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People v. Mustafaa

California Court of Appeal · D018683 · 1994-02-23 · Published · 22 Cal. App. 4th 1305 · 28 Cal. Rptr. 2d 172 · 94 Cal. Daily Op. Serv. 1369 · 93 Daily Journal DAR 2313 · 1994 Cal. App. LEXIS 156

The PEOPLE, Plaintiff and Respondent, v. VERNON F. MUSTAFAA, Defendant and Appellant

Area
criminal
Panel
Froehlich (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:30Z · confidence high

The trial court sentenced the defendant to a total term of 17 years and 4 months by imposing concurrent terms for the underlying robbery convictions but consecutive terms for the attached personal firearm-use enhancements. The Court of Appeal affirmed the judgment but remanded for resentencing, holding that the trial court lacked jurisdiction to separate enhancements from their underlying offenses and that the sentence for the ex-felon gun possession enhancement violated Section 654.

Ruling reviewedStandardThe courtThe model
Imposition of consecutive terms for personal firearm-use enhancements (§ 12022.5, subd. (a)) while imposing concurrent terms for the underlying robbery convictions.
“In separating the felony and its attendant enhancement by imposing a concurrent term for the felony conviction and a consecutive term for the enhancement the court fashioned Mustafaa’s sentence in an unauthorized manner under the sentencing procedure.”
de novoerroragree with court
agree with court
Imposition of a consecutive term for being a convicted violent ex-felon in possession of a firearm (§ 12021.1, subd. (a)) based on the same conduct as the personal gun-use enhancement in count V.
“Because there was no stipulation that the plea was based on the preliminary hearing or police reports, the sentence under section 12021.1, subdivision (a) violates section 654’s proscription against multiple punishments for the same act or omission.”
de novoerroragree with court
agree with court
Waiver of review for failure to object to the sentencing court's reasons for imposing an upper term.
“We agree with the view that a defendant waives review of error, such as a sentencing court’s reasons or asserted lack of reasons for imposing an upper or consecutive term, by failing to object at the time of sentencing.”
de novocorrectagree with court
agree with court

Authorities

  • relied: People v. Neal (1993) 19 Cal.App.4th 1114 — A defendant waives review of sentencing errors by failing to object, but an unauthorized sentence exceeds the court's jurisdiction and may be reviewed later.
  • relied: People v. Scott (1993) 21 Cal.App.4th 383 — Failure to object at sentencing waives review of the court's reasons for imposing an upper or consecutive term.
  • relied: People v. Serrato (1973) 9 Cal.3d 753 — An unauthorized sentence is subject to being set aside and is no bar to the imposition of a proper judgment thereafter, even if more severe.
  • relied: People v. Perez (1979) 23 Cal.3d 545 — The waiver doctrine does not apply to questions involving Penal Code section 654.

The appellate opinion: sound — The opinion correctly identifies that enhancements under § 12022.5 attach to the underlying offense and cannot be imposed consecutively while the underlying offense is concurrent, as this exceeds the court's jurisdiction. It also correctly applies the double jeopardy exception for unauthorized sentences and the Section 654 prohibition against multiple punishments for the same act.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence medium

After Mustafaa pleaded guilty to three armed robberies with personal firearm-use enhancements and a felon-in-possession count, the trial court imposed 17 years 4 months, running the robbery terms in counts I and V concurrently while running their attached section 12022.5 enhancements consecutively. The Court of Appeal held this split was an unauthorized sentence not subject to waiver, affirmed the judgment but remanded for resentencing with a double-jeopardy cap at the original aggregate term, and noted that the consecutive section 12021.1 term appeared to violate section 654 on the record of the plea.

Ruling reviewedStandardThe courtThe model
Imposing concurrent terms for the robbery convictions in counts I and V while imposing consecutive terms for the personal gun-use enhancements attached to those counts
“In separating the felony and its attendant enhancement by imposing a concurrent term for the felony conviction and a consecutive term for the enhancement the court fashioned Mustafaa’s sentence in an unauthorized manner under the sentencing procedure.”
de novoerror (statutory interpretation)agree with court
Section 12022.5(a) by its terms imposes the enhancement 'in addition and consecutive to the punishment prescribed for the felony,' and section 1170.1(a) builds subordinate terms only from consecutively imposed felony terms plus their attached enhancements; the statutory text supports the conclusion that an offense-specific enhancement cannot be detached from its underlying count and run as a freestanding subordinate term.
Whether Mustafaa waived appellate review of the sentencing error by failing to object at sentencing (Attorney General's waiver argument)
“However, fashioning a sentence in a manner which is unauthorized by law exceeds the jurisdiction of the court and may be the subject of later review even though no objection was made in the trial court.”
de novoerroragree with court
The court correctly distinguished discretionary sentencing choices (reasons for upper or consecutive terms), which are forfeited absent objection under Neal and Scott, from a sentence structured in a way the law does not permit, which Neal and Welch treat as reviewable without objection; this distinction is consistent with the Supreme Court's later approval of the same framework.
Selection of the upper term for the section 12022.5 enhancement on count III based on the fact that Mustafaa fired the gun, despite the court also citing that fact for a consecutive term
“The court’s reference to this factor as a basis for a consecutive term does not invalidate its use as a reason for the upper term.”
abuse of discretioncorrectunsure
Firing the weapon is a valid aggravating fact for a gun-use enhancement, and the court also held the claim forfeited for failure to object under Scott and Neal; the opinion treats the point as dictum since it remands for full resentencing, and the record quoted is thin on how the factor was actually used for the consecutive term.
Imposition of a consecutive eight-month term for felon in possession of a firearm (§ 12021.1) in addition to the count V robbery and its gun-use enhancement
“Because there was no stipulation that the plea was based on the preliminary hearing or police reports, the sentence under section 12021.1, subdivision (a) violates section 654’s proscription against multiple punishments for the same act or omission.”
unclearerror (law misapplied)unsure
The court's conclusion is defensible given that the plea colloquy tied the possession only to the robbery incident, but the opinion compares the possession count to the enhancement rather than to the robbery offense, does not cite People v. Bradford, which governs when felon-in-possession is punishable separately from an armed offense, and does not apply the usual deference to a trial court's implied finding of separate objectives; the facts also show possession at arrest that might have supported separate punishment on a fuller record.

Authorities

  • relied: People v. Neal (1993) 19 Cal.App.4th 1114 — Failure to object forfeits challenges to a sentencing court's stated reasons, but an unauthorized sentence may be reviewed on appeal without objection.
  • relied: People v. Scott (1993) 21 Cal.App.4th 383 — A defendant waives review of claimed errors in the court's reasons for discretionary sentencing choices by failing to object at sentencing.
  • relied: People v. Price (1986) 184 Cal.App.3d 1405 — California's double jeopardy clause generally bars imposing a greater sentence on remand after a defendant's successful appeal.
  • relied: People v. Serrato (1973) 9 Cal.3d 753 — An unauthorized sentence may be set aside and replaced with a proper judgment even if more severe than the original.
  • relied: People v. Fosselman (1983) 33 Cal.3d 572 — Overruled Serrato on other grounds; cited only for that history.
  • relied: In re Ricky H. (1981) 30 Cal.3d 176 — Failure to characterize an offense and apply a permissible term of confinement produces an unauthorized sentence.
  • relied: In re Sandel (1966) 64 Cal.2d 412 — Imposing concurrent terms where the statute mandates consecutive terms is an unauthorized sentence correctable later.
  • relied: People v. Irvin (1991) 230 Cal.App.3d 180 — Failure to either strike or impose an enhancement results in an unauthorized sentence.
  • relied: People v. Welch (1993) 5 Cal.4th 228 — Unauthorized sentences are an exception to the general forfeiture rule for unraised sentencing claims.
  • relied: People v. Perez (1979) 23 Cal.3d 545 — Section 654 claims are not waived by failure to raise them in the trial court.
  • missed: People v. Bradford (1976) 17 Cal.3d 8 — Section 654 bars separate punishment for felon in possession of a firearm where the possession was incidental to and part of the same transaction as the armed offense, but permits it where possession was antecedent and separate.

The appellate opinion: sound with gaps — The core holding that an offense-specific enhancement cannot be detached from its underlying count and run consecutively while the count runs concurrently is well grounded in the text of sections 12022.5 and 1170.1, and the waiver analysis correctly tracks Neal, Scott and Welch. The opinion is thinner on the remaining points: its double jeopardy distinction between an 'unauthorized manner' and an illegal total is asserted rather than reasoned against Serrato, and its section 654 discussion compares the possession count to an enhancement and omits controlling Supreme Court authority such as Bradford.

How this analysis was made · dispute it

Opinion

*1309 Opinion

counts of robbery (Pen. Code, 1 § 211) while personally armed with a firearm (§ 12022.5, subd. (a)) and admitted that he had been three times in possession of a firearm while a convicted ex-felon (§ 12021.1, subd. (a)). He also admitted suffering prior felony convictions of rape while armed with a firearm (§§ 261, 12022, subd. (a), 667.5, subd. (a)), robbery (§§ 211, 667.5, subd. (b)) and unlawful taking of a vehicle .(Veh. Code, § 10851, subd. (a), § 667.5, subd. (b)). At the time of his plea Mustafaa stated he understood that his maximum penalty could be 25 years in prison and a $10,000 fine. The court sentenced him to a total term of 17 years, 4 months. Mustafaa appeals, claiming sentencing error.

Factual and Procedural Background

About 4 a.m. on August 31, 1992, Mustafaa, displaying a gun, robbed a 7-Eleven store on La Jolla Boulevard.

At 7 p.m. on September 5, 1992, Mustafaa entered the Hillcrest Furniture Store, asked salesman Sau Vo about financing, then pulled out a gun and asked for money. Vo gave Mustafaa about $300 from the store, some of his own money and his credit cards. When Vo said he had no more money, Mustafaa yelled at him, then Vo ran and Mustafaa fired a shot.

At 6 a.m. on September 6, 1992, Mustafaa robbed the clerk at Phil’s Chevron Foodmart, then fled, leaving his wallet behind. Mustafaa was arrested later the same day in possession of a handgun.

Discussion

Mustafaa asserts the trial court erred in imposing consecutive terms for the gun-use enhancements in counts I and V, while imposing concurrent terms for the robbery convictions in the same counts. He is correct.

The sentencing court selected as the principal term the eight-year term consisting of the three-year midterm for the robbery conviction in count III plus the five-year upper term personal gun-use enhancement attached to that count. The court then considered the terms it had imposed for the convictions in counts I and V and determined to impose the terms for these robbery convictions concurrently, but to impose the terms for the corresponding personal gun-use enhancements attached to those counts consecutively. This was error.

*1310 Enhancements are defined in California Rules of Court, rule 405(c) as additional terms of imprisonment added to the base term. Enhancements are of two types: those which specifically attach to the term of imprisonment imposed for an underlying offense and those which add generally to the aggregate term of imprisonment. A finding under section 12022.5, subdivision (a) that the defendant personally used a firearm in the commission of a felony is of the former type. An enhancement for personal gun use is imposed in addition and consecutive to the punishment for the specific felony of which the defendant has been convicted. Section 12022.5, subdivision (a) states in pertinent part: “. . . any person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for three, four or five years, unless use of a firearm is an element of the offense of which he or she was convicted.” (Italics added.)

The procedure for sentencing a person convicted of two or more felonies does not contemplate imposing an enhancement separately from the underlying crime. Section 1170.1, subdivision (a) directs that when a court imposes consecutive terms of imprisonment for convictions of two or more felonies, the aggregate term of imprisonment for all of the convictions shall be the sum of the principal term, the subordinate term and any additional term imposed under the enhancements which add generally to the aggregate term of imprisonment: section 667, 667.5, 667.6 or 12022.1 and Health and Safety Code section 11370.2. The principal term consists of the greatest term imposed including the enhancements which attach to that particular offense: section 667.15, 667.8, 667.85, 12022, 12022.2, 12022.3, 12022.4, 12022.5, 12022.55, 12022.6, 12022.7, 12022.75, 12022.8 or 12022.9, or Health and Safety Code section 11370.4 or 11379.8. There are two types of subordinate terms. A subordinate term for each consecutive offense which is not a violent felony consists of one-third the midterm for each conviction for which a consecutive term has been imposed excluding any enhancements. The subordinate term for a violent felony offense includes one-third the midterm of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed plus one-third any enhancement imposed under section 667.15, 667.8, 667.85, 12022, 12022.2, 12022.4, 12022.5, 12022.55, 12022.7, 12022.75 or 12022.9.

Subordinate terms include only those terms for felony convictions which have been imposed consecutively; subordinate terms for violent felonies include the terms plus their attached enhancements which have been imposed consecutively. Under the sentencing scheme an enhancement may not be imposed as a subordinate term on its own.

*1311 Mustafaa pleaded guilty to three counts of robbery and admitted that he personally used a firearm during each robbery. The personal gun-use enhancements to which he admitted were not separate crimes and cannot stand alone. Each one is dependent upon and necessarily attached to its underlying felony. In separating the felony and its attendant enhancement by imposing a concurrent term for the felony conviction and a consecutive term for the enhancement the court fashioned Mustafaa’s sentence in an unauthorized manner under the sentencing procedure. We must therefore remand for resentencing.

The Attorney General argues that by failing to object Mustafaa waived review of this issue on appeal. We agree with the view that a defendant waives review of error, such as a sentencing court’s reasons or asserted lack of reasons for imposing an upper or consecutive term, by failing to object at the time of sentencing. (People v. Neal (1993) 19 Cal.App.4th 1114 [24 Cal.Rptr.2d 129]; People v. Scott (1993) 21 Cal.App.4th 383, 394-403 [26 Cal.Rptr.2d 501].) However, fashioning a sentence in a manner which is unauthorized by law exceeds the jurisdiction of the court and may be the subject of later review even though no objection was made in the trial court. (People v. Neal, supra, 19 Cal.App.4th at p. 1120.)

The prohibition against double jeopardy, California Constitution, article I, section 15, generally prohibits the court from imposing a greater sentence on remand following an appeal. (People v. Price (1986) 184 Cal.App.3d 1405, 1408 [229 Cal.Rptr. 550].) In People v. Serrato (1973) 9 Cal.3d 753, 764 [109 Cal.Rptr. 65, 512 P.2d 289] (overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1 [189 Cal.Rptr. 855, 659 P.2d 1144]), our Supreme Court set out an exception to this general rule as follows: “The rule is otherwise when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.” Examples of unauthorized sentences include the failure to characterize an offense and apply a permissible term of confinement (In re Ricky H. (1981) 30 Cal.3d 176, 190-192 [178 Cal.Rptr. 324, 636 P.2d 13]); the imposition of concurrent terms when the statute required consecutive terms (In re Sandel (1966) 64 Cal.2d 412, 418 [50 Cal.Rptr. 462, 412 P.2d 806]); and the failure to strike or impose an enhancement (People v. Irvin (1991) 230 Cal.App.3d 180, 192-193 [281 Cal.Rptr. 195]; see People v. Welch (1993) 5 Cal.4th 228, 235 [19 Cal.Rptr.2d 520, 851 P.2d 802]).

In Mustafaa’s case the rule against double jeopardy applies because the court imposed a legal aggregate sentence, only fashioning it in an *1312 unauthorized manner. The court’s error in separating the convictions from their attendant enhancements, though unauthorized by law, does not make the total sentence illegal. On remand the court may not impose a total sentence more severe than the sentence originally imposed.

Because we remand for resentencing, we need not discuss Mustafaa’s other claims of However, we note that, contrary to Mustafaa’s assertion, the court based the upper term for the personal firearm-use enhancement attached to count III on the valid factor that Mustafaa fired the gun. The court’s reference to this factor as a basis for a consecutive term does not invalidate its use as a reason for the upper term. We reiterate our view, however, that review of this issue is waived by the failure to object in the trial court. (People v. Scott, supra, 21 Cal.App.4th at pp. 394-403; People v. Neal, supra, 19 Cal.App.4th 1114.)

We also observe that the consecutive eight-month term imposed for Mustafaa’s being a convicted violent ex-felon in possession of a firearm (§ 12021.1, subd. (a)) appears to be based on the same conduct as that on which the term for the personal gun-use enhancement in count V (§ 12022.5, subd. (a)) was based. At the change of plea hearing the court referred to Mustafaa’s gun possession only as part of the robbery incident and not to his gun possession at the time of his arrest. Because there was no stipulation that the plea was based on the preliminary hearing or police reports, the sentence under section 12021.1, subdivision (a) violates section 654’s proscription against multiple punishments for the same act or omission. 2

Disposition

The judgment is affirmed. The cause is remanded for resentencing in accordance with the views expressed in this opinion. On remand, the court shall not impose a sentence longer than 17 years, 4 months. After resentenc-. ing, the trial court shall prepare a new abstract of judgment and send a certified copy thereof to the Department of Corrections.

Kremer, P. J., and Nares, J., concurred.
1

All statutory references are to the Penal Code unless otherwise specified.

2

The waiver doctrine does not apply to questions involving section 654. (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3 [153 Cal.Rptr. 40, 591 P.2d 63].)

Cites, in this corpus

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