People v. Bennett

A jury convicted Troy Thomas Bennett (defendant) of two counts of robbery with the use of a firearm. At around 8:15 p.m., Bennett and two co-conspirators entered a supermarket containing five employees and 40 to 50 customers. During the robbery, Bennett pointed a sawed-off shotgun at two store employees and waved the shotgun around while ordering customers to give up their money. At some point, Bennett grabbed an employee and a customer to prevent them from leaving the supermarket. The trial court sentenced Bennett to a total of seven years of incarceration, which included two concurrent terms of five years on the robbery counts, plus a two-year gun-use enhancement on one of the robbery counts. Five years was the upper base term for robbery in California. The trial court stated that five factors justified imposing the upper base term: (1) the victims—supermarket clerks—were particularly vulnerable; (2) the crime involved the threat of great bodily harm; (3) the crime involved taking property by violence; (4) consecutive terms could have been imposed for the two counts of robbery; and (5) the defendant was a menace to society because he had a record of violent conduct. The trial court specifically stated that it did not consider Bennett’s use of a gun as a factor in imposing the upper base term, and instead used the gun only to impose the two-year sentence enhancement. Bennett appealed his sentence, contesting three of the five aggravating factors.