People v. Henry
| Decision Date | 31 December 1970 |
| Docket Number | Cr. 5803 |
| Citation | 14 Cal.App.3d 89,91 Cal.Rptr. 841 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Graham S. HENRY, Defendant and Appellant. |
Edsel Haws and Michael Franchetti, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.
Defendant appeals from judgment, after jury verict, convicting him of first degree robbery (Pen.Code, § 211) and finding that he was armed with a deadly weapon at the time of the commission of the offense. 1
Defendant's sole contention is that the imposition of the additional penalty for first degree robbery prescribed by Penal Code, section 12022.5, additional to the penalty provided by section 211, constitutes double jeopardy and double punishment.
As defendant does not attack the sufficiency of the evidence to support the finding by the jury that he was guilty of robbing the Kentucky Fried Chicken in Sacramento on December 20, 1969, while armed with a deadly weapon within the meaning of section 12022.5 of the Penal Code, it is unnecessary to detail the evidence.
Section 211 of the Penal Code defines the offense of robbery. Section 211a prescribes that if the robbery is perpetrated by a person armed with a dangerous or deadly weapon, it is robbery of the first degree. Section 213 provides in pertinent part that first degree robbery is punishable by imprisonment in the state prison for not less than five years, while second degree robbery is punishable by imprisonment therein for not less than one year.
Section 12022.5 provides in pertinent part: 'Any person who uses a firearm in the commission * * * of a robbery * * * shall, in addition to the punishment prescribed for the crime of which he has been convicted, be punished by imprisonment in the state prison for a period of not less than five years. Such additional period of imprisonment shall commence upon expiration or other termination of the sentence imposed for the crime of which he is convicted and shall not run concurrently with such sentence.
'* * *
'This section shall apply even in those cases where the use of a weapon is an element of the offense.'
Defendant contends primarily that section 12022.5, providing additional punishment for use of a firearm in a robbery, provides a lesser offense included within the offense of first degree robbery, and that constitutional guarantees of double jeopardy forbid conviction of both. The fallacy of this contention is that section 12022.5 does not prescribe an offense. The question of double jeopardy arises only where there is multiple prosecution for the same offense. (People v. Douglas (1966) 246 Cal.App.2d 594, 597, 54 Cal.Rptr. 777; see In re Shull (1944) 23 Cal.2d 745, 749 146 P.2d 417; People v. Floyd (1969) 71 Cal.2d 879, 881, 80 Cal.Rptr. 22, 457 P.2d 862.) Section 12022.5 merely provides additional punishment for an offense in which a firearm is used. Moreover, for double jeopardy to serve as a bar to a prosecution a necessarily included offense to a crime for which defendant was already convicted, acquitted or once placed in jeopardy on an accusatory pleading must again be charged in a new accusatory pleading. (Pen.Code, § 1023; People v. Berutko (1969) 71 Cal.2d 84, 95, 77 Cal.Rptr. 217, 453 P.2d 721.) Only one accusatory pleading is involved in this case.
Nor has defendant received double punishment under the terms of section 654 of the Penal Code, which provides in pertinent part: 'An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.'
People v. Floyd, supra, 71 Cal.2d at page 883, 80 Cal.Rptr. 22, 457 P.2d 862, held that since the fact of being armed is essential to the conviction of first degree robbery, section 12022, which provides for additional punishment where a person commits a felony while armed with a certain type of firearm, was inapplicable. However, in 1969 the Legislature, obviously to overcome the effect of People v. Floyd and the other cases based on it, enacted section 12022.5, stating 'This section shall apply even in those cases where the use of a weapon is an element of the offense.'
The...
To continue reading
Request your trial
-
People v. McGreen
...Orr states that its holding is a "logical consequence" (43 Cal.App.3d at p. 673, 117 Cal.Rptr. 738) of the rule in People v. Henry (1970) 14 Cal.App.3d 89, 91 Cal.Rptr. 841. In Henry the defendant was charged with and convicted of first degree robbery and with using a gun in the commission ......
-
People v. Wolcott
...168, 176, 123 Cal.Rptr. 576; People v. Henderson (1972) 26 Cal.App.3d 232, 237, fn. 4, 102 Cal.Rptr. 670; People v. Henry (1970) 14 Cal.App.3d 89, 92, 91 Cal.Rptr. 841.) Relying on such language, the majority of Court of Appeal decisions have held "that an allegation of firearm use for purp......
-
People v. Gilliam
...itself, prescribe an offense but merely provides an additional punishment for an offense in which a firearm is Used (People v. Henry, 14 Cal.App.3d 89, 92, 91 Cal.Rptr. 841) even though the use of the weapon is an element of the offense charged. (People v. Hayden, 30 Cal.App.3d 446, 450, 10......
-
People v. Benjamin
...is used and is a legislatively mandated method of requiring and providing for such penalty. It was so held in People v. Henry (1970) 14 Cal.App.3d 89 (91 Cal.Rptr. 841). We now further hold, as a logical consequence of this rule, that an allegation of firearm use for purposes of Penal Code ......