1

Filed 2/10/14 P. v. Scarbrough CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

----

THE PEOPLE,

Plaintiff and Appellant,

v.

MICHAEL GILBERT SCARBROUGH,

Defendant and Appellant.

C072596

(Super. Ct. No. 111614)

Defendant Michael Gilbert Scarbrough was sentenced to 13 years in state prison

after being convicted of numerous felonies and misdemeanors resulting from several 

instances of domestic violence he perpetrated upon his live-in girlfriend. Defendant 

appeals, contending the trial court made improper dual use of his prior conviction for 

inflicting corporal injury at sentencing. We disagree with that contention.

The People also appeal, contending the trial court erroneously ordered the terms 

imposed for the first-charged felony and a felony defendant committed while released on 
2

bail to be served concurrently. We agree with the People’s contention and reverse the 

judgment and remand for resentencing.

FACTS AND PROCEEDINGS

We dispense with the recitation of the facts underlying defendant’s offenses as 

they are not necessary to the disposition of this appeal.

Defendant in this case was charged in Siskiyou County Superior Court in two 

separate cases, which were later consolidated. The consolidated information, filed on 

January 10, 2012, under case No. 111614, charged defendant, as follows: assault with a 

deadly weapon on October 12, 2011 (Pen. Code, § 245, subd. (a)(1); statutory references 

that follow are to the Penal Code) (count one); inflicting corporal injury on a spouse on 

October 12, 2011, having had a prior conviction for that same offense within the past 

seven years (former § 273.5, subds. (a) and (e)) (count two); inflicting corporal injury on 

a spouse on November 17, 2010, having had a prior conviction for that same offense 

within the past seven years (former § 273.5, subds. (a) and (e)) (count three);

misdemeanor violation of a court’s order of protection on October 12, 2011 (§ 166, subd. 

(c)(1)) (count four); and misdemeanor violation of a court’s order of protection on 

April 2, 2011 (§ 166, subd. (c)(1)) (count five). Defendant pled guilty to all counts and 

admitted the allegations. 

On November 15, 2012, the trial court sentenced defendant to 13 years in state 

prison, as follows: the middle term of four years for inflicting corporal injury on a 

spouse as charged in count two; a consecutive four years for the great bodily injury 

enhancement; a consecutive two years for the on-bail enhancement; three consecutive 

years for the prior prison terms; a concurrent middle term of four years for inflicting 

corporal injury on a spouse as charged in count three; and a consecutive three years for 

assault with a deadly weapon, stayed pursuant to section 654. 
3

DISCUSSION

I

Defendant’s Appeal

Defendant contends the trial court’s dual use of his prior conviction for inflicting 

corporal injury on a spouse to subject him to a higher sentencing triad and impose a oneyear prior prison term violates section 1170, subdivision (b). Inflicting corporal injury on 

a spouse normally carries a penalty of two, three or four years under former 

section 273.5, subdivision (a). If, however, a defendant has been convicted of that same 

offense within the previous seven years, the sentencing triad is elevated to two, four or 

five years. (Former § 273.5, subds. (a) and (e).) 

Section 1170, subdivision (b) bars the trial court from imposing the upper term 

“by using the fact of any enhancement upon which sentence is imposed under any 

provision of law.” Here, the trial court did not impose the upper term. Thus, 

section 1170, subdivision (b) has no application.

Nor does the use of defendant’s prior conviction for inflicting corporal injury on a 

spouse to subject him to a higher sentencing triad and to impose a one-year prior prison 

term violate section 654. Similar complaints have been raised and rejected by the 

Supreme Court in People v. Coronado (1995) 12 Cal.4th 145 and People v. Murphy

(2001) 25 Cal.4th 136. 

“A sentence enhancement is ‘an additional term of imprisonment added to the 

base term.’ ” (People v. Jefferson (1999) 21 Cal.4th 86, 101.) Application of the higher 

sentencing triad under former section 273.5, subdivision (e)(1), is not an enhancement, 

but an alternate sentencing scheme. Since former section 273.5, subdivision (e)(1) is not 

an enhancement, the prohibition of People v. Jones (1993) 5 Cal.4th 1142 against using a 

single prior conviction to support two enhancements is not applicable. As section 654 

does not apply to defendant’s status as a recidivist (People v. Price (1992) 4 Cal.App.4th 
4

1272, 1277; People v. Rodriguez (1988) 206 Cal.App.3d 517, 519), section 654’s 

prohibition against dual use of facts is equally inapplicable.

II

The People’s Cross-Appeal

The People contend the trial court erred in ordering the terms imposed for the firstcharged felony and the felony defendant committed while released on bail to be served 

concurrently. The trial court also neglected to impose sentence for the great bodily injury 

enhancement and two misdemeanor offenses. 

Section 12022.1 provides for an enhanced sentence when a defendant commits a 

felony while released on bail or his own recognizance after being charged with a previous 

felony. In such cases, the defendant “shall be subject to a penalty enhancement of an 

additional two years [in state prison], which shall be served consecutive to any other term 

imposed by the court.” (§ 12022.1, subd. (b).) Additionally, subdivision (e) provides 

that, if the defendant is sentenced to prison on the first-charged felony and convicted of 

the subsequently committed felony (or “secondary offense”), “any [state prison] sentence 

for the secondary offense shall be consecutive to the primary sentence.” The provisions

for consecutive terms set forth in section 12022.1 are mandatory and the failure to so 

impose the terms results in an unauthorized sentence. (See People v. Griffin (2005) 

128 Cal.App.4th 1112, 1119.)

Here, the trial court ordered the four-year term for the infliction of corporal injury 

on a spouse in count three to be served concurrently with the four-year term for the 

infliction of corporal injury on a spouse in count two. The terms must be imposed 

consecutively with the subordinate term consisting of one-third the middle term for that 

offense. (§ 1170.1, subd. (a); People v. Burnes (1990) 224 Cal.App.3d 1222, 1233.) 

Additionally, the trial court erroneously failed to impose sentences for the two 

misdemeanor counts and the great bodily injury enhancement. (See Cal. Rules of Court, 

rules 4.428 and 4.447.)
5

We agree with defendant that remand for resentencing is appropriate. The trial 

court expressly stated that sentencing involved “challenging” decisions in some respects 

and it was “persuaded that the 13-year term is overall the most appropriate and will best 

serve the ends of justice for this particular defendant in this particular case.” Because 

there are several discretionary sentencing choices to be made in this case, it is most 

appropriate for this court to remand to the trial court to exercise that discretion. 

(People v. Rodriguez (2009) 47 Cal.4th 501, 509 [if correction of sentencing error may 

affect trial court’s discretionary sentencing decisions, appropriate remedy is reversal and 

remand].) 

DISPOSITION

The judgment is reversed and the matter is remanded for resentencing in 

accordance with the views stated herein.

 HULL , Acting P. J.

We concur:

 MAURO , J.

 MURRAY , J.