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P. v. Robinson
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P. v. Robinson CA4/2
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face="Times New Roman">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opinion has not been certified for publication or ordered published for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
face="Times New Roman">THE PEOPLE,
face="Times New Roman">
face="Times New Roman"> Plaintiff and
Respondent,
face="Times New Roman">
face="Times New Roman">v.
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face="Times New Roman">GEORGE HERMAN ROBINSON,
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face="Times New Roman"> Defendant and
Appellant.
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face="Times New Roman"> E058842
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face="Times New Roman"> (Super.Ct.No.
FWV04511)
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face="Times New Roman"> OPINION
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APPEAL from the Superior
Court of
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.
FACTS AND
PROCEDURAL HISTORY
On March 23, 1995, a jury convicted
defendant George Herman Robinson of robbery (count 1 – Pen. Code, § 211)
and evading police (count 2 – Veh. Code, § 2800.2).
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.
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 that law; 5) the matter should have been remanded for
exercise of the sentencing court’s discretion under Romero;face="Times New Roman">
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
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.
DISCUSSION
After the
notice of appeal was filed, this court appointed counsel to represent
defendant. Counsel has filed a brief
under the authority of
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
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 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.
DISPOSITION
The judgment is affirmed.
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
KING
J.
name="_ftn1" title=""> face="Times New Roman">face="Times New Roman">[1] All further statutory references are to the Penal
Code unless otherwise indicated.
name="_ftn2" title=""> face="Times New Roman">face="Times New Roman">[2] We take judicial notice of our opinion in
case No. E016355, the direct appeal from defendant’s conviction and judgment.
