Reyes

After a jury trial, defendant was convicted of one count of robbery (Pen. Code, § 211) but acquitted of the special allegation that during the robbery he inflicted great bodily injury on a person who was 60 years of age or older. (§ 1203.09, subd. (a).) Defendant was sentenced to the upper term of five years. Defendant appeals, contending that the court erred in failing to consider defendant’s alcoholism as a circumstance in mitigation, by imposing the upper term for inflicting great bodily injury when he was acquitted of that charge by the jury, by instructing the jury with CALJIC No. 2.21, and by imposing a restitution fine of $300. We affirm.

So far as it is pertinent to this appeal, the evidence showed that defendant hit the 74-year-old victim, Wilfred Marsden, on the head as Marsden bent down to put his key into the lock of his apartment house. The blow knocked Marsden down, and defendant then alternately beat Marsden and rummaged through his pockets, taking Marsden’s change purse and wallet containing $330. Marsden sustained bruises on his head, his nose was cut and required three stitches, he had a cut running back from his Up towards his right ear that required…