People v. Boerner

Opinion

WIENER, J.

Robert Dale Boerner pleaded guilty to attempted robbery (Pen. Code, §§ 664 and 211)

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and admitted allegations he used a dangerous weapon (§ 12022, subd. (b)) and inflicted great bodily injury (§ 12022.7). Six counts charging two attempted robberies, three assaults with a deadly weapon (§ 245, subd. (a)), and kidnaping with the

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intent to commit robbery (§ 209, subd. (b)) were dismissed. He was sentenced to an aggregate term of seven years, comprised of the upper base term of three years for attempted robbery enhanced one year for use of a deadly weapon and three years for causing great bodily injury. On appeal, he challenges the propriety of the imposition of the upper term, as well as the dual enhancements under section 1170.1, subdivision (d). We conclude Boerner was properly sentenced and, accordingly, affirm the judgment.

Factual Background

Boerner, accompanied by two codefendants, approached four Mexican illegal aliens on a San Diego street. He and his companions lured the aliens into Boerner’s car by promising to transport them to Los Angeles. Following a two-hour stop at a house in Lemon Grove, Boerner, his companions, and the aliens left the house in Boerner’s car. After several brief stops, they drove to Swan Street where they again stopped. At this point, Boerner and his associates requested one of the aliens, Francisco Royas, to get out of the car. One of the codefendants tried to stab him with a knife, but his attempt was blocked. Boerner then stabbed Royas several times in the chest and abdomen. Boerner later stabbed two other aliens after demanding their money.

Imposition of the Upper Term for Attempted Robbery Was Proper

Boerner says the court abused its discretion by improperly considering his use of a weapon as an aggravating factor of leadership (Cal. Rules of Court, rule 421(a)(5)) and as an enhancement (§ 12022, subd. (b)), contrary to section 1170, subdivision (b),

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