P. v. Midkiff
Robert Lynn Midkiff appeals from the judgment entered following a court trial in which he was convicted on count 1 first degree residential burglary with a person present (Pen. Code, 459, 667.5, subd. (c)(21)), count 2 assault with a deadly weapon by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)), count 3 second degree robbery (Pen. Code, 211) and count 4 first degree residential robbery (Pen. Code, 211), with, as to counts 1, 3, and 4, personal use of a deadly and dangerous weapon (Pen. Code, 12022, subd. (a)(1)) and, as to all counts, personal infliction of great bodily injury (Pen. Code, 12022.7, subd. (a)), with admissions he suffered two prior felony convictions (Pen. Code, 667, subd. (d)), two prior serious felony convictions (Pen. Code, 667, subd. (a)), and four prior felony convictions for which he served separate prison terms (Pen. Code, 667.5, subd. (b)). The court sentenced him to prison for 39 years to life.
Court conclude there was sufficient evidence that appellant committed first degree residential robbery and second degree robbery. Appellant claims there was insufficient evidence that he took property from the victims person or immediate presence. Appellant also claims, as to each of counts 3 and 4, that the trial court failed to determine the degree of the robbery as required by Penal Code section 1192. However, our review of the record reveals there was sufficient evidence that appellant took property from the victims immediate presence. Moreover, although robbery is divisible into degrees, neither first degree residential robbery, nor second degree robbery, is divisible into degrees; therefore, Penal Code section 1192, is inapplicable. Because each of counts 3 and 4 was based on the same act, appellant actually stands convicted of a greater offense (count 4) and a lesser included offense (count 3), the remedy for which is reversal of his conviction on count 3. Finally, Court accept respondents concession that appellant is entitled to conduct credit under Penal Code section 4019.
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