Opinion
McCOMB, J.
Defendant appeals from a judgment of conviction of first degree robbery, in the commission of which a firearm was used.
Facts: The robbery of which defendant was convicted was committed December 15, 1972. His trial commenced on June 5, 1973; and on July 10, 1973, he was sentenced to the prescribed term (five years to life (Pen. Code, § 213, subd. I)),1 which was ordered to run consecutively to any prior incompleted sentences.
It was also found that defendant had used a firearm, within the meaning of section 12022.5. That section provides that upon conviction of certain enumerated felonies (including robbery) in which a firearm is used, the defendant “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 term of imprisonment not to run concurrently with his sentence for the underlying offense. Upon a second such conviction under like circumstances, the additional minimum term is 10 years and upon a third, 15 years, and it is required that those terms of additional imprisonment run consecutively. Upon a fourth or subsequent convic[794]*794tion, the defendant may be imprisoned for life or not less than 25 years, in the discretion of the court.2
Several months earlier, defendant had been convicted, in separate trials, of two other robberies, committed on December 9, 1972, and December 17, 1972. In each of those robberies the jury also found that defendant had used a firearm. The sentence for the December 9 robbery was ordered to run concurrently with any prior incompleted sentences. The sentence for the December 17 robbery was ordered to run concurrently with the sentence imposed on the December 9 robbery and with any prior incompleted sentences. The sentence imposed in the case at bench was ordered to run consecutively to any prior incompleted sentences.
Thus, for the three robberies defendant became subject to three five-year-to-life terms, two of which were ordered to run concurrently and one consecutively, making a minimum of ten years therefor. Because he had used firearms, defendant became subject to additional consecutive punishment by reason of section 12022.5. As a result, the minimum .terms to which defendant is subject because of his commission of the .three robberies exceed ten years.
Section 3024, subdivision (d), provides that “the minimum term of sentence and imprisonment . . . [f]or a person convicted at one trial of more than one felony, and upon whom are imposed cumulative or consecutive sentences the aggregate of the minimum terms of which exceed 10 years, [shall be] 10 years.” Defendant contends that if he had been convicted of the 3 robberies at a single trial, he would have been entitled to the benefit of section 3024, subdivision (d), as a result of which his minimum term would have been 10 years, and that his minimum term for the offenses of which he was convicted at multiple [795]*795trials, together with the additional terms prescribed by section 12022.5, because he used a firearm in the commission of the offenses, must be limited to 10 years, or he will have been denied equal protection of the laws.
Questions: First. Does the 10-year limit in section 3024, subdivision (d), preclude imposition of the additional penalties prescribed by section 12022.5?
No. Section 3024, subdivision (d), by its terms limits to 10 years the minimum term of persons “convicted at one trial of more than one felony,” the aggregate minimum sentences for which exceed 10 years. This section is concerned with, and limited to, the subject of minimum sentences imposed for the multiple underlying felonies, and has no application whatever to the additional terms of imprisonment imposed for use of a firearm in the commission of the felonies enumerated in section 12022.5. The additional imprisonment prescribed by the latter section is not to be included in computing the aggregate minimum term under section 3024, subdivision (d). {People v. Williams, 42 Cal.App.3d 547, 549 [116 Cal.Rptr. 894].)
As pointed out in People v. Strickland, 11 Cal.3d 946, 961 [114 Cal.Rptr. 632, 523 P.2d 672], section 12022.5 does not define crimes or offenses, but merely increases the penalty to be imposed for the offenses enumerated therein when a firearm is used in their commission. (See also People v. Johnson, 38 Cal.App.3d 1, 10 [112 Cal.Rptr. 834] (hg. den.); People v. Henry, 14 Cal.App.3d 89, 92 [91 Cal.Rptr. 841] (hg. den.).)
Additional significant evidence of legislative intent is found in the provisions of section 12022.5, which, on their face, impose, in certain situations, an additional term of imprisonment in excess of the 10-year minimum limitation under section 3024, subdivision (d). The obvious purpose of section 12022.5 is to deter the use of firearms in the commission of violent crimes by prescribing additional punishment for each use. {People v. Chambers, 7 Cal.3d 666, 672 [102 Cal.Rptr. 776, 498 P.2d 1024]; People v. Williams, supra, 42 Cal.App.3d 547, 549.) To that end, the section expressly directs that increasingly severe punishment be imposed upon second, third, and fourth or subsequent convictions, namely, additional minimum terms of 10, 15 and 25 years respectively. These provisions for additional imprisonment, to commence only upon the termination of the sentence for the basic crime in which the defendant used a firearm, indicate that the Legislature did not intend [796]*796that the 10-year limitation of section 3024, subdivision (d), would apply to the terms of imprisonment compelled by section 12022.5. To hold otherwise would nullify a special statute intended and obviously designed to impose substantial additional punishment in aggravated circumstances, and would lead to totally incongruous and anomalous results which could not reasonably have been contemplated by the Legislature.
If the dissent’s interpretation were consistently applied, these additional terms of imprisonment could not be imposed where the prior offender commits two or more new offenses triable at a single trial. Thus, an interpretation of these sections which harmonizes them by restricting the application of section 3024, subdivision (d), to the underlying felonies promotes the clear legislative intent to impose substantial additional penalties for the Use of firearms.
The dissent (post, p. 805, fn. 5) concedes that its interpretation, if given uniform effect, would lead to unusual consequences. For example, the perpetrator of multiple felonies would be treated more leniently than a person convicted of only one offense, in situations where both offenders had suffered a prior conviction to which section 12022.5 applied. Furthermore, under the dissent’s construction, section 12022.5 would be applicable only to offenders who have committed but one new offense (§ 3024 being inapplicable), and to those less serious offenses carrying less severe minimum terms (so that the 10-year limitation is not exceeded). Nothing whatever, in the legislative history of the sections or elsewhere, indicates any intent to cause such inconsistent results.
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Opinion
McCOMB, J.
Defendant appeals from a judgment of conviction of first degree robbery, in the commission of which a firearm was used.
Facts: The robbery of which defendant was convicted was committed December 15, 1972. His trial commenced on June 5, 1973; and on July 10, 1973, he was sentenced to the prescribed term (five years to life (Pen. Code, § 213, subd. I)),1 which was ordered to run consecutively to any prior incompleted sentences.
It was also found that defendant had used a firearm, within the meaning of section 12022.5. That section provides that upon conviction of certain enumerated felonies (including robbery) in which a firearm is used, the defendant “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 term of imprisonment not to run concurrently with his sentence for the underlying offense. Upon a second such conviction under like circumstances, the additional minimum term is 10 years and upon a third, 15 years, and it is required that those terms of additional imprisonment run consecutively. Upon a fourth or subsequent convic[794]*794tion, the defendant may be imprisoned for life or not less than 25 years, in the discretion of the court.2
Several months earlier, defendant had been convicted, in separate trials, of two other robberies, committed on December 9, 1972, and December 17, 1972. In each of those robberies the jury also found that defendant had used a firearm. The sentence for the December 9 robbery was ordered to run concurrently with any prior incompleted sentences. The sentence for the December 17 robbery was ordered to run concurrently with the sentence imposed on the December 9 robbery and with any prior incompleted sentences. The sentence imposed in the case at bench was ordered to run consecutively to any prior incompleted sentences.
Thus, for the three robberies defendant became subject to three five-year-to-life terms, two of which were ordered to run concurrently and one consecutively, making a minimum of ten years therefor. Because he had used firearms, defendant became subject to additional consecutive punishment by reason of section 12022.5. As a result, the minimum .terms to which defendant is subject because of his commission of the .three robberies exceed ten years.
Section 3024, subdivision (d), provides that “the minimum term of sentence and imprisonment . . . [f]or a person convicted at one trial of more than one felony, and upon whom are imposed cumulative or consecutive sentences the aggregate of the minimum terms of which exceed 10 years, [shall be] 10 years.” Defendant contends that if he had been convicted of the 3 robberies at a single trial, he would have been entitled to the benefit of section 3024, subdivision (d), as a result of which his minimum term would have been 10 years, and that his minimum term for the offenses of which he was convicted at multiple [795]*795trials, together with the additional terms prescribed by section 12022.5, because he used a firearm in the commission of the offenses, must be limited to 10 years, or he will have been denied equal protection of the laws.
Questions: First. Does the 10-year limit in section 3024, subdivision (d), preclude imposition of the additional penalties prescribed by section 12022.5?
No. Section 3024, subdivision (d), by its terms limits to 10 years the minimum term of persons “convicted at one trial of more than one felony,” the aggregate minimum sentences for which exceed 10 years. This section is concerned with, and limited to, the subject of minimum sentences imposed for the multiple underlying felonies, and has no application whatever to the additional terms of imprisonment imposed for use of a firearm in the commission of the felonies enumerated in section 12022.5. The additional imprisonment prescribed by the latter section is not to be included in computing the aggregate minimum term under section 3024, subdivision (d). {People v. Williams, 42 Cal.App.3d 547, 549 [116 Cal.Rptr. 894].)
As pointed out in People v. Strickland, 11 Cal.3d 946, 961 [114 Cal.Rptr. 632, 523 P.2d 672], section 12022.5 does not define crimes or offenses, but merely increases the penalty to be imposed for the offenses enumerated therein when a firearm is used in their commission. (See also People v. Johnson, 38 Cal.App.3d 1, 10 [112 Cal.Rptr. 834] (hg. den.); People v. Henry, 14 Cal.App.3d 89, 92 [91 Cal.Rptr. 841] (hg. den.).)
Additional significant evidence of legislative intent is found in the provisions of section 12022.5, which, on their face, impose, in certain situations, an additional term of imprisonment in excess of the 10-year minimum limitation under section 3024, subdivision (d). The obvious purpose of section 12022.5 is to deter the use of firearms in the commission of violent crimes by prescribing additional punishment for each use. {People v. Chambers, 7 Cal.3d 666, 672 [102 Cal.Rptr. 776, 498 P.2d 1024]; People v. Williams, supra, 42 Cal.App.3d 547, 549.) To that end, the section expressly directs that increasingly severe punishment be imposed upon second, third, and fourth or subsequent convictions, namely, additional minimum terms of 10, 15 and 25 years respectively. These provisions for additional imprisonment, to commence only upon the termination of the sentence for the basic crime in which the defendant used a firearm, indicate that the Legislature did not intend [796]*796that the 10-year limitation of section 3024, subdivision (d), would apply to the terms of imprisonment compelled by section 12022.5. To hold otherwise would nullify a special statute intended and obviously designed to impose substantial additional punishment in aggravated circumstances, and would lead to totally incongruous and anomalous results which could not reasonably have been contemplated by the Legislature.
If the dissent’s interpretation were consistently applied, these additional terms of imprisonment could not be imposed where the prior offender commits two or more new offenses triable at a single trial. Thus, an interpretation of these sections which harmonizes them by restricting the application of section 3024, subdivision (d), to the underlying felonies promotes the clear legislative intent to impose substantial additional penalties for the Use of firearms.
The dissent (post, p. 805, fn. 5) concedes that its interpretation, if given uniform effect, would lead to unusual consequences. For example, the perpetrator of multiple felonies would be treated more leniently than a person convicted of only one offense, in situations where both offenders had suffered a prior conviction to which section 12022.5 applied. Furthermore, under the dissent’s construction, section 12022.5 would be applicable only to offenders who have committed but one new offense (§ 3024 being inapplicable), and to those less serious offenses carrying less severe minimum terms (so that the 10-year limitation is not exceeded). Nothing whatever, in the legislative history of the sections or elsewhere, indicates any intent to cause such inconsistent results. The necessary consequence of the dissent’s reasoning is that a provision intended and obviously designed to impose substantial additional punishment in aggravated circumstances would apply, ironically, only to the less serious offenses. This cannot have been the purpose of the legislation.
Therefore, since the additional punishment prescribed by section 12022.5 is not to be included in computing the minimum term under section 3024, subdivision (d), there is no merit to defendant’s contention that he has been denied equal protection. His increased minimum punishment results not from separate trials but from the use of a firearm in the commission of the robberies. Since two of his three five-year-to-life sentences were ordered to run concurrently, his minimum term for the underlying felonies is ten years, the same maximum minimum set by section 3024, subdivision (d).3
[797]*797Second. Did the trial court abuse its discretion in making defendant’s term consecutive to any prior incompleted terms?
No. Defendant contends that it is cruel or unusual punishment to make the sentence upon his third conviction of first degree robbery and the use of a "firearm incident thereto run consecutively to his two previous sentences, and he suggests that the trial court did so because he went to trial on the charge instead of pleading guilty.
In People v. Morgan, 36 Cal.App.3d 444 [111 Cal.Rptr. 548], it was held that imposition of the term prescribed by law for first degree robbery and the increased penalty for use of a firearm did not constitute cruel or unusual punishment. Moreover, except as provided in section 669 of the Penal Code with respect to sentences of life imprisonment, it is in the discretion of the trial court whether to make the sentence for the underlying offense run concurrently with, or consecutively to, any incompleted prior sentences. (Pen. Code, § 669; People v. Morris, 20 Cal.App.3d 659, 666 [97 Cal.Rptr. 817].) Defendant admits that the trial judge did not state any reason for ordering that his sentence run consecutively to any incompleted prior sentences; but he argues that since the district attorney, just before sentence was rendered, had urged such a sentence for that reason, it may be assumed that that was the basis for the trial judge’s decision. Such a conclusion would constitute unjustified speculation, and defendant has failed to establish that the trial judge acted improvidently.
Defendant also argues that because of the maximum minimum set by section 3024, subdivision (d), the trial court abused its discretion in making his five-year-to-life term consecutive to the two five-year-to-life terms previously imposed upon him, the latter two having been ordered to run concurrently. As hereinabove pointed out, however, his 10-year maximum minimum for the underlying felonies is within the limit set by section 3024, subdivision (d).
The judgment is affirmed.
[798]*798Clark, J., and Richardson, J., concurred.
Sullivan, J., concurred in the judgment.