## Facts

- Around 8:15 p.m., Troy Thomas Bennett and two accomplices entered a supermarket with five employees and roughly 40 to 50 customers present.
- Bennett carried a sawed-off shotgun, pointed it at two store employees, and waved it around while ordering customers to turn over their money.
- During the robbery, Bennett grabbed an employee and a customer to keep them from leaving the store.
- A jury convicted Bennett of two counts of robbery (Cal. Penal Code § 211) and found firearm use on both counts (Cal. Penal Code § 12022.5).
- The trial court imposed two concurrent five-year terms (the upper base term for robbery at the time) and added a two-year additional term for firearm use on one robbery count, for a total of seven years.
- In selecting the upper base term, the court stated five aggravating factors: (1) the victims (supermarket clerks) were particularly vulnerable; (2) the crime involved threat of great bodily harm; (3) the taking was accomplished by violence; (4) consecutive terms could have been imposed; and (5) Bennett was a menace to society based on a record of violent conduct.
- The trial court stated it was not using gun use to justify the upper base term and was using the gun only for the two-year firearm-use add-on.

## Issues

1. Whether the trial court properly found the supermarket clerks were “particularly vulnerable” victims under the California Rules of Court aggravating factor.
2. Whether the court improperly relied on the threat of great bodily harm and “taking by violence” as aggravating factors because those considerations duplicated firearm use or otherwise overlapped with the offense.
3. Whether the stated reasons, taken together, supported the choice of the upper base term.

## Decision

- The Court of Appeal affirmed the sentence.
- The court held the “particularly vulnerable” finding was supported: the clerks’ role and situation during a takeover-style robbery in a crowded supermarket made them more exposed and easier to victimize than robbery victims in many other settings.
- The court rejected the claim that the upper term rested on an improper double use of firearm conduct, noting the sentencing judge expressly reserved firearm use for the statutory firearm-use add-on and could consider the overall manner of the robbery and the danger it created.
- The court concluded that the sentencing record contained at least one valid aggravating circumstance supporting the upper base term and therefore did not require resentencing.

## Legal Principles

- A sentencing court may select the upper term when supported by aggravating circumstances recognized by the California Rules of Court and supported by the record.
- “Particularly vulnerable” refers to victims who, due to their position or the circumstances of the crime, are more exposed, accessible, or susceptible to the defendant’s conduct than victims of similar offenses in general; it requires something more than the vulnerability present in every robbery.
- When firearm use results in a statutory firearm-use add-on term, the same firearm use may not be counted again as an aggravating fact for the base term; however, the court may still rely on other features of the offense’s execution (such as the takeover nature of the robbery, restraints on movement, or the degree of danger and fear created) if they are not merely a relabeling of firearm use.
- Even if some stated reasons are debatable, an upper-term choice will be upheld when at least one proper aggravating factor remains and supports the sentencing selection on this record.

## Conclusion

People v. Bennett affirmed an upper-term robbery sentence plus a firearm-use add-on because the trial court could reasonably treat supermarket clerks confronted during a crowded, takeover-style robbery as “particularly vulnerable,” and the record did not show the court improperly reused firearm use as an aggravating reason for the base term.


People v. Bennett, 128 Cal. App. 3d 354 (1981)