P. v. Roberts
A jury found defendant and appellant Clarence Roberts, Jr., (hereafter defendant) guilty of attempted robbery (count 2) and robbery (count 3). After defendant waived his right to a jury, the trial court made true findings on allegations under the Three Strikes law that defendant previously had twice been convicted of robbery and on an allegation under Penal Code section 667, subdivision (a)(1) that defendant had previously been convicted of a serious felony. The trial court sentenced defendant to serve a determinate term of five years in state prison on the section 667, subdivision (a)(1) prior conviction, and in accordance with the mandate of the Three Strikes law, the trial court sentenced defendant to serve a term of 25 years to life in state prison on count 2 and count 3, to be served consecutively.
Defendant raises two claims of error in this appeal. First, he contends that the trial court should have instructed the jury on attempted theft and theft as lesser included offenses to the charged crimes. Next, defendant contends that the trial court erred in finding that the victim of count 2 was unavailable as a witness, and, based on that finding, admitting her preliminary hearing testimony into evidence at trial. Court agree with this latter assertion, for reasons Court explain below, and therefore reverse defendants attempted robbery conviction.
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