People v. Smith

Appellant was convicted after jury trial of robbery (Pen. Code, § 211) with the use of a firearm (§ 12022.5). The trial court sentenced appellant to a four-year upper base prison term with a two-year firearm use enhancement. On appeal from the judgment, appellant’s sole contention is that the trial court used the same fact as a basis for the upper term and for a firearm use enhancement.

At the sentencing hearing, the trial court stated the following facts and reasons for the sentence: “The Court: The planning of the crime indicates that it was obviously premeditated. As I indicated heretofore Mr. Gong lost a large sum of money, fifteen thousand three hundred dollars. Defendant was on probation in Municipal Court at the time the crime was committed. The fact that he cocked a pistol is a circumstance in aggravation to this department. So the aggravated term will be selected by the court, obviously cannot be granted probation for the seriousness of the crime. The aggravated term is picked by reason of what the court has stated in the record of four years. It’s enhanced by the use of the weapon within the meaning of Penal Code Section 12022.5. Two additional years. Which…