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Punishment for Attempted First Degree Residential Robbery

Brief Synopsis: A sentence for attempted first-degree residential robbery in concert is one-half the full term, so three, four or six years.
On October 11, 2012, in Solano County, California, James David Epperson and two others armed themselves with guns and broke into the house of Amy Eustice.

At the time, Eustice had several guests over.  One called 911 and police were sent to the house.  In the meantime, Epperson and his two friends threatened, robbed and attempted to rob Eustice and her guests.

Police arrived at the scene before Epperson and his cohorts could escape.  They were arrested, charged and convicted before a jury.

Epperson was convicted of two counts of first degree robbery (Penal Code § 211, 212.5(a)), four counts of attempted first degree robbery (Penal Code §§ 211, 212.5(a), 664), one count of first degree burglary (Penal Code § 459), false imprisonment by violence (Penal Code § 236), assault with a firearm (Penal Code § 245(a)(2)), and criminal threats (Penal Code § 422).  The enhancement for personal use of a firearm (Penal Code §12022.5(a) and 12022.53(b) were found true.  Lastly, the jury also found that Epperson acted in concert within the meaning of Penal Code § 213(a)(1)(A).

The judge in Solano County sentenced Epperson to a total term of 40 years and four months in state prison.  The sentence was composed of a six-year middle term for the first-degree robbery, plus a consecutive ten-year term for the firearm enhancement under Penal Code § 12022.53(b).  The court then added a consecutive two-year term (one-third the middle six-year term) for first degree robbery plus a three-year, four-month term (one third the middle ten-year term) for the firearm enhancement.  The court then added four consecutive one-year terms for four attempted first-degree robbery counts (half of one-third the middle term for residential burglary in concert), plus consecutive terms of three years and four months for the firearm enhancement (one-third the ten-year term for the firearm enhancement) for each count.

Court of Appeal First Appellate District San FranciscoCourt of Appeal First Appellate District San Francisco

In addition, the court imposed a consecutive one-year term (one-third the middle term) for the assault with a firearm count and a consecutive eight-month term (one-third the middle term) for the criminal threats count.  The court stayed (did not impose) the terms on the burglary and false imprisonment counts under Penal Code § 654.

Epperson appealed his sentence to the First Appellate District arguing that his sentencing under first degree robbery were improper because Penal Code § 213(a)(1)(A) only applies to completed robberies, but his crime was only an attempted first-degree residential robbery, which has no explicit punishment.

The First Appellate District, in People v. James David Epperson (2017 DJDAR 217), disagreed, noting that Penal Code § 664 established that if a crime is attempted and there is no statutory sentence for such an attempt, the offender will be imprisoned for half the sentence for a completed first-degree residential robbery committed in concert, in other words, three, four, or six years.

Epperson argued that an attempted crime is a different offense than a completed offense and thus, the increased penalties for first-degree residential robbery should not apply to him.  He then cited to a series of cases where an attempted offense was found distinguishable from a completed offense.

The First Appellate District looked at each of these cases, but noted that none applied to first degree residential robbery.  Instead, they applied to oral copulation, kidnapping, attempted murder and attempted conspiracy to commit a drug offense.  Consequently, the appellate court instead was guided by section 664, which mandated that attempted felonies merited imposition of half the sentence of a completed felony.

Thus, the appellate court found that the Solano County judge, Daniel Healy, had not made a mistake in sentencing as alleged by Epperson.

Other parts of the sentence were also challenged by Epperson and the appellate court did find modifications to the sentence were warranted.  Such changes were for firearm enhancements under Penal Code §12022.53(a) and § 12022.53(b).

The citation for the First Appellate District Court ruling discussed above is People v. James David Epperson (1st App. Dist., 2017) 7 Cal.App.5th 385.

For more information about crimes of burglary, attempt and robbery, please click on the following articles:
  1. First Degree Burglary Conviction Upheld When Residential Home Uninhabited and Realtor’s Wallet Is Stolen 
  2. Attempted Extortion Must Involve Compelling Consent to Pay
  3. Opening a Garage Door with a Stolen Garage Door Opener Is Only Attempted Burglary, Not a Completed Burglary
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