People v. Roberson

Opinion

BROWN (Gerald), P. J . —

Jackie Eugene Roberson pied guilty to using a firearm to rob a Jolly Roger Restaurant (Pen. Code, ’§§ 211, 12022.5, 1203.06, subd. (a)(l)(iii)) and admitted two prior convictions. He appeals the judgment claiming his sentence was improperly computed.

The new sentencing law provides three possible terms: the lowest is to be used where there are mitigating circumstances and the highest when there are aggravating circumstances (Pen. Code, § 1170). Use of a firearm and prior convictions may serve as aggravating circumstances (Cal. Rules of Court, rule 421). Enhancements may be added to the base term after certain findings are made. Two of these are a two-year enhancement for use of a firearm (Pen. Code, § 12022.5) and a one-year enhancement for each prior felony conviction (Pen. Code, § 667.5). However, the finding of gun use or prior conviction may only be used once, that is, either as an aggravating circumstance warranting imposition of the longest term or as an enhancement (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 441(c)). Roberson says the court used the findings for both.

Here Roberson was charged with robbery while armed and being an ex-felon in possession of a concealable firearm (Pen. Code, § 12021). In addition it was alleged he had six prior felony convictions:

1. December 21, 1954 — robbery with firearm, second degree burglary

2. June 10, 1957 — second degree burglary

3. April 19, 1960 — robbery with firearms

[893]

4.

April 10, 1962 — robbery with firearms

1

5. June 17, 1966 — assault with a deadly weapon

6. April 19, 1971 — possession of firearms after conviction of a felony.

Roberson pied guilty to the robbery and admitted the last two priors. At sentencing the trial court, with regard to the aggravated sentence, said: “[I]t will be the judgment and sentence of this Court that for the crime of robbery in violation of Penal Code section 211, that the Defendant be sentenced to serve a base term of four years, and I am selecting the aggravated upper term for the following reasons: The crime involved the threat of violence and callousness on the part of this Defendant; the crime involved some degree of planning as evidenced by the fact that he had the weapon and a ski mask, as I recall; the facts pertaining to the Defendant are that he is continuing to engage in a pattern of violent conduct and presents a serious danger to society; his prior adult convictions, felony convictions, certainly indicate excessive criminality on his part which would justify the Court selecting the upper term based upon aggravated circumstances.” The threat of violence and possession of the weapon as an indication of planning could only be based on Roberson’s use of the weapon in committing this very crime; the pattern of violent conduct would be based on the priors.