Simpson

Convicted of robbery, Michael Tyrone Simpson, contends the trial court erred in enhancing his term because of his admitted prior felony conviction, while aggravating his base term because he was on parole for the same previous conviction when committing his present offense. He meritoriously claims additional presentence custodial credits.

Unless otherwise prohibited the proved fact Simpson served a previous prison term within the meaning of Penal Code 1 section 667.5, subdivision (b) permits a one-year enhancement to his sentence. Similarly, the admitted fact he was on prison parole when committing the current crime is a factor which a sentencing court may use to justify imposition of the aggravated upper-base term. (Rule 421(b)(4), Cal. Rules of Court.)

Section 1170, subdivision (b) and rule 441(b) and (c), California Rules of Court, prohibit the dual use of a single factor to both justify imposing the upper-base term and to enhance that term.

Simpson describes the trial court’s action as the proscribed double use of a single fact. The Attorney General claims the fact of serving a previous prison term is separate from the fact of being on parole for the offense on…

I would not allow Simpson to receive credit for time served for each of the offenses and, similarly, he should not receive double credit for good time/work time. He should not be rewarded in each of the two separate prison terms for the one period of custody when persons who are convicted of two crimes in a similar fashion but separated in time would not be given that benefit. In re Rojas (1979) 23 Cal.3d 152 [ 151 Cal.Rptr. 649 , 588 P.2d 789 ], says: “[A] defendant is not to be given credit for time spent in custody if during the same period he is already serving a term of incarceration.

“There is no reason in law or logic to extend the protection intended to be afforded one merely charged with a crime to one already incarcerated and serving his sentence for a first offense who is then charged with a second crime. As to the latter individual the deprivation of liberty for which he seeks credit cannot be attributed to the second offense. Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant’s liberty.” (id., at pp. 155-156; italics in original.)

Although the record is not as clear as it could be regarding the parole…

Convicted of robbery, Michael Tyrone Simpson, contends the trial court erred in enhancing his term because of his admitted prior felony conviction, while aggravating his base term because he was on parole for the same previous conviction when committing his present offense. He meritoriously claims additional presentence custodial credits.

(1) Unless otherwise prohibited the proved fact Simpson served a previous prison term within the meaning of Penal Code [1] section 667.5, subdivision (b) permits a one-year enhancement to his sentence. Similarly, the admitted fact he was on prison parole when committing the current crime is a factor which a sentencing court may use to justify imposition of the aggravated upper-base term. (Rule 421(b)(4), Cal. Rules of Court.)

Section 1170, subdivision (b) and rule 441(b) and (c), California Rules of Court, prohibit the dual use of a single factor to both justify imposing the upper-base term and to enhance that term.

Simpson describes the trial court's action as the proscribed double use of a single fact. The Attorney General claims the fact of serving a previous prison term is separate from the fact of being on parole for…