People v. Roberson CA2/6

Filed 11/15/23 P. v. Roberson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim No. B321001 (Super. Ct. No. 19CR04521) Plaintiff and Respondent, (Santa Barbara County)

v.

TERRENCE EDWARD ROBERSON,

Defendant and Appellant.

Terrence Edward Roberson appeals from the judgment after he was convicted at a court trial for attempted willful, deliberate, and premeditated murder (count 1; Pen. Code, §§ 664, subd. (a), 187, subd. (a))1 and carrying a concealed firearm (count 2; § 25400, subd. (a)(2)). As to count 1, the court found true enhancements of intentional and personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)), and personal use of a firearm (§ 12022.5, subd. (a)). The trial court sentenced

1 Further statutory references are to the Penal Code.

Roberson to a prison term of seven years to life for count 1, a consecutive term of 25 years to life for discharging a firearm causing great bodily injury, and a concurrent term of two years for count 2. Pursuant to section 654, the court stayed a four-year term for use of a firearm. Appellant contends: (1) the case must be remanded for the trial court to exercise its discretion to reduce the enhancement for discharging a firearm, (2) the enhancement for personal use of a firearm must be dismissed, and (3) the sentence for count 2 must be stayed pursuant to section 654. We reject these contentions but conclude the sentence for count 1 must be modified to life with parole, and count 2 must be reduced to a misdemeanor. In all other respects, we affirm. FACTUAL AND PROCEDURAL HISTORY Roberson and victim D.Z. passed each other on the sidewalk. When they were directly next to each other, Roberson said something like “bitch” under his breath. D.Z. turned around and said, “Excuse me?” Roberson stated, “I’ll show you who I am.” As they stood five to 10 feet apart, Roberson fired a .22 caliber revolver several times, hitting D.Z. in the back twice. D.Z. had not threatened Roberson. D.Z. was hospitalized with two gunshot wounds: one to his right side below his collarbone, and the other to his back near his left shoulder. At the time of trial, he remained in “great pain” from the bullet fragments still lodged in his body. Roberson admitted to police that he shot the victim five or six times “from his chest to his stomach.” Roberson said he acted in self-defense to “[k]eep from getting stabbed in the back” because the victim had a knife. Roberson admitted the victim’s hands were at his side. The trial court noted that Roberson never