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Name: People v. Gonzalez
Case #: G025767
Court: CA Court of Appeal
District 4 DCA
Division: 3
Citation: 97 Cal.App.4th 1087
Summary

Gonzalez and Pano kidnapped Sosa and pointed a gun at him while they drove him to Los Angeles. They also took his jewelry and wallet. They were convicted of robbery, kidnap, and carjacking, and received the aggravated term for the kidnap based solely on their use of the gun. They also received mandatory 10-year sentence for using a firearm pursuant to Penal Code section 12022.53(b). On appeal, they argued that this was an impermissible use of dual facts. Respondent argued waiver, since there had been no objection at sentencing. Here, the appellate court reversed and remanded for resentencing. The record does not show that the defendants were apprized of the intended sentence or that the court intended to rely on the gun use to aggravate the sentence. Nor did the probation report list the use of the gun as an aggravating circumstance. Under these circumstances the Scott waiver rule does not apply.

Opinion Date: 04/19/2002