Filed 3/11/15 P. v. Robinson CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B257840

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA131901)
         v.

ZALMON DARNELL ROBINSON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Paul A.
Bacigalupo, Judge. Affirmed as modified.


         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.


         No appearance for Plaintiff and Respondent.




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       Zalmon Darnell Robinson appeals from a judgment following his conviction for
robbery and attempted robbery. Pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende), appellant’s counsel filed an opening brief requesting that this court review the
record and determine whether any arguable issues exist on appeal. We have reviewed the
entire record and find no arguable issue. We correct errors in the abstract of judgment
and affirm.1
                               PROCEDURAL HISTORY
       An amended information charged appellant with one count of attempted second
degree robbery (Pen. Code, §§ 211, 664; count 1) and one count of second degree
robbery (Pen. Code, § 211; count 2). It alleged appellant had suffered two prior
convictions that qualified as “strikes” (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)) and as serious felony priors (§ 667, subd. (a)(1)). It also alleged appellant had
served three prior prison terms. (§ 667.5, subd. (b).)
       Before trial, the court heard and denied appellant’s motion to relieve his counsel
pursuant to People v. Marsden (1970) 2 Cal.3d 118. At the request of the defense, the
court instructed the jury on the lesser included offenses of attempted petty theft and grand
theft. During deliberations, the juror foreperson reported that there was yelling in the
jury room; Juror No. 2 slept during trial; and Juror No. 2 stated he believed appellant was
not properly represented because he did not testify. When questioned by the court, Juror
No. 2 felt strongly about appellant not testifying despite a jury instruction stating
appellant had a right not to testify; he admitted looking at a law book the previous
evening to research the elements of the charged offense; and he told the court he was a
former law student. Over defense counsel’s objection, the court excused the juror.




1       We received and filed a request from appellant for a reporter’s transcript of a
hearing reflected in a May 29, 2014 minute order. The minute order indicates appellant
rejected the prosecution’s plea offer and the matter was transferred to another department
for trial. Appellant has not identified what issues might be presented in the transcript of
that hearing and we cannot conceive of any. His request is denied.

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       The jury found appellant guilty on both counts. The trial court later found the
prior allegations true. At sentencing, defense counsel moved to strike one of appellant’s
prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497
and requested the court impose a two-strike sentence of 23 years. The court noted
appellant was physically abused as a child and suffered from untreated mental illness, but
it denied the Romero motion in light of appellant’s lengthy criminal history, his parole
status at the time of the current crimes, and his willingness to rob a victim in a
wheelchair, showing he was a danger to society. The court sentenced him to 35 years to
life, consisting of 25 years to life on count 2, plus a consecutive 10 years for the two prior
serious felonies. The court imposed a concurrent 25 years to life sentence on count 1,
plus a concurrent 10 years for the two prior serious felonies. The court also imposed but
stayed the three 1-year enhancements for the prior prison terms under section 667.5,
subdivision (b). The court awarded 206 days of presentence credit and assessed a $300
restitution fine; a $300 parole revocation fine, stayed; an $80 court security fee; and a $60
criminal conviction assessment. Appellant timely appealed.
                                STATEMENT OF FACTS
       On January 31, 2014, at 10:30 a.m., Cesar Hernandez was cleaning his garage
when appellant entered with his hands in his sweater like he was holding a gun.
Appellant said he was going to take whatever he wanted, and Hernandez told him to go
ahead. Appellant grabbed a bag of tools and walked out of the garage. He then reentered
the garage and took Hernandez’s cell phone and Bluetooth headset. Appellant did not
threaten or touch Hernandez, although Hernandez found appellant’s behavior abnormal.
       After appellant left the garage the second time, Hernandez called 911. While on
the phone with the 911 operator, Hernandez got into his car and followed appellant. Two
Los Angeles County Sheriff’s Department deputies responded to the call, looking for a
suspect described as a Black male wearing a gray sweater and black pants.
       Lawrence Thomas, who was confined to a wheelchair, was in the parking lot of
the Alatorre Market when appellant approached and put his hand in Thomas’s pocket.
Thomas clamped appellant’s arm so he could not pull anything out. Appellant responded

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by raising his hand and threatening to strike Thomas. Thomas released appellant’s arm
and appellant left the area. Thomas noticed appellant’s eyes were red and “tight.”
Thomas was able to flag down a police officer, who found Hernandez’s Bluetooth
headset and charger near a trash can in the store’s parking lot, which was three or four
blocks from Hernandez’s garage. In the meantime, appellant was arrested a block from
the store, matching the description given to officers.
       Thomas and Hernandez identified appellant in the parking lot. Officers recovered
Hernandez’s cell phone and they returned it and his Bluetooth device to him. They found
only one of Hernandez’s socket tools, and 15 to 17 of them remained missing.
                                      DISCUSSION
       We appointed counsel to represent appellant on this appeal. After reviewing the
record, appellant’s court-appointed counsel filed an opening brief asking this court to
review the record independently pursuant to Wende, supra, 25 Cal.3d at page 441. On
November 26, 2014, we advised appellant he had 30 days to submit any contentions or
issues he wished us to consider. On December 26, 2014, appellant filed a request to
relieve his current counsel, which this court denied. At no time has appellant filed a
supplemental brief or requested additional time to do so.
       We have examined the entire record. We are satisfied no arguable issues exist and
appellant’s counsel has fully satisfied his responsibilities under Wende. (Smith v.
Robbins (2000) 528 U.S. 259, 279-284; Wende, supra, 25 Cal.3d at p. 441; see People v.
Kelly (2006) 40 Cal.4th 106, 123-124.)
       The abstract of judgment contains errors that must be corrected, however. The
record actually contains two abstracts of judgment, one on the form designated for an
indeterminate sentence and a second designated for a determinate sentence. The
indeterminate form correctly reflects appellant was sentenced to 25 years to life on count
2, but it listed only one 5-year prior serious felony enhancement and one stayed one-year
prior prison term enhancement. The determinate form incorrectly reflects appellant was
sentenced to a stayed term of six years on count 1, plus one 5-year prior serious felony
enhancement plus one stayed one-year prior prison term enhancement. As outlined

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above, appellant’s correct sentence is 35 years to life consisting of 25 years to life for
count 2, plus 10 years for the two prior serious felonies, and a concurrent term of 25
years to life for count 1, plus a concurrent 10 years for the two prior serious felonies.
       Further, the trial court was not permitted to impose a five-year enhancement under
section 667, subdivision (a)(1) for a prior serious felony conviction and a one-year
enhancement under section 667.5, subdivision (b) for the prison term served for that same
conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153.) Although at sentencing
the trial court did not specify which prior convictions supported the enhancements, in the
amended information one of the prior convictions was alleged to support both a prior
serious felony enhancement and a prison term enhancement. For that reason, we must
strike one of the one-year enhancements under section 667.5, subdivision (b). For the
remaining two 1-year prior prison term enhancements, the trial court was not permitted to
impose and stay those terms; it was required to either impose them or strike them.
(People v. Langston (2004) 33 Cal.4th 1237, 1241.) By staying those terms the trial court
expressed a clear intent not to add them to appellant’s sentence, so we will strike them in
lieu of remanding for further proceedings. (§ 1260; People v. Jefferson (2007) 154
Cal.App.4th 1381, 1388.)
                                      DISPOSITION
       The abstract of judgment must be corrected to reflect a sentence on count 2 of 25
years to life, plus 10 years for the two prior serious felonies, and a concurrent sentence on
count 1 of 25 years to life, plus a concurrent 10 years for the two prior serious felonies.
The three 1-year prior prison term enhancements under section 667.5, subdivision (b) are
stricken. The trial court is directed to forward a corrected abstract of judgment to the
Department of Corrections and Rehabilitation.
       As modified, the judgment is affirmed.




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                         FLIER, J.
WE CONCUR:




    BIGELOW, P. J.




    GRIMES, J.




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