six points of reversible error.   First, defendant urges that the trial court abused its discretion in denying defendant's motion for a new trial.   Second, defendant contends that reversible error occurred when the trial court failed to properly instruct the jury, sua sponte, on the principles of aiding and abetting, pursuant to CALJIC No. 3.01.   Third, defendant avers the trial court incorrectly sentenced defendant on Count IX, assault with a firearm.   Fourth, defendant claims the upper term sentence imposed by the trial judge was imposed solely because the defendant exercised his right to a jury trial.   Fifth, defendant argues that the trial court committed reversible error in violation of Penal Code section 654 by imposing a consecutive sentence on the charge of burglary.   Last, the defendant accuses the prosecutor of prejudicial misconduct in his closing argument to the jury which, he urges, should have resulted in a mistrial.

FACTS

In the late evening of September 15, 1983, Angela Wrenn was at her home at 849 East Victoria Street in Carson watching television with two friends, Paul McCorry and Ray Thompson.   She fell asleep.   Sometime near midnight, Raymond Thompson, responding to a knock on the door of the residence admitted Darren Elliot and relocked the door.   Elliot had come to visit “Angie” who was still asleep.   After watching television for a while, Elliot went downstairs for water.   When he returned, he made a telephone call from the bedroom and then took his water glass back downstairs.   He returned to the bedroom and again began watching television with Thompson and McCorry.

Approximately 15 minutes later, three men, one of them the defendant, entered the bedroom.   One man carried a sawed-off shotgun.   McCorry, Thompson and Elliot were ordered into a bedroom closet.

Angela Wrenn was awakened by noise in her room.   When she became alert, she observed the defendant holding a sawed-off shotgun pointed at her head.   She felt someone sitting on her back who removed her jewelry and then tied her hands behind her back.

Miss Wrenn was then taken downstairs.   After the keys to her two vehicles and various personal items were taken and after the house was ransacked, her feet were tied and she was ushered into the bathroom.

Defendant and another man untied Miss Wrenn, removed all of her clothes, and then retied her hands behind her back.   She was taken back into the bathroom.   One of the men removed his pants and sat on the toilet.   He made Miss Wrenn sit on his penis while defendant took his pants down and required Miss Wrenn to put his penis in her mouth.   After an act of sexual intercourse took place, defendant changed positions with the other man and the acts were repeated.   They left and a third man entered and required Miss Wrenn to orally copulate him.   He left and defendant reentered the bathroom alone, required Miss Wrenn to bend over, and another act of sexual intercourse occurred.   A fourth man who entered after defendant left looked at her, said “forget it” and left.   All of these acts were committed without Miss Wrenn's consent.

Defendant and one of the men returned to the bathroom and one of them was carrying the shotgun.   She was told to remain there or they would “blow her head off.”   They left and she locked the door and sat in the corner crying.   When Thompson and McCorry extricated themselves from the closet, they went downstairs to the bathroom where they found a naked, somewhat hysterical Angela Wrenn.   Darren Elliot was gone.

The intruders had remained for approximately one hour, 15 minutes.   The police were called.   Miss Wrenn's red BMW Mustang, stereo, a shotgun, television set and various other personal items were missing.

On September 14, 1984, the date previous to these events, Darren Elliot, Joseph Evans, Howard Custard, James Stewart and defendant Alvin Hill made plans to “rob a house.”   Defendant drove the vehicle and Howard Custard had a shotgun.   When they arrived at the security apartment complex in Carson, Darren Elliot entered the apartment and the others waited in a yellow pickup truck.   When they received a call at the security gate phone, they entered the unlocked door of the apartment.

The defendant, Alvin Hill, is the identical twin of Calvin Hill.   Mrs. Adele O'Lee, their mother, testified that she awakened Calvin at 2:30 a.m. on the morning of September 15.   Mrs. O'Lee, her husband and Calvin went to work at a cleaning job for two hours.   Mrs. O'Lee and Calvin returned home about 5 a.m. and both went to bed.   Alvin was not home at 2:30 a.m. nor was he at home at 5 a.m. when they returned.

Joseph Evans testified that he had known Alvin for “close to a year” and knew that he had a brother.   He did not know the brother Calvin was a twin, and saw him for the first time on the evening of September 14, 1984.   Mr. Evans identified Alvin in court as the brother who had participated in the events at the Wrenn home.

I

Defendant argues that the trial court abused its discretion in denying the defendant's motion for a new trial.   The new trial was urged on the ground of newly discovered evidence.   Defendant proffered that he had recently discovered that witness Joe Evans had, prior to giving testimony in court, been told the type of clothing that the defendant would be wearing.   Appellant argues that this act by a prosecution investigating officer tainted the identification and constitutes a gross violation of due process for which the appropriate sanction is a new trial.

Defendant supported his motion with sworn testimony from Joe Evans, who had already entered his guilty plea as a coparticipant in the events of September 14 and September 15.   Evans testified that at the trial prior to being summoned to the courtroom to testify, the investigating officer advised him that Alvin would be the twin wearing a red shirt.   On cross-examination, however, Evans testified that Alvin was in fact the twin who had accompanied him to the Wrenn home.   Further, he said that he had known Alvin previously and would have no difficulty identifying him by his personality.   He, moreover, testified there was no doubt in his mind that Alvin Hill was with him on the night of the crime and that he had testified truthfully.   Evans also testified that later at the county jail he told Alvin it had not been hard to pick him out because of the red shirt.   Alvin replied that what Evans had done “wasn't cool” and that he was a snitch.   Evans testified that Alvin never denied “being the guy.”   The trial court denied the motion for a new trial on two grounds:  (1) that Evans' identification of defendant was based upon the fact that Evans knew the defendant and had participated with him in the commission of the crime;  and (2) that even without the in-court identification, the evidence of the defendant's guilt was overwhelming.

 We hold that the trial judge did not improperly exercise his discretion in denying defendant's motion for a new trial.   One of the bases upon which a new trial may be granted on the ground of newly discovered evidence, is that it must appear that the evidence is such as to render a different result probable on a retrial of the cause.  (People v. Martinez (1984) 36 Cal.3d 816, 821, 205 Cal.Rptr. 852, 685 P.2d 1203.)   It is axiomatic that in determining whether there has been an abuse of discretion, each case must be judged upon its own unique factual background.  (People v. Williams (1962) 57 Cal.2d 263, 274–275, 18 Cal.Rptr. 729, 368 P.2d 353.)   In the case at bench, the trial court reasoned that even without the in-court identification of defendant, the jury could not have reasonably concluded that the defendant's brother or any other person had committed the crimes of September 14 and 15.   Defendant was identified by Angela Wrenn, Raymond Thompson and Paul McCorry, all of whom had sufficient time to observe defendant as having participated in the crimes.   Officer Roberts identified defendant as the person driving Miss Wrenn's stolen BMW at 10:30 a.m. the morning of the crime.   Defendant's mother testified that at 2:30 a.m. Calvin was home asleep and Alvin was not at home.

 Accordingly, the newly discovered evidence does not countervail the extremely strong case presented by the prosecution against defendant.   The conclusion of the trial judge that no reasonable doubt would have been raised in the mind of the jury had the witness not been able to identify defendant was not, in our view, an abuse of discretion.   We conclude and hold that the circumstances of the identification were not so impermissibly suggestive as to raise a substantial likelihood of irreparable misidentification.  (See, Simmons v. United States (1968) 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247.

II

The appellant contends that reversible error occurred when the trial judge failed to correctly instruct the jury sua sponte on the law of aiding and abetting as embodied in CALJIC No. 3.01.   The court instructed the jury in the form found to be inadequate in People v. Beeman (1984) 35 Cal.3d 547, 562, 199 Cal.Rptr. 60, 674 P.2d 1318.¹  The reading of this instruction, it is urged, constituted reversible error because the jury instruction given did not define what acts constitute aiding and abetting, and the last paragraph did not adequately inform the jury of the criminal intent required to be present before defendant may be convicted as an aider and abettor.

 CALJIC No. 3.00 and 3.01 (1984 rev.) have been revised to incorporate the principles set forth in People v. Beeman, supra, 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318.   Both instructions, as revised, should be given sua sponte in every case in which any defendant is prosecuted as an aider and abettor.   The crucial issue in this case before the court is:  does the failure to so correctly instruct constitute reversible error?   As we stated recently in People v. Loud 165 Cal.App.3d 672, 212 Cal.Rptr. 20, we must look to People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826, as the standard for determining prejudice where an instruction violates due process.

 Various past decisions have made it clear that when intent is an element of a crime any instruction directing a jury to find or to conclusively presume intent is a denial of due process, regardless of the weight of the evidence.   Moreover, any failure to instruct or any instruction which has the effect of relieving the prosecution of its burden to prove each and every element of a charged offense beyond a reasonable doubt also constitutes a denial of due process.  (People v. Garcia, supra, 36 Cal.3d at p. 551, 205 Cal.Rptr. 265, 684 P.2d 826.)   In Garcia, the Supreme Court concluded that failure to instruct on intent requires automatic reversal unless certain exceptions obtain.   These Garcia exceptions have been set forth in People v. Ramos (1984) 37 Cal.3d 136, 146–147, 207 Cal.Rptr. 800, 689 P.2d 430:

“(1) ‘ “[I]f the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted,” ’ [citation], (2) ‘ “if the defendant conceded the issue of intent” ’ [citation], (3) if ‘ “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions” ’ [citation], or (4) under limited circumstances, if ‘the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration.’  [Citations.]”

 In this case we find that both the second and fourth Garcia exceptions are present and reversal is not, therefore, mandated.   Although the defendant did not present a defense to the court by summoning witnesses, he did clearly rely on the defense of alibi.   By way of example, defense counsel in summation argued that:  (1) Miss Wrenn was under too much stress to be able to distinguish between Alvin and Calvin;  (2) that witnesses Thompson and McCorry admitted they could not differentiate between the twins when they appeared in court;  (3) that two police officer witnesses who knew Alvin and Calvin contradicted each other regarding their hair style;  (4) that a co-perpetrator of the crimes, Joe Evans, could have been mistaken as to whether it was Alvin or Calvin;  and, (5) the jury must question whether they are morally certain that it was Alvin rather than Calvin.   As we explain in People v. Loud, supra, 165 Cal.App.3d 672, 212 Cal.Rptr. 20, by raising an alibi defense a defendant may, himself, take the issue of intent away from the jury.

It is our view, moreover, that not only did the defendant concede the issue of intent, but in addition, the record establishes the necessary intent as a matter of law and there is no contrary evidence worthy of consideration.   Defendant's actions in the planning and the execution of the events the evening of September 14 and morning of September 15 “establish intent as conclusively as if it were unequivocally conceded.”  (See People v. Garcia, supra, 36 Cal.3d at p. 556, 205 Cal.Rptr. 265, 684 P.2d 826.)   There is no denial the criminal acts occurred;  there is only a reliance on the alibi defense.   The defendant is conceding that the perpetrator of the criminal acts had the required intent.   There being no issue of intent for the jury to consider the failure to correctly instruct the jury on that issue was not prejudicial.  (People v. Loud, supra, 165 Cal.App.3d 672, 212 Cal.Rptr. 20;  also People v. McGriff (1984) 158 Cal.App.3d 1151, 205 Cal.Rptr. 232.)

III

 It is the defendant's position that the prosecutor in his final argument to the jury committed Griffin error.   The rule of Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, prohibits prosecutorial comment upon a defendant's exercise of his Fifth Amendment right to not testify in his own behalf.   The record reflects that the prosecutor zealously closed his argument to the jury with the comment, “the defense has failed to call any witnesses, any persons who saw him between 5:30 and 10:30 the next morning to explain where he was.   That is the state of the evidence.”

 If a Griffin constitutional error occurs, it must be deemed prejudicial and, therefore, reversible unless we, the reviewing court, can find the error to be harmless beyond a reasonable doubt.   The rule of harmless error was originally articulated in Fahy v. Connecticut (1963) 375 U.S. 85, 86, 84 S.Ct. 229, 230, 11 L.Ed.2d 171, and has been reasserted in Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.   We must, therefore, first examine whether Griffin error occurred.   If we determine that such constitutional error did, in fact, occur, the applicable test of prejudice is whether we can affirmatively find that “there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”  (Fahy v. Connecticut, supra, 375 U.S. at p. 86–87, 84 S.Ct. at p. 230–231.)

We note that the words which were disapproved in Griffin were to the effect that the defendant had failed to take the stand to deny or explain the state of the evidence.  (Griffin v. California, supra, 380 U.S. at p. 611, 85 S.Ct. at p. 1231.)   The challenged comment in the case at bar is that the defendant has failed to call witnesses or persons to explain where he was during the time the crime took place.   The argument the defendant seems to be urging is that a comment regarding the failure to call witnesses is an indirect reference to the defendant's decision not to testify, and that such comment would adversely impact upon a juror's decision-making process.

 The Griffin rule does not prohibit comments by a prosecutor regarding the state of the evidence or prohibit comments upon the failure of a defendant to introduce evidence that would be material on the issue of guilt or innocence.   Nor is comment upon the failure of the defendant to summon witnesses who should logically have been produced anathema.  (People v. Vargas (1973) 9 Cal.3d 470, 475, 108 Cal.Rptr. 15, 509 P.2d 959, citing People v. Burns (1969) 270 Cal.App.2d 238, 247, 75 Cal.Rptr. 688.)   We must, nonetheless, be concerned with the essential meaning which the words uttered by the prosecutor may have conveyed.   Are those words limited to a failure of the defendant to call witnesses, or do they surreptitiously and obliquely allude to the defendant's silence?   The prosecutor may have intended only to convey the idea that there was a failure to call available witnesses to explain the defendant's whereabouts.   Yet, we view the words as capable of the inference that the defendant was the only witness or person who could supply this information and, having not done so, he was more probably guilty.   While the prosecutor's comment did not mirror the prohibited language of Griffin, it is sufficiently ambiguous that it must be deemed to be violative of the Griffin constitutional proscription.

Since the committed error is constitutional in magnitude, our next inquiry must be whether under the rule set forth in Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, that error was harmless.   In that regard, we focus upon the extent to which, if at all, the prosecutor's statement may have materially influenced any juror to consider the defendant's decision not to testify as an indication of his guilt.

We note that the prosecutor's statement came at the very close of his argument.   Only by innuendo is there possible reference to the defendant's election to remain silent.   In this case, there is not present the “machine-gun repetition” of the offending words “designed and calculated to make [defendant's] version of the evidence worthless․”  (Id., at p. 26, 87 S.Ct. at p. 829.)   There is no explicit statement or suggestion that from among the smorgasbord of inferences at hand the one most probable is that one which is most unfavorable to the defendant.   For these reasons, the damaging effect of the prohibited utterance, if any, is mitigated.

Justice Tobriner, with great insight, has provided us a guide by which we may analyze whether the prosecutor's statement was prejudicial.  “In order to prove prejudicial, a comment which could not serve to fill an evidentiary gap in the prosecution's case must at least touch a live nerve in the defense, not one which has been rendered inert by such intrinsic improbability as would prevent it from generating any real doubt in the mind of a reasoning juror.”  (People v. Modesto (1967) 66 Cal.2d 695, 714, 59 Cal.Rptr. 124, 427 P.2d 788.)   In the case at bar, there was no gap to be filled in the case presented by the prosecution to the jury.   Defendant was identified by more than one witness who each had ample opportunity to carefully observe him.   Moreover, the defense upon which defendant relied was improbable, hence inert.   Defendant sought to oppugn the very substantial evidence arrayed against him by relying on a theory of error.   He sought to establish reasonable doubt in the minds of the jurors by implanting the improbable inference, considering the evidence, that his twin and not he had committed the crimes.   The defendant's silence given this posture of the defense may have assumed great significance.   We are, however, convinced beyond any reasonable doubt that the indirect and casual comment of the prosecutor was insignificant and made no contribution to the conviction of the defendant.   For these reasons, there is no Griffin error.

IV

 We turn now to defendant's contention that the trial judge, in sentencing the defendant, abused his discretion by imposing the upper term.   The defendant asserts that the comments of the judge at the time of sentencing ² are illustrative that the sentence imposed was solely upon the basis that the defendant exercised his constitutional right to a trial.   We find the argument unavailing.   It is an abuse of discretion for a judge to impose a more harsh sentence than he would have otherwise imposed had there been no trial.   Such an act would be retaliatory and is impermissible.   The trial judge does, however, have wide discretion within the legislatively proscribed limits in determining an appropriate sentence.   This discretion will not be disturbed on appeal in the absence of a showing of an abuse of such discretion.  (People v. Morales (1967) 252 Cal.App.2d 537, 547, 60 Cal.Rptr. 671.)   It is within the proper province of the judge to consider before sentencing relevant factors which bear upon rehabilitation and deterrence.   We observe that this is precisely what the judge did when he specifically stated his reasons ³ for imposing the upper term sentence.   They include a consideration of:  (1) the degree to which the defendant was remorseful and inclined to modify his behavior;  (2) the leadership role taken by the defendant in planning and executing the crime and enlisting others less sophisticated;  (3) the nature of the crimes and the multiple crimes involved;  (4) the use of deadly force within the sanctity of the victim's home;  and (5) the appropriation of property of substantial value.

We perceive no abuse of discretion by the court in considering these factors and in imposing the upper term sentence.

V

 It is conceded by the prosecution, and properly so, that a sentencing error was committed with respect to Count IX.   The defendant was convicted on that count of a violation of Penal Code section 245, subdivision (a)(2) ⁴ assault with a firearm and the allegation that a principal was armed within the meaning of section 12022, subdivision (a) ⁵ was found to be true.   Inasmuch as the midterm for a Penal Code section 245, subdivision (a)(2) violation is three years, that consecutive term should be modified from the one year and four months imposed, to a term of one year as is prescribed by section 1170.1.

 We find merit in the defendant's contention that the enhancement sentence imposed for the 12022, subdivision (a) violation is improper.   We so conclude on the basis of the reasoning of In re Shull (1944) 23 Cal.2d 745, 146 P.2d 417.  Section 12022, subdivision (a), is a derivative of section 3 of the “Deadly Weapons Act” ⁶ (Stats.1923, ch. 339, p. 696).   Our Supreme Court analyzed the original version of this statute and held, in Shull, that it was not the intent of the Legislature to have section 3 apply where the felony of which the person stands convicted is assault with a firearm under section 245.  Section 12022, subdivision (a) is derived from and contains essentially the same language as did section 3 and should, therefore, be similarly interpreted.   The reasoning of the court in Shull was that the additional penalty was intended to apply to those felonies where a firearm is not an essential factor, because such arming increases the probability of injury or death.  “Briefly, the Legislature has fixed the punishment for an assault where a deadly weapon is used, a particular crime, and it is not to be supposed that for the same offense without any additional factor existing the added punishment should be imposed.”  (In re Shull, supra, 23 Cal.2d at p. 751, 146 P.2d 417.)   Since we conclude ⁷ that being armed was a necessary element of the offense of which the defendant was convicted, section 245, subdivision (a)(2), the enhancement sentence of eight months should not then have been imposed.   In that additional regard, the sentence is ordered modified.

VI

 The prosecutor concedes defendant's contention that he was, on Count VII, sentenced in violation of section 654.   The prosecutor, however, proposes staying the consecutive sentence of one year imposed on the robbery in Count VIII rather than the one year four month sentence of Count VII as urged by the defendant.  Section 654 ⁸ forbids the imposition of punishment for more than one offense when a set of offenses are a part of an indivisible course of criminal conduct.  (People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63.)   When a court encounters multiple offenses within the ambit of section 654, the typical practice is to impose sentence on the offense which presents the most severe punishment.   It is clear, however, that the trial court has discretion to impose sentence on either the greater or lesser offense.  (People v. Bradley (1981) 115 Cal.App.3d 744, 753, 171 Cal.Rptr. 487.)   We may logically presume, however, that when the court has sentenced a defendant on the more serious counts and has stayed execution of sentence on certain of the lesser convictions to which section 654 is applicable, it was the precise intent of the court to impose the more serious penalty.   Accordingly, the one year consecutive sentence of Count VIII, rather than the one year four month sentence of Count VII is ordered stayed.

The judgment is modified as follows:  execution of the sentence imposed with respect to Count IX (assault with a firearm) is reduced to one year;  the enhancement sentence as to Count IX (a principal being armed) is stricken;  execution of the sentence imposed in Count VIII (robbery) is stayed pending the finality of this judgment and service of the sentences in Counts I, IV, VII, and IX.   The stay is to become permanent upon completion of the terms imposed in Counts I, IV, VII, and IX.

The trial court is directed to correct its abstract of judgment consistent with this opinion and cause to be forwarded to the Department of Corrections a certified copy thereof;  the Department will modify its records accordingly.   As modified, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.     The jury received the following instruction:“The persons concerned in the commission or attempted commission of a crime who are regarded by law as principals in the crime thus committed or attempted and equally guilty thereof, include:“1, Those who directly and actively commit or attempt to commit the act constituting the crime, or,“2, Those who, with knowledge of the unlawful purpose of the one who does directly and actively commit or attempt to commit the crime, aid and abet in its commission or attempted commission, or,“3, Those who, whether present or not at the commission or attempted commission of the crime, advise and encourage its commission or attempted commission.“One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing but is also liable for the natural and reasonable or probable consequence of any act that he knowingly aided or encouraged.”This instruction is also violative of Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, which holds that an instruction that the law presumes that a person intends the ordinary consequences of his voluntary acts is reversible per se unless certain exceptions are established.

2.     “So I agree with you, Miss London.   I don't think anyone should be receiving a severe sentence because they exercised their right to a trial and their constitutional rights, and I won't let that enter the equation, so to speak, in that manner.“On the other hand, there is a valid observation or inference to be drawn from—I think from the plea of guilty, vis-a-vis, denial of guilt that is perpetuated, which effects the likelihood that there's any remorse, regret, or inclination to change one's ways.“I think that is a proper consideration for sentencing;  however, not a factor which entered into my analysis of the appropriate sentence in this case.”

3.     “The evidence indicates that Mr. Hill was the person who put this whole thing together.   I agree with you that he ought not be—that his sentence ought not to be effected by the fact that he went to trial, and it will not be.   It is not my intention to, but it seems to me that Mr. Hill was instrumental in the planning of the enterprise, a very professional job, I might observe;  and that he was also instrumental in enlisting the participation of men who might—my recollection of the evidence is if they had had a clear view of what was intended, might very well not have participated or withdrawn.”“THE COURT:  I'm sorry.   I had made notes to myself.“I have articulated some of the reasons.   It is my feeling that based on the evidence, that Mr. Hill was the moving force who planned this operation in a very professional way.   He was the ringleader.   He planned the offense.   I believe he was responsible for involving two others who had a minimal or virtually no record and who have demonstrated that they have grave regrets about their participation and I think that but for Mr. Hill's leadership, they might well not have had this confrontation with the law.“The crime involved multiple victims.   It was done with deadly force.   It was a home invasion which would have been particularly frightening and intimidating to the victims in this case and was, I believe.“The whole scheme demonstrated, as I've already indicated, precise planning and premeditation and a cooperative effort to breach the security of the condominium complex, and then with the additional impact of the victim's feeling of security being shattered by the invasion of her home, together with the considerations and aggravations articulated in the probation report, which I have reviewed and adopted, which is a crime involving bodily harm, blows to the head, the ever-present threat of the sawed-off shotgun, discharging and scattering projectiles throughout the room.“And as I've already indicated, the fact that the victim lived in what she believed to be a secure home and having that invaded.“Also, the fact that multiple victims were involved, multiple crimes and offenses which were essentially unrelated.“The sex crimes were not really related to what appears to be the initial purpose of the entry, which robbery was consummated, and there was the actual taking of property of substantial value.“I perceive no circumstances in mitigation, and for that reason, the court has imposed the upper term on count one and made those additional counts consecutive to that count as already indicated.”

4.   All references are to the Penal Code.

5.   Penal Code section 12022, subdivision (a), reads, in part:“Any person who is armed with a firearm in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony ․ of which he has been convicted, be punished by an additional term of one year, unless such arming is an element of the offense of which he was convicted.”

6.   Section 3 of the Deadly Weapons Act reads, in part:“If any person shall commit or attempt to commit any felony within this state while armed ․ with any pistol, revolver or other firearm capable of being concealed upon the person ․ upon conviction of such felony or of an attempt to commit such felony, he shall in addition to the punishment prescribed for the crime of which he has been convicted, be punishable by imprisonment in a state prison for not less than five nor for more than ten years.   Such additional period of imprisonment shall commence upon the expiration or other termination of the sentence imposed for the crime of which he stands convicted and shall not run concurrently with such sentence.”

7.   There is authority contrary to our holding.   See People v. Yu (1983) 143 Cal.App.3d 358, 378, 191 Cal.Rptr. 859.

8.   The statute reads:“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;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

DUNN, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

McCLOSKY and ARGUELLES, JJ., concur.