Flowers

This appeal presents two sentencing questions: appellant claims that imposition of a concurrent term for an assault violates Penal Code section 654’s prohibition against double punishment because the assault was merely incidental to a robbery, and that a three-year enhancement for a prior prison term served for a robbery conviction with great bodily injury under Penal Code section 667.5, subdivision (a), was improper.

Appellant was convicted of the robbery of Robert Clark (Pen. Code, § 211) in count one, and the infliction of great bodily injury on Clark (Pen. Code, § 12022.7); appellant admitted he had previously served prior separate prison terms within Penal Code section 667.5, subdivisions (a) and (b). He was convicted of assault by means of force likely to produce great bodily injury upon Clark in count two (Pen. Code, § 245, subd. (a)).

The court found circumstances in aggravation and imposed the upper term of five years for the robbery (count one) plus a three-year enhancement for infliction of great bodily injury (Pen. Code, § 12022.7) and one- and three-year enhancements for the prior prison terms admitted (Pen. Code, § 667.5, subds. (a), (b)), for a total…