7 Cal. App. 5th 385
Cal. Ct. App.2017Background
- On Oct. 11, 2012, Epperson and two codefendants armed with guns entered an inhabited dwelling and robbed and attempted to rob occupants; police arrived during the incident.
- Epperson was tried and convicted of two counts of first‑degree robbery, four counts of attempted first‑degree robbery, burglary, false imprisonment, assault with a firearm, and criminal threats.
- Jury found true firearm personal‑use findings and that Epperson acted “in concert” (Pen. Code § 213(a)(1)(A)) during the robberies and attempted robberies.
- Trial court sentenced Epperson to an aggregate term of 40 years, 4 months, using the elevated 3/6/9 range for residential robbery in concert as the base for attempted robbery calculations (halved under § 664 and reduced by § 1170.1(a) fractions for subordinate counts).
- Epperson appealed, arguing (1) § 213(a)(1)(A) cannot be applied to attempted robberies, (2) jury instructions failed to tie the in‑concert element to the attempted counts, and (3) the abstract of judgment incorrectly reflects firearm enhancements under both § 12022.5(a) and § 12022.53(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 213(a)(1)(A) (in‑concert residential robbery range) applies to attempted first‑degree residential robbery | People: § 664 makes attempt punishable at one‑half the term prescribed for the completed offense, so the in‑concert range (3/6/9) properly supplies the base for attempted in‑concert robberies | Epperson: § 213(a)(1)(A) is an enhancement/penalty for a completed offense and does not expressly include attempts, so it cannot be applied to attempts | Held: § 213(a)(1)(A) may be used as the base; attempted in‑concert robbery is punished at one‑half the in‑concert range per § 664, consistent with legislative history and intent |
| Whether omission of a specific in‑concert instruction tied to attempted counts requires striking the true findings | People: jury was properly instructed on robbery in concert (CALCRIM 1601) for completed robberies and instructions read as a whole supply the omitted link; factual finding necessarily decided against defendant | Epperson: trial court failed to instruct the jury on the in‑concert elements in connection with the attempted counts, so true findings are unsupported | Held: No reversal. Instructions as a whole cured any omission; any error would be harmless beyond a reasonable doubt |
| Whether firearm enhancements were properly imposed and reflected in the abstract of judgment | People: enhancements were found under both § 12022.5(a) and § 12022.53(b); where § 12022.53 applies it controls and § 12022.5 should be imposed and stayed | Epperson: abstract incorrectly lists both as imposed; only § 12022.53(b) should have been executed | Held: Modify judgment/abstract to show § 12022.53(b) imposed and § 12022.5(a) imposed and stayed (middle term 4 years on principal, proportioned down for subordinate counts); no remand needed for resentencing |
| Whether remand for resentencing is required to exercise discretion on stayed § 12022.5 terms | People: remand appropriate so trial court can choose term within § 12022.5 range | Epperson: not necessary where record shows trial court would have chosen middle term and remand would be futile | Held: No remand; record indicates court would have selected middle term and the court modified the abstract accordingly |
Key Cases Cited
- In re Jonathan T., 166 Cal.App.4th 474 (Cal. Ct. App.) (distinguishing statutes that expressly include attempts from penalty provisions that do not)
- People v. White, 188 Cal.App.3d 1128 (Cal. Ct. App.) (penalty/enhancement that lists only completed offenses does not apply to attempts)
- People v. Le, 154 Cal.App.3d 1 (Cal. Ct. App.) (refusing to apply consecutive‑sentence provision to attempted offense where statute listed only completed offenses)
- People v. Jillie, 8 Cal.App.4th 960 (Cal. Ct. App.) (statute listing completed offenses does not include attempts absent express language)
- People v. Reed, 129 Cal.App.4th 1281 (Cal. Ct. App.) (attempts not covered where enhancement statute omits them)
- People v. Gonzalez, 43 Cal.4th 1118 (Cal.) (when § 12022.53 applies, § 12022.5 must be imposed and stayed)
- People v. Hall, 8 Cal.4th 950 (Cal.) (trial court discretion in selecting term under § 12022.5)
- People v. Alford, 180 Cal.App.4th 1463 (Cal. Ct. App.) (remand unnecessary where record shows how court would have exercised discretion)
- People v. Flood, 18 Cal.4th 470 (Cal.) (Chapman harmless‑beyond‑a‑reasonable‑doubt standard for instructional omissions)