Harold Dean May v. George W. Sumner, Warden

Appellant, Harold Dean May, was convicted in 1976 of two counts of first degree robbery in California state court. First degree robbery is defined to include robbery by a person “armed with a dangerous or deadly weapon.” Cal. Penal Code § 211a. His punishment on each count was enhanced by an additional term pursuant to Cal. Penal Code § 12022.5 because the jury found that he used a firearm during the commission of both crimes.

In this appeal from the denial of his petition for habeas corpus, he challenges the enhancement on double jeopardy grounds. He contends that since he was first convicted of robbery with a dangerous or deadly weapon and then received an additional sentence for using a firearm, he has been punished twice for the same act in violation of the double jeopardy clause. We affirm.

Appellant’s claim rests upon language in Simpson v. United States, 435 U.S. 6 , 98 S.Ct. 909 , 55 L.Ed.2d 70 (1978). Simpson held that when Congress enacted statutes creating two separate offenses, one for bank robbery with a “dangerous weapon” and the other for committing a felony with a firearm, Congress did not intend conviction and punishment under both. See also Busic v. United…