Whitehouse

This appeal poses as its major question: where two enhancements arising from the same offense are alleged and proved, may the sentencing court impose only the higher consecutive to the base term and, in addition, aggravate the base term by utilizing the facts underlying the nonimposed true finding? We conclude such a procedure is proper where facts used to aggravate are not necessarily included in the imposed enhancement.

Factual Background

Michael Whitehouse was charged in three informations with unrelated offenses: One charging nine counts of forgery; another, arson of an automobile; and a third, attempted murder (count I), assault with a deadly weapon upon a police officer investigating the forgeries (count II), assault with a deadly weapon (count III) and being an ex-felon in possession of a concealable firearm (count IV). It was alleged he personally used a firearm within the meaning of Penal Code 1 sections 1203.06, subdivision (a)(l)(i), and 12022.5 (counts I, II, III), and inflicted great bodily injury within the meaning of section 12022.7 (counts I, II). Two prior felony convictions were also alleged.

*482 Plea bargaining resulted in dismissal of all but one…

I cannot quarrel with the logic used by the majority in resolving the major question in the sentencing puzzle created by the facts of this case. Unfortunately, logic and reason are only of limited value in this area. When the text of the relevant provisions of the statutes and rules are examined I believe there is another reasonable interpretation more favorable to the defendant, and since that interpretation must be adopted (In re Tartar (1959) 52 Cal.2d 250, 256-257 [ 339 P.2d 553 ]), I conclude the use of a firearm, under section 12022.5, may not be used to aggravate the base term imposed for the assault with a deadly weapon (§ 245, subd. (b)).

Defendant draws the following scenario from the determinate sentencing law (DSL) and the Sentencing Rules For The Superior Court.

After he was convicted of section 245, subdivision (b), with section 12022.5 and section 12022.7 enhancements, section 1170.1, subdivision (d) governed his sentencing. That provision requires the imposition of the greatest enhancement unless stricken for circumstances in mitigation under section 1170.1, subdivision (g). Consequently, the court had *487 to impose an additional three years for the infliction…

This appeal poses as its major question: where two enhancements arising from the same offense are alleged and proved, may the sentencing court impose only the higher consecutive to the base term and, in addition, aggravate the base term by utilizing the facts underlying the nonimposed true finding? We conclude such a procedure is proper where facts used to aggravate are not necessarily included in the imposed enhancement.

Michael Whitehouse was charged in three informations with unrelated offenses: One charging nine counts of forgery; another, arson of an automobile; and a third, attempted murder (count I), assault with a deadly weapon upon a police officer investigating the forgeries (count II), assault with a deadly weapon (count III) and being an ex-felon in possession of a concealable firearm (count IV). It was alleged he personally used a firearm within the meaning of Penal Code [1] sections 1203.06, subdivision (a)(1)(i), and 12022.5 (counts I, II, III), and inflicted great bodily injury within the meaning of section 12022.7 (counts I, II). Two prior felony convictions were also alleged.

Plea bargaining resulted in dismissal of all but one count of…