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Name: People v. Moberly
Case #: F054954
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 08/19/2009

The dual use of facts to impose the aggravated sentence on a single offense and its accompanying and consecutive enhancement is not prohibited. In the course of an argument with his adult son, appellant shot and killed him. At trial, he was convicted of voluntary manslaughter and the jury found true the accompanying personal use of a firearm enhancement. Referencing the fact that appellant, an ex-felon, had possession of a firearm and ammunition, the trial court sentenced him to 21 years in prison consisting of 11 years for manslaughter plus 10 years for the enhancement. Appellant argued that this was an impermissible dual use of facts. The appellate court noted that the prohibited use of dual facts is limited to the following: 1) Penal Code section 1170, subdivision (b) (court may not impose the upper term by using the fact of any enhancement for which a sentence is imposed); 2) California Rules of Court, rule 4.420(d)( fact that is an element of the crime upon which punishment is imposed may not be used to impose the greater term); and 3) the court cannot rely on the same fact to impose the upper term and a consecutive sentence (People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12.). Rejecting appellant’s reliance on a footnote in People v. Velasquez (2007) 152 Cal.App.4th 1503, the appellate court found that because the sentence imposed did not fall within any of the limitations, it was authorized, and, in relevant part, affirmed.