P. v. Robinson

Filed 3/9/07 P. v. Robinson CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT EUGENE ROBINSON,
Defendant and Appellant.
F049300
(Super. Ct. No. BF108170A)
O P I N I O N
THE COURT∗
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Rita Barker, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Sarah J.
Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
∗ Before Gomes, Acting P.J., Dawson, J., and Kane, J.

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A jury convicted appellant, Robert Eugene Robinson, on two counts each of
attempted voluntary manslaughter (counts 1 & 3/Pen. Code §§ 664/192, subd. (a))1 and
assault with a deadly weapon (counts 2 & 4/§ 245, subd. (a)(1)). The jury also found true
allegations in counts 1 and 3 that Robinson personally used a deadly weapon (§ 12022,
subd. (b)(1)) and allegations in counts 1 through 4 that he inflicted great bodily injury (§
12022.7). In a separate proceeding, Robinson admitted a prior prison term enhancement
in counts 1 through 4.
On November 29, 2005, the court sentenced Robinson to an aggregate, unstayed
term of 12 years 10 months as follows: the upper term of five years six months on count
1, a one-year weapon enhancement in that count, a three-year great bodily injury
enhancement in that count, and a one-year prior prison term enhancement, a one-year
term on count 3 (one-third the middle term of three years), a four-month weapon
enhancement in that count (one-third the enhancement term of one year), and a one-year
term on the great bodily injury enhancement in that count (one-third the enhancement
term of three years). The court also imposed stayed aggregate terms of eight years each
on counts 2 and 4 consisting of the aggravated term of four years on the substantive
offense in each count, a three-year term for the great bodily injury enhancement in each
count and a one-year prior prison term enhancement in each count. On appeal, Robinson
contends: (1) the court committed Blakely2 error; and (2) the court erred in imposing
more than one prior prison term enhancement. We will find merit to Robinson’s second
contention and modify the judgment accordingly. In all other respects, we will affirm.
1 All further statutory references are to the Penal Code.
2 Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 253].

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FACTS
On October 30, 2004, Robinson was playing darts in a garage at a party in Kern
County when he parked his truck in the driveway and began playing music from the truck
loudly. This precipitated a fight between Robinson and another man which was joined in
by several partygoers. During the fight, Robinson pulled out a knife and stabbed several
people.
DISCUSSION
The Blakely Issue
Robinson’s probation report indicates that as a juvenile, Robinson had two
misdemeanor adjudications. As an adult, from 1995 through 2004, Robinson suffered a
felony conviction for driving under the influence with priors and 10 misdemeanor
convictions, including two convictions for inflicting corporal injury on a spouse and one
conviction each for unlawful possession of a firearm, making criminal threats, and false
imprisonment . He also served one prior prison term and he violated his probation on at
least four occasions and his parole once. Additionally, Robinson was on parole and a
grant of misdemeanor probation when he committed the underlying offenses.
In sentencing Robinson, the trial court found as aggravating circumstances that
Robinson’s prior convictions were numerous and significant because they involved
assaultive conduct, alcohol and the use of a weapon, Robinson was on misdemeanor
probation and parole when he committed the underlying offenses, his prior performance
of probation and parole had been unsatisfactory, and he had engaged in violent conduct
which indicated that he was a danger to society. The court also found that there were no
mitigating circumstances.
Relying on United States v. Booker (2005) 543 U.S. 220, Blakely v. Washington,
supra, 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi), Robinson contends the trial court violated his Sixth Amendment right to trial

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by jury by imposing the upper term on counts 1, 2 and 4 based on factors not admitted by
Robinson or found to be true by the jury beyond a reasonable doubt.
Prior to Robinson’s sentencing, the California Supreme Court undertook an
extensive analysis of these cases and concluded that the imposition of an upper term
sentence, as provided under California law, was constitutional. (People v. Black (2005)
35 Cal.4th 1238, 1244, 1254, 1261 (Black).) Recently, however, the United States
Supreme Court overruled Black in part and held that California’s determinate sentencing
law “violates Apprendi’s bright line rule: Except for a prior conviction, ‘any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.’” (Cunningham v. California
549 U.S. __ [127 S.Ct. 856, 868] (Cunningham).) The middle term prescribed under
California law, not the upper term, is the relevant statutory maximum. (Ibid.)
In the present case, however, the probation report revealed that Robinson had
suffered numerous prior convictions and he did not challenge the accuracy of this
account. Multiplicity of prior convictions comes within the exception contained within
Blakely and Apprendi. This means the upper term was supported by at least one factor
that, under those cases, need not be found by a jury beyond a reasonable doubt. (See
Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.) It follows that
reliance on this factor was not error under Cunningham (see Cunningham, supra, 549
U.S. __ [127 S.Ct. at p. 860]) and hence that imposition of the upper term was
constitutionally permissible.
Even assuming consideration of non-prior-conviction-related factors was error, it
was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S.
18, 24; furthermore, there was no abuse of discretion under People v. Watson (1956) 46
Cal.2d 818, 836. A single factor in aggravation suffices to support imposition of the
upper term (People v. Osband (1996) 13 Cal.4th 622, 730); in light of the presence of one
valid factor in aggravation, and the absence of any mitigation, the record amply

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establishes that the trial court would have imposed the upper term even if the factors not
related to appellant’s prior convictions had been excluded from consideration.
The Prior Prison Term Enhancements
The amended information charged Robinson with a prior prison term enhancement
in each count. Each prior prison term enhancement was based on Robinson’s 2001
conviction for driving under the influence with three prior convictions. Although
Robinson admitted a prior prison term enhancement in each count, Robinson’s abstract of
judgment shows that the court imposed one such enhancement and stayed another.
Robinson contends that his abstract of judgment should be amended to reflect only one
prior prison term enhancement. Respondent concedes and we agree.
Preliminarily, we note that the court does not have the authority to stay prior
prison term enhancements and must either impose or strike them. (People v. Bracamonte
(2003) 106 Cal.App.4th 704, 711.)
Moreover, section 1170.1, subdivision (a) provides:
“Except as otherwise provided by law, and subject to Section 654,
when any person is convicted of two or more felonies, whether in the same
proceeding or court or in different proceedings or courts, and whether by
judgment rendered by the same or by a different court, and a consecutive
term of imprisonment is imposed under Sections 669 and 1170, the
aggregate term of imprisonment for all these convictions shall be the sum
of the principal term, the subordinate term, and any additional term
imposed for applicable enhancements for prior convictions, prior prison
terms, and Section 12022.1. The principal term shall consist of the greatest
term of imprisonment imposed by the court for any of the crimes, including
any term imposed for applicable specific enhancements. The subordinate
term for each consecutive offense shall consist of one-third of the middle
term of imprisonment prescribed for each other felony conviction for which
a consecutive term of imprisonment is imposed, and shall include one-third
of the term imposed for any specific enhancements applicable to those
subordinate offenses.”
In People v. Tassell (1984) 36 Cal.3d 77, the Supreme Court stated:

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“Section 1170.1 refers to two kinds of enhancements: (1) those
which go to the nature of the offender; and (2) those which go to the nature
of the offense. Enhancements for prior convictions - authorized by sections
667.5, 667.6 and 12022.1 - are of the first sort. The second kind of
enhancements - those which arise from the circumstances of the crime - are
typified by sections 12022.5 and 12022.7: was a firearm used or was great
bodily injury inflicted? Enhancements of the second kind enhance the
several counts; those of the first kind, by contrast, have nothing to do with
particular counts but, since they are related to the offender, are added only
once as a step in arriving at the aggregate sentence.
“Section 1170.1, subdivision (a) starts out by stating the basic rule
that when a person is convicted of two or more felonies, the total sentence
consists of (1) the principal term, (2) the subordinate term, and (3) any
enhancements for prior convictions. In so doing, it makes it very clear that
enhancements for prior convictions do not attach to particular counts but
instead are added just once as the final step in computing the total
sentence.” (People v. Tassell, supra, 36 Cal.3d at p. 90, fn. omitted.)
Here, Robinson should have admitted only one prior prison term enhancement
because all the enhancements alleged in the amended information were based on the
same prior conviction. Further, in accord with the above authorities, the court should
have added the prior prison term enhancement only once as the final step in calculating
the principal term. In view of this, we conclude that the court erred by including a stayed
prior prison term enhancement in Robinson’s abstract of judgment.
DISPOSITION
The judgment is modified to strike the stayed prior prison term listed in
Robinson’s abstract of judgment. The trial court is directed to prepare an amended
abstract of judgment that reflects the imposition of only one prior prison term
enhancement and to forward a certified copy to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.

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