People v. Robinson CA4/2 ( 2013 )

Filed 11/15/13 P. v. Robinson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058842
v. (Super.Ct.No. FWV04511)
GEORGE HERMAN ROBINSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Michelle Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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FACTS AND PROCEDURAL HISTORY
On March 23, 1995, a jury convicted defendant George Herman Robinson of
robbery (count 1 – Pen. Code, § 211)1 and evading police (count 2 – Veh. Code,
§ 2800.2).2 In a bifurcated proceeding thereafter, a jury found true allegations a principal
in the robbery was armed with a firearm as to the count 1 offense (§ 12022, subd. (a)(1))
and that defendant suffered 11 prior strike convictions (former § 667, subds. (b)-(i)) and
two prior prison terms (former § 667, subd. (a)). On May 17, 1995, the trial court
sentenced defendant to an indeterminate term of imprisonment of 25 years to life.3
On his initial appeal, defendant raised six contentions: 1) the trial court erred in its
instructions to the jury on aiding and abetting; 2) the court abused its discretion in
denying his motion for new trial predicated on prosecutorial mentions of defendant’s
prior criminality; 3) the court failed properly to consider defendant’s new trial motion
based on ineffective assistance of counsel at trial; 4) the sentencing court erroneously
applied the then new “Three Strikes” law to defendant’s prior strike convictions predating
1 All further statutory references are to the Penal Code unless otherwise indicated.
2We take judicial notice of our opinion in case No. E016355, the direct appeal
from defendant’s conviction and judgment.
3 In our opinion in case No. E016355, we modified defendant’s sentence to
include imposition of the two mandatory five-year enhancements (§ 667, subds. (a) &
(d)) for an additional 10 years. Thus, defendant’s sentence became an indeterminate term
of 35 years to life.
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that law; 5) the matter should have been remanded for exercise of the sentencing court’s
discretion under Romero; 4 and 6) the Three Strikes law was unconstitutionally vague.
We affirmed the judgment, but modified defendant’s sentence to impose the two,
mandatory five-year enhancements (§ 667, subds. (a) & (d)) for an additional 10 years.
With respect to defendant’s Romero argument, we noted neither his counsel below nor
the sentencing court moved for or considered striking any of defendant’s prior strike
convictions. However, defendant’s extensive record of serious criminal behavior;
repeated felony offenses committed while on probation or parole; and actions in the
underlying case in which defendant aided and abetted a bank robbery committed with a
firearm and fled police endangering other motorists and pedestrians, demonstrated it
would have been an abuse of discretion for a sentencing court to strike any of defendant’s
prior convictions. Thus, we held no remand under Romero was warranted.
On February 15, 2013, defendant filed a petition for recall of sentence in the
superior court pursuant to section 1170.126. Defendant requested the court strike his
count 2 offense and one of his prior strike convictions under count 1. In support of
defendant’s requests, defendant attached a number of documents purportedly establishing
defendant’s changed circumstances in the interim between his latest conviction and the
filing of his petition. On May 6, 2013, the court denied defendant’s petition.
4 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
3
DISCUSSION
After the notice of appeal was filed, this court appointed counsel to represent
defendant. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396,
18 L.Ed.2d 493], setting forth a statement of the case, a brief statement of the facts, and
identifying one potential arguable issue: whether the trial court abused its discretion in
denying defendant’s petition pursuant to section 1170.126 and request to strike a prior
strike pursuant to section 1385. (Citing People v. Conley (2013) 215 Cal.App.4th 1482,
review granted and opinion superseded by People v. Conley, 2013 Cal. LEXIS 6683(August 14, 2013, S211275).)
Defendant was offered an opportunity to file a personal supplemental brief, which
he has done. In his brief, defendant reiterates the claims made in his petition, i.e., the
court should strike defendant’s count 2 conviction and strike one of his prior strike
convictions under count 1.
First, section 1170.126 neither permits the striking of substantive counts nor prior
strike allegations; rather, it is a resentencing procedure. Thus, defendant’s argument that
the court should have stricken count 2 or a prior strike conviction under count 1 fails
because Romero is inapplicable to section 1170.126 resentencing. Moreover, even if the
court had complied with defendant’s request, it would not have changed his sentence; he
would still be serving a 35-year- to-life indeterminate term. The mandatory sentence for
the violent felony of robbery with 10 prior strike convictions and two prior prison terms
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is still an indeterminate term of imprisonment of 35 years to life. (§ 667, subds. (a)(1) &
(e)(2)(A)(ii).) Second, as defendant admits, the jury convicted him of a violent felony,
bank robbery, making him ineligible for resentencing pursuant to section 1170.126.
(§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C), 667.5, subd. (c)(9).)
Third, all defendant’s 11 prior strike convictions are robberies which would,
likewise, qualify as violent felonies, making him ineligible for resentencing under
section 1170.126 regarding either count 1 or 2. (§§ 1170.126, subd. (e)(2), 667,
subd. (e)(2)(C), 667.5, subd. (c)(9).) Fourth, with respect to 10 of defendant’s prior
robbery convictions, allegations defendant personally used a firearm were found true
(§ 12022.5.). Thus, 10 of his prior convictions would doubly qualify as violent felonies,
making him ineligible for resentencing pursuant to section 1170.126. (§§ 1170.126,
subd. (e)(2), 667, subd. (e)(2)(C), 667.5, subd. (c)(8).) Thus, the court properly denied
defendant’s motion for resentencing. Under People v. Kelly (2006) 40 Cal.4th 106, we
have conducted an independent review of the record and find no arguable issues.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
KING
J.
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