People v. Miller

Opinion

FRANSON, J.

Appellant appeals from a judgment of conviction following jury trial of violating Penal Code section 211, robbery (count I) and Penal code section 245, subdivision (a), assault by means of force likely to produce great bodily injury (count II). Appellant was sentenced to state prison for the aggravated term of four years on the robbery. Sentence on the felony assault conviction was stayed pending completion of sentence on the robbery.

Appellant makes three contentions on appeal: (1) the trial court committed reversible error as to count II by failing to define great bodily

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injury as twice requested by the jury; (2) resentencing is required on the robbery conviction because the trial judge failed to state his reasons for imposing the upper prison term; and (3) appellant is entitled to work/good time credit on his prison term for time spent in presentence custody.

For the reasons to be explained, we accept appellant’s first two contentions and reject the third contention.

Facts

On May 20, 1978, at approximately 1 a.m. the victim Clyde Taylor, a farm worker, was sitting near Lakeview Avenue in Bakersfield, California, drinking a beer. Appellant came up to Mr. Taylor and asked for some money to buy a beer. Taylor got up to get more money in his room and as he did so, appellant grabbed Taylor around the neck, choked him and forced him to the ground. Appellant took 40 cents from Taylor’s front pocket and tore Taylor’s pants until he got a wallet from Taylor’s back pocket. In taking the wallet, appellant put his knees on Taylor’s neck.

Two police officers in a patrol car happened by; they observed Taylor lying on the ground and appellant running from the scene. The officers pursued appellant, and arrested him in a restroom of a nearby hotel. In the restroom the officers found Taylor’s wallet and some change in the approximate amount taken from his pocket.

Taylor identified appellant as the person who had assaulted him. The officers observed that Taylor was covered with dirt on the front of his body, had a minor laceration above his left eye, and blood on his chin. His left rear pants pocket was torn, and his pants were ripped in back.