Dual Use of Facts to Aggravate and Enhance
Category > Dual Use of Facts to Aggravate and Enhance
The trial court erred by using weapon use to enhance as well as invoke the one strike law.The trial court erred in imposing a three year enhancement for use of a deadly weapon where the court had already used that fact to invoke the one strike law. The trial court also erred by imposing a life term under count one for kidnaping during a carjacking as defendant’s one strike law sentence effectively relied on that offense. id: 22759
Improper dual use of same fact for imposition of upper term and consecutive term may not require resentencing.The trial court imposed an upper term and a consecutive term when sentencing a capital defendant for various noncapital offenses committed along with the capital murder. Because it was not reasonably probable that a more favorable sentence would have been imposed in the absence of the error, resentencing was not required in the face of this error. However, another sentencing error which required resentencing was involved, and the nonprejudicial erroneous sentences might be affected by the resentencing of the defendant on the prejudicial error. Therefore resentencing on all counts was required.id: 13835
Court erred in relying on the same factor both to impose a consecutive term and to impose an aggravated enhancement.The trial court erred in using the same factor, the use of a firearm, in imposing a five-year aggravated enhancement under count 1 and imposing a consecutive sentence for count 2. Given the existence of another sentencing error and the fact of a mitigating factor, the error required remand for resentencing.id: 13834
Use of the gun to aggravate the carjacking and enhance the sentence was improper.Defendants were sentenced to a nine-year upper term for carjacking, based solely on their use of a gun during the crime. Both received a 10-year term for their use of a firearm under Penal Code section 12022.53, subd.(b). This was an impermissible dual use of the facts. The issue was not waived for the lack of an objection where the record did not show defendants knew of the court's intended sentence and the probation report did not list use of the weapon as an aggravating circumstance. The matter was remanded for resentencing.id: 16764
The trial court did not err in using defendant’s prior DUI manslaughter conviction both to elevate his current DUI to a felony and to serve as a strike. The trial court did not err by using defendant’s prior drunk driving manslaughter conviction both to elevate his current drunk driving conviction to a felony and to serve as a strike. Moreover, there was no equal protection violation in allowing this dual use even though the statute elevating the current DUI to a felony as a result of DUI manslaughter does not also elevate a current DUI to a felony if the prior was for DUI second degree murder. id: 23374
The trial court did not err by using the same fact to aggravate both a base term and the gun use enhancement.The trial court did not violate the proscription against dual use of facts when it relied on the same fact to impose the upper term for manslaughter and for the related gun use enhancement.id: 21241
The trial court did not violate the dual use prohibition by using the prior to add the section 667(a) enhancement and double the term under the strikes law where other factors were used to impose the upper term.Defendant argued the trial court violated the prohibition against the dual use of facts by using his prior arson conviction to select the upper terms under Penal Code sections 451, subd.(d) and 451.1, subd.(a), and to impose the doubled term under the three strikes law, and the five year enhancement under section 667, subd.(a). However, the record shows the court properly used the prior to double the term under the strikes law and add the five year enhancement. The court cited other aggravating factors to impose the upper term under section 451, subd.(d) and 451.1.id: 20955
The trial court erred when it used the fact of defendant's prior convictions to impose an aggravated term and enhance his sentence under section 667.5, subd.(b).The trial court erred when it used defendant's three prior convictions to impose an aggravated sentence and then used the same convictions to increase his sentence by three years pursuant to Penal Code section 667.5, subd. (b).id: 20029
There was no dual use to aggravate and enhance problem because parole status and performance on parole are distinct aggravating factors.Defendant argued the trial court erred by making dual use of his prior conviction when it relied on his parole status and
unsatisfactory performance on parole to impose both the upper term sentence and the prior prison term enhancement. However, there was no error since parole status and prior performance on
parole are distinct aggravating factors.id: 19697
There was no improper dual use of the victim's age to impose an enhancement and then an aggravated term where the term was aggravated based on the victim's vulnerability which included her age as one factor.The court imposed a one-year enhancement to the robbery under Penal Code section 667.9, subdivision (a), because the victim was over 65 years of age. Then, in selecting the upper term for robbery, the court cited, among other things, the victim's vulnerability noting that she was 81 years old. This was not an improper dual use of the victim's age, since in imposing the aggravated term, the court noted she was 81, and lived alone. It was the combination of these facts that made her particularly vulnerable.id: 16506
"Force or fear" element of robbery was not improperly used to establish the firearm use enhancement.Defendant argued the force or fear element was based on his gun use during the robbery - and hence an element of the crime was improperly used to establish the firearm use enhancement. However, the particular means by which force is employed or fear imparted is not an element of robbery.id: 13833
Jury's rejection of the weapon use allegation did not preclude the court from finding weapon use to support a consecutive sentence.Defendant was convicted of several offenses and the court imposed a full consecutive term for the rape. He argued the evidence did not support the stated reason that he was armed with and used a weapon because the jury found the weapon use allegation not true. However, that finding did not preclude the court from finding defendant was armed. The testimony established that defendant exhibited a razor blade and told the victim he would cut her if she refused to have sex with him. This evidence supported the court's finding.id: 13836
Proscription against dual use of facts did not apply where the court noted defendant's performance on probation and his status as a probationer.The sentencing court relied on defendant's unsatisfactory performance on probation as a reason for making defendant's term for false imprisonment consecutive to his term for robbery. The court relied on defendant's status as a probationer as a reason for making his term for rape full and consecutive. However, the proscription against dual use of facts did not apply because performance on probation and probationary status are palpably different factors.id: 13837
There was no improper dual use of facts in imposing the upper term for the gun use enhancement and the attempted murder as high degree of cruelty is not identical to the fact that the victim was shot in the chest.Defendant argued there was an improper dual use of facts where the court imposed the upper term for the attempted murder and the upper term for the gun use enhancement on the charge due to the high degree of cruelty and callousness. However, the high degree of cruelty in selecting the upper term for the murder was not identical to the fact that the manner in which he used the weapon with no provocation and that he shot the victim in the chest. A gun use enhancement is proper even where the weapon is not fired. Where the weapon is fired into the victim's chest from point blank range, the manner of the gun use is aggravated.id: 13838
There was no improper dual use of the force or fear element of robbery as an aggravating circumstance where the threat of harm exceeded the minimum requirement.Defendant argued that if the trial court based its finding of threats of great bodily injury on defendant's conduct during the robbery (rather than the shots fired at the car as it sped away), then the force or fear element of robbery was used to impose upper terms - a prohibited dual use of a fact. However, the element of force and fear does not need to be extreme to constitute robbery. A threat of <U>great</U> bodily injury, such as the court found here, exceeded the minimum requirement by definition.id: 13839
Where defendant had seven drunk driving priors there was no improper dual use of facts to aggravate the term with the priors which were also used to elevate the crime to a felony.Defendant was convicted of felony drunk driving. He argued the trial court's use of his prior convictions as an aggravating factor was improper because those convictions are what made his offense a violation of Vehicle Code section 23175 - three prior drunk driving convictions within seven years. However, the elevation of the offense to a felony under section 23175 required only three prior convictions and defendant had at least seven priors. Thus, there was a surplus of pertinent priors sufficient to establish both a violation of section 23175 and a valid factor in aggravation, without the impermissible dual use of facts claimed by defendant.id: 13840
Where facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime the court can use such evidence to aggravate the sentence.Defendant argued the trial court improperly relied on the same facts to impose the upper term as the jury used to convict him of gross vehicular manslaughter. The trial court, recognizing the dual use proscription, relied on facts exceeding those necessary to establish gross negligence. It determined while an element of the crime is gross negligence, defendant's conduct exceeded even the word gross."id: 13841
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245