7 Cal. App. 5th 385

Cal. Ct. App.

2017

THE PEOPLE, Plaintiff and Respondent, v. JAMES DAVID EPPERSON, Defendant and Appellant.

No. A145868

First Dist., Div. Five

Jan. 9, 2017

385

COUNSEL

Robert L. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit and Victoria Ratnikova, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

NEEDHAM, J.—Penal Code section 213, subdivision (a)(1)(A),¹ establishes an increased sentencing range for first degree robbery when the crime is committed inside an inhabited dwelling by a defendant “voluntarily acting in concert with two or more other persons.” Appellant James David Epperson argues this provision applies only to completed robberies and was improperly used to increase his sentence for four counts of attempted first degree residential robbery. He further contends that even if section 213, subdivision (a)(1)(A), may be used to increase the sentence for attempted robbery, the true findings in this case must be stricken because the trial court failed to adequately instruct the jury on the elements of that allegation in connection with the attempted robbery counts. Finally, appellant argues the abstract of judgment must be modified because it erroneously states that firearm enhancements were imposed under section 12022.5, subdivision (a), in addition to section 12022.53, subdivision (b). We agree with the final contention but otherwise affirm.

BACKGROUND

Due to the nature of the issues presented in this case, a detailed rendition of the underlying facts is not required. Suffice it to say that on October 11, 2012, appellant and two codefendants armed themselves with guns and forcibly entered the home of Amy Eustice, where they threatened and robbed or attempted to rob Eustice and several of her guests. Police arrived at the scene while the robbery was ongoing because one of the guests was able to call 911 on his cell phone.

Appellant and one of his two codefendants were tried before a jury² and appellant was convicted of two counts of first degree robbery (§§ 211, 212.5, subd. (a); counts 4 & 6), four counts of attempted first degree robbery (§§ 211, 212.5, subd. (a), 664; counts 1-3 & 5), and one count each of first degree burglary (§ 459; count 7), false imprisonment by violence (§ 236; count 8), assault with a firearm (§ 245, subd. (a)(2); count 9), and criminal threats (§ 422; count 10). Enhancement allegations for personal use of a firearm were found true in connection with the robbery, attempted robbery, burglary and false imprisonment counts. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) The jury also found that during the robberies and attempted robberies, appellant acted in concert within the meaning of section 213, subdivision (a)(1)(A).

Appellant was sentenced to prison for an aggregate term of 40 years four months: (1) the six-year middle term for the first degree robbery in count 4

plus a consecutive 10-year term for the firearm enhancement under section 12022.53, subdivision (b); (2) a consecutive two-year term (one-third the middle term) for the first degree robbery in count 6 plus a three-year four-month term (one-third the ten-year term) for the firearm enhancement; (3) four consecutive one-year terms for the attempted first degree robbery counts (calculated as half of one-third the middle term for residential robbery in concert), plus consecutive terms of three years four months for the firearm enhancements attached to each count; (4) a consecutive one-year term (one-third the middle term) for the assault with a firearm court; and (5) a consecutive eight-month term (one-third the middle term) for the criminal threats count. The terms on the burglary and false imprisonment counts were stayed under section 654.

DISCUSSION

I.

Sentence for Attempted First Degree Residential Robbery When Committed in Concert

Appellant argues the trial court erred by imposing an unauthorized “in concert enhancement” on the four counts of attempted first degree residential robbery. We disagree.

Section 213 provides: “(a) Robbery is punishable as follows: [¶] (1) Robbery of the first degree is punishable as follows: [¶] (A) If the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house, . . . by imprisonment in the state prison for three, six, or nine years. [¶] (B) In all cases other than that specified in subparagraph (A), by imprisonment in the state prison for three, four, or six years. [¶] (2) Robbery of the second degree is punishable by imprisonment in the state prison for two, three, or five years. [¶] (b) Notwithstanding Section 664, attempted robbery in violation of paragraph (2) of subdivision (a) is punishable by imprisonment in the state prison.”

While section 213 specifically sets forth a sentencing range for attempted second degree robbery, it does not specify the sentencing range for attempted first degree robbery. Section 664, subdivision (a), governs the sentencing of attempted felonies where the punishment is not otherwise specified by statute: “(a) If the crime attempted is punishable by imprisonment in the state prison . . . the person guilty of the attempt shall be punished by imprisonment in the state prison . . . for one-half the term of imprisonment prescribed upon a conviction of the offense attempted.” The question presented in this case is: one-half of what?

Section 213, subdivision (a), sets forth three ranges of punishment for robbery: two, three, or five years for second degree robbery; three, four, or six years for first degree robbery; and three, six, or nine years for a first degree residential robbery committed in concert with two or more other persons. The trial court imposed consecutive one-year terms for the attempted robbery counts, using the six-year middle term for first degree residential robbery in concert as a starting point, reducing that term by one-half under section 664, subdivision (a), and imposing one-third of that amount pursuant to section 1170.1, subdivision (a). We agree with the People that this was the appropriate methodology.

Appellant argues that because section 213, subdivision (a)(1)(A), does not refer specifically to attempted robbery, its increased sentencing range has no application to that crime. In support of his claim, appellant notes that the elevated range for first degree robbery in concert under section 213, subdivision (a)(1)(A), is an enhancement or penalty provision, rather than a substantive offense. (See In re Jonathan T. (2008) 166 Cal.App.4th 474, 480–482 [82 Cal.Rptr.3d 753] (Jonathan T.).) He then relies on the principle that an attempt to commit a crime is an offense separate and distinct from the completed crime, and an enhancement or penalty provision applicable to a completed offense does not apply to an attempt when it “does not expressly include attempted commission of its enumerated offenses within its ambit.” (People v. White (1987) 188 Cal.App.3d 1128, 1138 [233 Cal.Rptr. 772] (White), disapproved on another point in People v. Wims (1995) 10 Cal.4th 293, 314, fn. 9 [41 Cal.Rptr.2d 241, 895 P.2d 77].) The line of cases on which appellant relies is inapposite.

In White, supra, 188 Cal.App.3d at page 1137, the court held that a three-year kidnapping enhancement applicable to “ ‘[a]ny person convicted of a felony violation of’ ” various completed sexual offenses could not be applied to a conviction for attempted rape. (See id. at p. 1131, fn. 1.) “Section 667.8, unlike various other provisions in the Penal Code . . . does not expressly include attempted commission of its enumerated offenses within its ambit, which we must assume is an intentional choice of the Legislature. [Citation.] And attempts, as we have noted above, are offenses distinct from the completed crime. [Citations.]” (Id. at p. 1138.)

In People v. Le (1984) 154 Cal.App.3d 1 [200 Cal.Rptr. 839], the court considered the application of section 667.6, subdivision (c), which allows the imposition of full strength consecutive sentences for violations of certain sex crimes enumerated in that provision. It concluded the provision did not apply to a conviction of attempted forcible oral copulation, because while forcible oral copulation was an enumerated offense, attempted forcible oral copulation was not listed in the statute. (People v. Le, at p. 10.) “Because attempted

crimes are considered to be separate and distinct, they are not automatically included in the list of sexual offenses to which section 667.6, subdivision (c) applies. [Citations.] Furthermore, if the Legislature had intended to include attempts in the enhancement provisions, it would have specifically stated the enhancement applies to the ‘commission or attempted commission’ of specific crimes as it did in other enhancement provisions.” (Id. at pp. 10–11, fn. omitted.)

In People v. Jillie (1992) 8 Cal.App.4th 960, 962–963 [11 Cal.Rptr.2d 107], the court concluded section 1202.1, which requires a defendant to submit to testing for the human immunodeficiency virus when convicted of enumerated offenses, did not apply to attempts to commit the crimes enumerated. “We do not find the statute ambiguous. It expressly identifies the offenses within its scope, all of which are completed offenses. Had the Legislature meant to include attempts among the covered offenses, it could easily have done so as it has in other instances, for example, . . . section 667.5, subdivision (c)(12) specifying attempted murder as one of several violent felonies, and . . . section 1192.7, subdivision (c)(27) making an attempt to commit any of the specifically listed felonies also a serious felony.” (People v. Jillie, at p. 963.)

Finally, in People v. Reed (2005) 129 Cal.App.4th 1281 [29 Cal.Rptr.3d 215], the court considered the three-year enhancement for a prior drug conviction under Health and Safety Code section 11370.2, subdivision (a), which applies to “[a]ny person convicted of a violation of, or of a conspiracy to violate,” specified drug offenses. It held the statute could not be used to enhance a sentence for an attempt to commit the enumerated offenses. “As the statute now reads, neither a current conviction of an attempt to commit a specified crime nor a prior conviction of an attempt to commit a specified crime supports an enhancement under [Health & Saf. Code] section 11370.2, subdivision (a). ‘[I]f the Legislature had intended to include attempts in the enhancement provisions, it would have specifically stated the enhancement applie[d] to the “commission or attempted commission” of specific crimes . . . .’ ” (People v. Reed, at p. 1285.)

In each of the above cases, the court was faced with a statute authorizing an additional penalty or collateral consequence for certain enumerated offenses. The only offenses specified were completed crimes, and no other language in the statutes at issue suggested the provisions applied to attempts to commit those specified crimes. By contrast, section 213, subdivision (a)(1)(A), sets forth the sentencing range for a completed first degree residential robbery when committed in concert, and section 664, subdivision (a), provides the punishment for an attempted felony is “one-half the term of imprisonment prescribed upon a conviction of the offense

attempted.” In the case of an attempted first degree residential robbery where an in-concert allegation has been found true, this would be one-half the term of imprisonment prescribed in section 213, subdivision (a)(1)(A). Nothing in section 213, subdivision (a)(1)(A), suggests otherwise.

Using the elevated sentencing range of section 213, subdivision (a)(1)(A), to calculate the penalty for attempted first degree robbery in concert is also consistent with the legislative intent behind that provision. The language concerning in concert robberies was added to section 213 in 1994, by Assembly Bill No. 779 (1993–1994 Reg. Sess.) (Legis. Counsel‘s Dig., Assem. Bill No. 779, 5 Stats. 1994 (1993–1994 Reg. Sess.) Summary Dig., p. 305), and originally contemplated the creation of a new crime of home invasion (Assem. Bill No. 779 (1993–1994 Reg. Sess.) as introduced Feb. 24, 1993; Jonathan T., supra, 166 Cal.App.4th at p. 481). Senate amendments to the bill deleted the references to a new crime of home invasion and instead created “an aggravated form of first degree robbery consisting of a robbery committed in . . . an inhabited dwelling by three or more persons acting in concert” that was “punishable by three, six or nine years.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Assem. Bill No. 779 (1993–1994 Reg. Sess.) Aug. 9, 1994, pp. 1–2.) A legislative analysis of the provision noted that under previous law, attempted robberies of both the first and second degree had been punishable by a prison sentence of 16 months, two years, or three years, and that the new legislation “[p]rovide[d] that attempted robbery of any kind of the first degree is punishable under the general attempt statute so that the normal rules on attempt penalties would apply. By virtue of this, the penalty for attempted first degree robbery is as follows: [¶] a) In the case of an attempt to commit the aggravated form of first degree robbery, the penalty is 18 months, three years or four and one half years. [¶] b) In the case of an attempt to commit any other form of first degree robbery, the penalty is 18 months, two years or three years.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Assem. Bill No. 779 (1993–1994 Reg. Sess.) June 23, 1994, pp. 1–2, italics added.) This is consistent with the purpose underlying the bill, namely, “to deter home invasion style robberies.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Assem. Bill No. 779 (1993–1994 Reg. Sess.) Aug. 9, 1994, p. 2.)

The Legislature‘s understanding that the sentencing range for attempted robbery in concert would be half the sentencing range for robbery in concert, pursuant to section 664, was also made explicit by the Legislative Counsel: “This bill increase[s] the penalty for first degree robbery to imprisonment in state prison for 3, 6 or 9 years for offenses where the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house . . . and would provide that attempted first degree robbery is punishable by imprisonment in state prison for one-half the specified term, pursuant to PC § 664. [¶] Increasing the penalty for first

degree robbery of an inhabited dwelling, as specified, and providing that attempted first degree robbery is subject to the provisions of PC § 664, could result in some persons serving additional time in state prison.” (Cal. Youth and Adult Correctional Agency, Enrolled Bill Rep. on Assem. Bill No. 779 (1993–1994 Reg. Sess.) prepared for Governor Wilson (Sept. 1, 1994) pp. 1–2; see also Review of Selected 1994 California Legislation, Crimes (1994–1995) 26 Pacific L.J. 365, 450 [under amended version of § 213, “if a defendant, voluntarily acting in concert with two or more other persons, attempts to commit first degree robbery, the act will be punished by imprisonment in the state prison for a term of eighteen months, three years, or four and one-half years” under § 664, and “[i]n all other cases of attempted first degree robbery, the penalty will be imprisonment in the state prison for eighteen months, two years, or three years”].)

II., III.*

DISPOSITION

The judgment is modified to impose and stay the four-year middle term for the section 12022.5, subdivision (a), enhancement attached to the robbery conviction in count 4, and to impose and stay a one-year four month enhancement under section 12022.5, subdivision (a) (one-third the middle term) on the robbery conviction in count 6 and the attempted robbery convictions in counts 1, 2, 3 and 5. The abstract of judgment shall be modified accordingly and a copy forwarded to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

Simons, Acting P. J., and Bruiniers, J., concurred.

Appellant‘s petition for review by the Supreme Court was denied April 12, 2017, S239926.

*See footnote, ante, page 385.

Notes

Further statutory references are to the Penal Code unless otherwise indicated.

As to the other codefendant, criminal proceedings were suspended under section 1368.

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