People v. Robbins CA2/1

Filed 7/28/16 P. v. Robbins CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B261609

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA133510) v.

ROBERT ROBBINS, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles. Ronald V. Skyers, Judge. Affirmed in part, reversed in part, and remanded with directions. Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

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Defendant Robert Robbins, Jr., appeals from a judgment of the superior court sentencing him to 16 years in state prison after a jury convicted him of two drug-related counts. Defendant argues the trial court (1) violated his Fifth Amendment right to due process and his Sixth Amendment right to counsel when it denied his motion for a Marsden1 hearing prior to imposing sentence; (2) abused its discretion by imposing the upper term of five years for one of his counts and not stating the reasons for doing so on the record; and (3) prejudicially erred by giving a flight instruction. We agree the trial court erred in denying his Marsden motion without a hearing. Although we also agree the trial court erred in failing to state its reasons for sentencing on the record, defendant forfeited any argument on appeal about sentencing because he failed to object below to the imposition of the sentence. We disagree that the court’s flight instruction prejudiced defendant. We remand to the trial court to conduct a Marsden hearing. We affirm defendant’s conviction in all other respects. BACKGROUND On May 27, 2014, the Los Angeles Police Department (LAPD) was conducting a “buy-bust” narcotics operation in Watts’s Nickerson Gardens housing projects. LAPD selected Nickerson Gardens, an area well-known for drugs and dominated by the Bounty Hunter Bloods gang, because it had received complaints that narcotics sales were occurring there. After observing patterns of foot traffic in the area and concluding narcotics sales were, in fact, likely occurring, LAPD equipped a nonconfidential informant (NCI) with an audio and video recorder and supplied her with a marked $10 bill to purchase narcotics. Defendant was in the area, sitting shirtless in a chair counting a large pile of money on his lap. The NCI approached defendant after another purchaser pointed her in his direction to obtain narcotics. After a brief conversation, the NCI tried handing defendant the marked $10 bill. Defendant would not take the bill, but nodded his head in the direction of two other individuals, Raymond Shipp and Latassha Cox, and