Pursuant to Penal Code section 664, the penalty for attempted first degree residential robbery in concert is one-half the term set forth in section 213, subdivision (a)(1)(A). A jury convicted Epperson and his two codefendants of a number of offenses, including four counts of attempted first degree robbery (Pen. Code, §§ 664, 211, 212.5). The jury also found that the attempted robberies were committed in concert with two or more persons. (Pen. Code, § 213, subd. (a)(1)(A).) With respect to the attempted robberies, the trial court sentenced Epperson to consecutive one-year subordinate terms calculated as one-third of half the mid-term pursuant to Penal Code section 213, subdivision (a)(1)(A), section 664, subdivision (a), and section 1170.1, subdivision (a). Epperson appealed, arguing that the enhanced term provided in section 213, subdivision (a)(1)(A) was unauthorized because that subdivision deals with completed robberies in concert but does not mention attempted robberies in concert. Held: Affirmed. Section 213, subdivision (a)(1)(A) provides an elevated sentencing range for first degree residential robbery in concert (3, 6, or 9 years). After discussing a line of cases holding that enhancements or penalty provisions do not apply to attempts unless they expressly include attempts (see, e.g., People v. White (1987) 188 Cal.App.3d 1128, 1138), the Court of Appeal concluded that section 213, subdivision (a)(1)(A) was unlike the statutes at issue in those cases. Nothing in the language of section 213, subdivision (a)(1)(A) suggests that it is improper to apply section 664, subdivision (a) in the case of an attempted first degree residential robbery where an in-concert allegation has been found true. The legislative history supports the conclusion that the sentencing range for attempted robbery in concert would be half the sentencing range for robbery in concert under section 664. The trial court did not err.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A145868.PDF
