Does the dual use rule in sentencing a defendant to the aggravated term on voluntary manslaughter and on the use enhancement apply?

Contrary to the contentions of defendant, the trial court did not violate the dual use rule in sentencing him to the aggravated term on voluntary manslaughter and on the use enhancement. Defendant's first argument is that the trial court abused its discretion by imposing the upper term for voluntary manslaughter because it relied upon an element of the crime, violent conduct resulting in death, as a factor in aggravation. The court did not improperly rely on an element of the crime. Violence is not necessarily an element of voluntary manslaughter, which is the unlawful killing of a human being, without malice, upon sudden quarrel or heat of passion. ( 192, subd. (a).) While voluntary manslaughter does require that the defendant either intended to kill the victim, or acted in conscious disregard for life (People v. Parras (2007) 152 Cal.App.4th 219, 224), the crime may be committed without violence (as by means of poison or use of legal or illegal drugs, or the termination of medical treatment). (People v. Dixie (1979) 98 Cal.App.3d 852, 856 [violence not an element of murder].) Additionally, the trial court did not rely solely upon violence when applying the aggravating factor set forth in rule 4.421(a)(1); it also relied upon the high degree of cruelty, viciousness, or callousness involved in the commission of the offense (because defendant shot the victim at point-blank range and racked the gun before shooting).

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