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What Are the Sentencing Rules Against Dual Use of Facts?

As a general rule, a judge sentencing someone cannot use the one fact to support two separate aggravating factor sentence enhancements. However, the rules are not entirely clear on this issue, as a crime can certainly have multiple aggravating factors, each meriting a sentencing enhancement. See People v. Scott (1994) 9 Cal. 4th 331, 350, n12, 36 Cal. Rptr. 2d 627.
The Gist of this Article: Double jeopardy principals forbid a judge from using one fact (especially a fact that is an element of the crime) to support two sentence enhancements, or a upper-term sentence and relies on the same fact for a consecutive term sentence or a sentence enhancement.
Scott held that the failure of trial counsel to object to dual use issues waived the issue on appeal. 9 Cal. 4th at 353. On appeal, however, any one factor is sufficient to sustain the trial court’s decision. Consequently, whenever a judge relies on more than one aggravating factor, dual use error is likely harmless. See People v. Coleman (1989) 48 Cal.3d 112, 166, 255 Cal. Rptr. 813.
There are two express rules against dual use of a fact:
  1. A judge may not impose an upper term by using the fact of any enhancement on which sentence is imposed, nor may it impose an upper term by using any fact used to justify consecutive sentences. Penal Code § 1170(b), see Coleman, supra, 48 Cal. 3d at 164; People v. Fernandez (1990) 226 Cal. App. 3d 669, 680, 276 Cal. Rptr. 631.
  2. A judge may not impose consecutive rather than concurrent sentences on the basis of a fact used to impose the upper term, a fact used to otherwise enhance the defendant’s prison sentence (e.g., a specific (conduct) enhancement), or a fact that is an element of the crime. Cal. Rules of Ct. 4.425(b), see Coleman, supra, 48 Cal. 3d at 163; People v. Barker (1986) 182 Cal. App. 3d 921, 940, 227 Cal. Rptr. 578.
Note that by its very terms, Penal Code § 12022.5 (personal use of a firearm) can be used to enhance a conviction of assault with a firearm in violation of Penal Code § 245. Penal Code § 12022.5(d).
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Theoretically, however, apart from these two express restrictions, repeated use of the same fact should be allowed. See People v. Vega (1990) 224 Cal. App. 3d 506, 513, 273 Cal. Rptr. 684, disapproved on other grounds in People v. McClananhan (1992) 3 Cal. 4th 860, 872 n6, 12 Cal. Rptr. 3d 719.
In practice, the courts of appeal have created the following dual use rules:
  1. An element of a crime may not be used to impose an upper base term for that crime. Cal. Rules of Ct. 4.420(d); People v. Marshall (1987) 196 Cal. App. 3d 1253, 1259, 242 Cal. Rptr. 391.
  2. An element of a crime may not be used as a factor in denying probation. People v. Parrott (1986) 179 Cal. App. 3d 1119, 11125, 225 Cal. Rptr. 293.
Note that in People v. Calhoun (2007) 40 Cal.4th 398, the California Supreme Court held that it was proper for the trial court judge to sentence the defendant in a vehicular manslaughter case to two upper terms on the ground that there were multiple victims even though there was only one victim per count. The court held that by finding the defendant guilty on multiple counts, the jury necessarily found that there were multiple victims.
The same fact may justify making numerous terms consecutive to each other. People v. Coulter (1989) 209 Cal. App. 3d 506, 516, 257 Cal. Rptr. 391. That same facts may also justify making terms consecutive and choosing full consecutive sentences under Penal Code § 667.6(c). Separate statements of reasons for the two sentencing choices should be given. People v. Huber (1986) 181 Cal. App. 3d 601, 628, 227 Cal. Rptr. 113.
Beyond these rules, as one can anticipate, the issue becomes whether the same fact is really being used twice. Numerous disputes arise in connection with the enhancements under Penal Code § 667(a) and § 667.5(b).
Enhancing under both former Penal Code §§ 667 (now Penal Code § 667(a)) and 667.5(b) for the identical prior conviction was prohibited in People v. Jones (1993) 5 Cal. 4th 1142, 22 Cal. Rptr. 2d 753.
For more information about sentencing rules, please click on the following articles:
  1. Drug Dealer Convicted of Manslaughter Can Be Sentenced for Other Charge for Great Bodily Injury Enhancement.
  2. May A Sentence Enhancement Be Applied Twice on the Same Defendant for Acts on the Same Victim in the Same Day?
  3. Enhanced Sentence Upheld on Appeal for Sex Crime Defendant Who Already Was a Penal Code § 290 Registrant.
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