People v. Roberson, 81 Cal. App. 3d 890 (Cal. Ct. App. 1978). · Go Syfert
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People v. Roberson, 81 Cal. App. 3d 890 (Cal. Ct. App. 1978). Cases Citing This Book View Copy Cite
73 citation events (4 in the last 25 years) across 3 distinct courts.
Strongest positive: People v. Valenzuela CA2/8 (calctapp, 2014-04-10)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 21 distinct citers.
discussed Cited as authority (rule) People v. Valenzuela CA2/8
Cal. Ct. App. · 2014 · confidence medium
(People v. Ratcliffe (1981) 124 Cal.App.3d 808, 821-822 [remanding for resentencing because trial court used same facts for both upper term and consecutive sentence]; People v. Roberson (1978) 81 Cal.App.3d 890, 893 [remanding for resentencing because trial court used same fact for both upper term and enhancement], overruled on other grounds by People v. Crowson (1983) 33 Cal.3d 623, 632, fn. 10 .) 11
discussed Cited as authority (rule) People v. Fernandez
Cal. Ct. App. · 1990 · confidence medium
(See, e.g., People v. Roberson (1978) 81 Cal. App.3d 890, 894 [ 146 Cal. Rptr. 777 ], disapproved on another point in People v. Crowson (1983) 33 Cal.3d 623, 632, fn. 10 [ 190 Cal. Rptr. 165 , 660 P.2d 389 ]; see also People v. Barker (1986) 182 Cal. App.3d 921, 940 [ 227 Cal. Rptr. 578 ].) Incorporation by reference, however, suggests the trial court was not aware of the dual-use danger inherent in using this factor.
discussed Cited as authority (rule) People v. Fernandez
Cal. Ct. App. · 1990 · confidence medium
(See, e.g., People v. Roberson (1978) 81 Cal.App.3d 890, 894 [ 146 Cal.Rptr. 777 ], disapproved on another point in People v. Crowson (1983) 33 Cal.3d 623, 632, fn. 10 [ 190 Cal.Rptr. 165 , 660 P.2d 389 ]; see also People v. Barker (1986) 182 Cal.App.3d 921, 940 [ 227 Cal.Rptr. 578 ].) Incorporation by reference, however, suggests the trial court was not aware of the dual-use danger inherent in using this factor.
discussed Cited as authority (rule) People v. Coleman (2×)
Cal. · 1989 · confidence medium
Accord: People v. Calhoun, supra, 125 Cal. App.3d 731, 734 ; People v. Roberson (1978) 81 Cal. App.3d 890, 893 [ 146 Cal. Rptr. 777 ].) Here, it is not clear that the threat of great bodily harm depended on the presence of the knife since such a threat might be inferred from the evidence that the victim felt at defendant's mercy because of his superior bodily strength.
discussed Cited as authority (rule) People v. Brucker
Cal. Ct. App. · 1983 · confidence medium
Defendant claims a remand for resentencing is required under either the Watson standard (People v. Watson, supra, 46 Cal.2d 818, 836 , reasonable probability of a different result occurring in absence of the alleged error), or under the standard enunciated by People v. Roberson (1978) 81 Cal.App.3d 890, 893 [ 146 Cal.Rptr. 777 ] (a remand is required where it cannot be determined whether an improper factor was determinative in the court’s sentencing choice).
discussed Cited as authority (rule) People v. Arbee
Cal. Ct. App. · 1983 · confidence medium
(People v. Roberson (1978) 81 Cal.App.3d 890, 893 [ 146 Cal.Rptr. 777 ].) *357 Although the reference to the above factor was clearly erroneous, a resentencing on this ground is not mandated due to the circumstance that the trial court listed a number of additional reasons (i.e., premeditation, pattern of violent conduct, unsatisfactory performance on probation and parole, etc.) 4 which supply sufficient basis for imposing the upper term in this case.
discussed Cited as authority (rule) People v. Crowson (2×)
Cal. · 1983 · confidence medium
(See, e.g., People v. Roberson (1978) 81 Cal. App.3d 890, 894-895 [ 146 Cal. Rptr. 777 ]; People v. Plies (1981) 121 Cal. App.3d 676, 678-682 [ 177 Cal. Rptr. 4 ]; People v. Cheri (1981) 127 Cal. App.3d 280, 283-285 [ 179 Cal. Rptr. 423 ].) In light of the language of section 667.5, subdivision (f) and past authorities interpreting a related statute, we conclude that enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all of the elements of the California felony. [10] *633 We begin with the terms of the stat…
discussed Cited as authority (rule) People v. Espinoza
Cal. Ct. App. · 1983 · confidence medium
(See People v. Roberson (1978) 81 Cal.App.3d 890, 893 [ 146 Cal.Rptr. 777 ].) The proper remedy is not to strike one enhancement as such, but rather to stay imposition of the additional term for that enhancement, as is done in the analogous area of Culbreth error.
discussed Cited as authority (rule) People v. Skenandore
Cal. Ct. App. · 1982 · confidence medium
But, compare People v. Jones (1981) 126 Cal.App.3d 308, 318 [ 178 Cal.Rptr. 818 ], and People v. Flores (1981) 115 Cal.App.3d 67, 80 [ 171 Cal.Rptr. 365 ] [harmless error rule], with People v. Lawson, supra, 107 Cal.App.3d at p. 758 , and People v. Roberson (1978) 81 Cal.App.3d 890, 893 [ 146 Cal.Rptr. 777 ] [presumptively remand].) This apparent conflict has now been resolved by the California Supreme Court which held that in such cases the harmless error rule applies.
discussed Cited as authority (rule) People v. Alvarado (2×) also: Cited "see, e.g."
Cal. Ct. App. · 1982 · confidence medium
The courts are divided on the point, some subjecting the issue to standard harmless error analysis (People v. Flores, supra, 115 Cal. App.3d 67, 80 ; People v. Jones (1981) 126 Cal.App.3d 308, 318 [ 178 Cal.Rptr. 818 ]), others inclining towards a remand for resentencing no matter how trivial the error or how many valid aggravating factors remain (People v. Jardine (1981) 116 Cal.App.3d 907, 924 [ 172 Cal.Rptr. 408 ]; People v. Garfield (1979) 92 Cal.App.3d 475, 479 [154 *1028 Cal.Rptr. 869]; People v. Roberson (1978) 81 Cal.App.3d 890, 893 [ 146 Cal.Rptr. 777 ]).
cited Cited as authority (rule) People v. Reid
Cal. Ct. App. · 1982 · confidence medium
Appel *372 lant contends this means the case must be remanded for resentencing citing People v. Roberson (1978) 81 Cal.App.3d 890, 893 [ 146 Cal. Rptr. 777).
discussed Cited as authority (rule) People v. Karsai
Cal. Ct. App. · 1982 · confidence medium
(People v. Roberson (1978) 81 Cal.App.3d 890, 892 [ 146 Cal.Rptr. 777 ].) It is unnecessary to consider, however, whether defendant’s prior record supports a finding of numerous prior convictions of increasing seriousness when the 1975 convictions are disregarded.
discussed Cited as authority (rule) People v. Bennett
Cal. Ct. App. · 1981 · confidence medium
(See also People v. Roberson (1978) 81 Cal.App.3d 890, 893 [ 146 Cal.Rptr. 777 ].) Taking by Violence The judge found that “the crime involved the taking of property by violence.” Appellant argues again that this finding could only be based on the gun use, that “there was no surplusage whatsoever in this case of violence. ...” We agree.
discussed Cited as authority (rule) People v. Edwards
Cal. Ct. App. · 1981 · confidence medium
In People v. Roberson (1978) 81 Cal.App.3d 890, 893 [ 146 Cal.Rptr. 777 ], it was held that where a threat of violence could only be based on a defendant’s use of a weapon in committing the crime, then this constituted an improper dual use of facts to both enhance (Pen.
discussed Cited as authority (rule) People v. Bejarano
Cal. Ct. App. · 1981 · confidence medium
(People v. Roberson (1978) 81 Cal.App.3d 890, 893 [ 146 Cal.Rptr. 777 ], where the aggravating factors “could only be based” on the enhancement factor; see Cal. Rules of Court, rule 409.) Further, under Penal Code section 667.5 the fact used for enhancement is not merely a prior conviction but a prior prison term.
discussed Cited as authority (rule) People v. Matthews
Cal. Ct. App. · 1980 · confidence medium
In its brief filed March 21, 1980, the People agree with Matthews that he should be resentenced in the light of People v. Harvey (1979) 25 Cal.3d 754, 761 [ 159 Cal.Rptr. 696 , 602 P.2d 396 ], considering also People v. Benton (1979) 100 Cal.App.3d 92, 102 , [ 161 Cal.Rptr. 12 ] and People v. Roberson (1978) 81 Cal.App.3d 890, 894-895 [ 146 Cal.Rptr. 777 ].
cited Cited as authority (rule) People v. Lawson
Cal. Ct. App. · 1980 · confidence medium
(See People v. Roberson (1978) 81 Cal.App.3d 890, 893 [ 146 Cal.Rptr. 777 ].) The judgment is reversed for the limited purpose of resentencing in accordance with the principles expressed herein.
discussed Cited as authority (rule) People v. Ramos
Cal. Ct. App. · 1980 · confidence medium
This was also recognized in People v. Roberson (1978) 81 Cal.App.3d 890, 893 [ 146 Cal.Rptr. 777 ], where the court stated: “If the armed allegation is determinative for the court in finding aggravation then it must decide whether this fact is to be used to aggravate or to enhance, one or the other, but not both as was done here.” (Italics added.) Furthermore, there is no indication that the Legislature intended to preclude an application of a less stringent standard of proof to aggravation factors.
cited Cited as authority (rule) People v. Davis
Cal. Ct. App. · 1980 · confidence medium
(People v. Roberson (1978) 81 Cal.App.3d 890, 892 [ 146 Cal.Rptr. 777 ]; § 1170, subds. (b), (c); Cal. Rules of Court, rule 441(c).) 2.
discussed Cited as authority (rule) People v. Mathews
Cal. Ct. App. · 1980 · confidence medium
(People v. Garfield (1979) 92 Cal.App.3d 475, 479 [ 154 Cal.Rptr. 869 ]; People v. Roberson (1978) 81 Cal.App.3d 890, 893 [ 146 Cal.Rptr. 777 ].) Ill Related to this claimed sentencing error is appellant’s argument that the court erred in concluding that appellant’s criminal acts bespoke sophistication and professionalism—both of which are factors listed in Rules of Court, rule 421(a)(8) as justifying imposition of the upper term. .
cited Cited as authority (rule) People v. Smith
Cal. Ct. App. · 1980 · confidence medium
(See People v. Roberson (1978) 81 Cal. App.3d 890, 893-894 [ 146 Cal.Rptr. 777 ].) The question becomes whether a remand for resentencing is required.
The PEOPLE, Plaintiff and Respondent,
v.
JACKIE EUGENE ROBERSON, Defendant and Appellant
Crim. 8774.
California Court of Appeal.
Jun 16, 1978.
81 Cal. App. 3d 890
Counsel, Appellate Defenders, Inc., under appointment by the Court of Appeal, Barry D. Utsinger and Michael Meaney for Defendant and Appellant., Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, Alan S. Meth and Patricia D. Benke, Deputy Attorneys General, for Plaintiff and Respondent.
Brown (Gerald).
Cited by 36 opinions  |  Published

Opinion

BROWN (Gerald), P. J . —

Jackie Eugene Roberson pied guilty to using a firearm to rob a Jolly Roger Restaurant (Pen. Code, ’§§ 211, 12022.5, 1203.06, subd. (a)(l)(iii)) and admitted two prior convictions. He appeals the judgment claiming his sentence was improperly computed.

The new sentencing law provides three possible terms: the lowest is to be used where there are mitigating circumstances and the highest when there are aggravating circumstances (Pen. Code, § 1170). Use of a firearm and prior convictions may serve as aggravating circumstances (Cal. Rules of Court, rule 421). Enhancements may be added to the base term after certain findings are made. Two of these are a two-year enhancement for use of a firearm (Pen. Code, § 12022.5) and a one-year enhancement for each prior felony conviction (Pen. Code, § 667.5). However, the finding of gun use or prior conviction may only be used once, that is, either as an aggravating circumstance warranting imposition of the longest term or as an enhancement (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 441(c)). Roberson says the court used the findings for both.

Here Roberson was charged with robbery while armed and being an ex-felon in possession of a concealable firearm (Pen. Code, § 12021). In addition it was alleged he had six prior felony convictions:

1. December 21, 1954 — robbery with firearm, second degree burglary

2. June 10, 1957 — second degree burglary

3. April 19, 1960 — robbery with firearms

[*893] 4. April 10, 1962 — robbery with firearms [1]

5. June 17, 1966 — assault with a deadly weapon

6. April 19, 1971 — possession of firearms after conviction of a felony.

Roberson pied guilty to the robbery and admitted the last two priors. At sentencing the trial court, with regard to the aggravated sentence, said: “[I]t will be the judgment and sentence of this Court that for the crime of robbery in violation of Penal Code section 211, that the Defendant be sentenced to serve a base term of four years, and I am selecting the aggravated upper term for the following reasons: The crime involved the threat of violence and callousness on the part of this Defendant; the crime involved some degree of planning as evidenced by the fact that he had the weapon and a ski mask, as I recall; the facts pertaining to the Defendant are that he is continuing to engage in a pattern of violent conduct and presents a serious danger to society; his prior adult convictions, felony convictions, certainly indicate excessive criminality on his part which would justify the Court selecting the upper term based upon aggravated circumstances.” The threat of violence and possession of the weapon as an indication of planning could only be based on Roberson’s use of the weapon in committing this very crime; the pattern of violent conduct would be based on the priors.

As for the enhancement for being armed, a two-year additional term, the court said: “It has also been charged and admitted that in connection with the crime of robbery, that the Defendant was personally armed with a firearm in violation of 12022.5, and the Court having not relied upon this finding in selecting the aggravated term and finding no facts or factors in mitigation specifically orders that two additional years be imposed for the enhancement called for by this Section, and that the additional two years be served consecutive to the sentence imposed upon the base term.” However, this fact had been used to aggravate the crime and could not be used a second time. Although advance planning of the crime as evidenced by the ski mask and his pattern of violent conduct would of themselves be sufficient to find aggravation, the court is not bound to do so. If the armed allegation is determinative for the court in finding aggravation then it must decide whether this fact is to be used to aggravate or to enhance, one or the other, but not both as was done here. The case must be remanded for resentencing.

[*894] As for the enhancements for prior convictions, a one-year additional term, the court said:

“In addition, the Court will find that it was charged and admitted by the Defendant, prior to the commission of the robbery offense charged in the Information, served separate prison terms exceeding one year for the following crimes: Assault with a deadly weapon and carrying a firearm after being convicted of a felony. And that occurred in Tulsa, Oklahoma in criminal case 21913 and in criminal case 21914 in the year 1966. And the Court not having relied upon that fact, that prior felony conviction in selecting the base term of four years for the robbery and finding no factors in mitigation, specifically orders that one additional year be served for that prior felony conviction.

“The Court will also find that it has been charged and admitted by the Defendant that prior to this robbeiy he served a separate prison term exceeding one year in Tulsa, Oklahoma for the crime of possession of a firearm after being convicted of a felony which, in this jurisdiction, would meet our California standards and call for punishment in excess of one year. And not having relied upon that prior felony conviction and the service of the prison term in selecting the base term of four years for the robbery and finding no factors in mitigation, specifically orders that an additional one year be imposed for this felony conviction to be served consecutive to the sentences previously imposed for the robbeiy and the 12022.5 enhancement and the first felony conviction. So that the total effect of these sentences and all of these enhancements will be eight years less any credit for good time.”

Unlike the situation with the use allegation, here there were five priors. Two were used as enhancements. The remaining three were sufficient to show a pattern of violent conduct and excessive criminality in support of an aggravated sentence.

Roberson says the enhancement based on his admission of a 1971 “possession of firearm after conviction of a felony” prior conviction must be stricken because it took place in Oklahoma and would not be a felony in California as Penal Code section 667.5, subdivision (f) says it must be. Possession of a firearm by an ex-felon is not a felony in California unless the weapon is concealable (Pen. Code, § 12021), is possessed by a prisoner (Pen. Code, §§ 4502, 4574), or was used in the commission of a prior felony (Pen. Code, § 12560). None of these facts were alleged by the People nor admitted by Roberson. Unless the People[*895] can show this offense was a felony at the resentencing hearing, the prior must be stricken.

The judgment is reversed and remanded for resentencing in harmony with this opinion.

Cologne, J., and Staniforth, J., concurred.

A petition for a rehearing was denied July 3, 1978, and the opinion was modified to read as printed above. Respondent’s petition for a hearing by the Supreme Court was denied August 31, 1978. Clark, J., was of the opinion that the petition should be granted.

1

Although listed separately, it was later determined that the 1960 and 1962 convictions were the same.