Filed 11/15/13 P. v. Robinson CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058842

v.                                                                       (Super.Ct.No. FWV04511)

GEORGE HERMAN ROBINSON,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Michelle Rogers, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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                         FACTS AND PROCEDURAL HISTORY

       On March 23, 1995, a jury convicted defendant George Herman Robinson of

robbery (count 1 – Pen. Code, § 211)1 and evading police (count 2 – Veh. Code,

§ 2800.2).2 In a bifurcated proceeding thereafter, a jury found true allegations a principal

in the robbery was armed with a firearm as to the count 1 offense (§ 12022, subd. (a)(1))

and that defendant suffered 11 prior strike convictions (former § 667, subds. (b)-(i)) and

two prior prison terms (former § 667, subd. (a)). On May 17, 1995, the trial court

sentenced defendant to an indeterminate term of imprisonment of 25 years to life.3

       On his initial appeal, defendant raised six contentions: 1) the trial court erred in its

instructions to the jury on aiding and abetting; 2) the court abused its discretion in

denying his motion for new trial predicated on prosecutorial mentions of defendant’s

prior criminality; 3) the court failed properly to consider defendant’s new trial motion

based on ineffective assistance of counsel at trial; 4) the sentencing court erroneously

applied the then new “Three Strikes” law to defendant’s prior strike convictions predating




       1   All further statutory references are to the Penal Code unless otherwise indicated.

       2We take judicial notice of our opinion in case No. E016355, the direct appeal
from defendant’s conviction and judgment.

       3  In our opinion in case No. E016355, we modified defendant’s sentence to
include imposition of the two mandatory five-year enhancements (§ 667, subds. (a) &
(d)) for an additional 10 years. Thus, defendant’s sentence became an indeterminate term
of 35 years to life.



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that law; 5) the matter should have been remanded for exercise of the sentencing court’s

discretion under Romero; 4 and 6) the Three Strikes law was unconstitutionally vague.

       We affirmed the judgment, but modified defendant’s sentence to impose the two,

mandatory five-year enhancements (§ 667, subds. (a) & (d)) for an additional 10 years.

With respect to defendant’s Romero argument, we noted neither his counsel below nor

the sentencing court moved for or considered striking any of defendant’s prior strike

convictions. However, defendant’s extensive record of serious criminal behavior;

repeated felony offenses committed while on probation or parole; and actions in the

underlying case in which defendant aided and abetted a bank robbery committed with a

firearm and fled police endangering other motorists and pedestrians, demonstrated it

would have been an abuse of discretion for a sentencing court to strike any of defendant’s

prior convictions. Thus, we held no remand under Romero was warranted.

       On February 15, 2013, defendant filed a petition for recall of sentence in the

superior court pursuant to section 1170.126. Defendant requested the court strike his

count 2 offense and one of his prior strike convictions under count 1. In support of

defendant’s requests, defendant attached a number of documents purportedly establishing

defendant’s changed circumstances in the interim between his latest conviction and the

filing of his petition. On May 6, 2013, the court denied defendant’s petition.




       4   People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).


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                                       DISCUSSION

       After the notice of appeal was filed, this court appointed counsel to represent

defendant. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396,

18 L.Ed.2d 493], setting forth a statement of the case, a brief statement of the facts, and

identifying one potential arguable issue: whether the trial court abused its discretion in

denying defendant’s petition pursuant to section 1170.126 and request to strike a prior

strike pursuant to section 1385. (Citing People v. Conley (2013) 215 Cal.App.4th 1482,

review granted and opinion superseded by People v. Conley, 2013 Cal. LEXIS 6683

(August 14, 2013, S211275).)

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has done. In his brief, defendant reiterates the claims made in his petition, i.e., the

court should strike defendant’s count 2 conviction and strike one of his prior strike

convictions under count 1.

       First, section 1170.126 neither permits the striking of substantive counts nor prior

strike allegations; rather, it is a resentencing procedure. Thus, defendant’s argument that

the court should have stricken count 2 or a prior strike conviction under count 1 fails

because Romero is inapplicable to section 1170.126 resentencing. Moreover, even if the

court had complied with defendant’s request, it would not have changed his sentence; he

would still be serving a 35-year- to-life indeterminate term. The mandatory sentence for

the violent felony of robbery with 10 prior strike convictions and two prior prison terms



                                              4
is still an indeterminate term of imprisonment of 35 years to life. (§ 667, subds. (a)(1) &

(e)(2)(A)(ii).) Second, as defendant admits, the jury convicted him of a violent felony,

bank robbery, making him ineligible for resentencing pursuant to section 1170.126.

(§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C), 667.5, subd. (c)(9).)

       Third, all defendant’s 11 prior strike convictions are robberies which would,

likewise, qualify as violent felonies, making him ineligible for resentencing under

section 1170.126 regarding either count 1 or 2. (§§ 1170.126, subd. (e)(2), 667,

subd. (e)(2)(C), 667.5, subd. (c)(9).) Fourth, with respect to 10 of defendant’s prior

robbery convictions, allegations defendant personally used a firearm were found true

(§ 12022.5.). Thus, 10 of his prior convictions would doubly qualify as violent felonies,

making him ineligible for resentencing pursuant to section 1170.126. (§§ 1170.126,

subd. (e)(2), 667, subd. (e)(2)(C), 667.5, subd. (c)(8).) Thus, the court properly denied

defendant’s motion for resentencing. Under People v. Kelly (2006) 40 Cal.4th 106, we

have conducted an independent review of the record and find no arguable issues.




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                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                 RAMIREZ
                                                           P. J.
We concur:



HOLLENHORST
                         J.



KING
                         J.




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