Cortez

Peter Cortez appeals his conviction of robbery (Pen. Code, § 211) based upon his plea of guilty. He challenges the court’s imposition of the upper base term of five years for the crime.

Cortez entered a Seven-Eleven store about 3 a.m., poked a screwdriver to Henry Virgil’s ribs and took money from the store. In the course of this transaction, Robert DeRosa entered the store. Cortez demanded money from DeRosa too, but didn’t get any. Cortez said he had a friend outside with a shotgun.

Cortez was charged with robbing Virgil and attempting to rob DeRosa. As to each count it was alleged Cortez used a dangerous or deadly weapon, the screwdriver, within the meaning of Penal Code section 12022, subdivision (b).

As part of a plea bargain, the attempted robbery count concerning DeRosa was dismissed and the dangerous weapon allegation was stricken from the robbery count. Cortez was on probation for an earlier robbery at the time he robbed Virgil. He had been out of custody for only 26 days. As part of the plea bargain, the court terminated the earlier probation.

In imposing the upper term of five years for the robbery the court noted: “The Court: Well, I must say, when I look…