Banks

RYLAARSDAM, Acting P.J.

Defendant William Adam Banks and two other men entered a sandwich shop displaying what appeared to be a gun. After taking money from the till, a tip jar, and one of the store's two employees, defendant and his confederates forced their victims into a refrigerator. Based on this evidence, a jury found defendant guilty of two counts of second degree robbery, one count of commercial burglary, and two counts of false imprisonment by violence.

The trial court sentenced defendant to six years in prison, consisting of the five-year upper term for the first robbery and a consecutive one-year term on the second. It stayed sentencing on the burglary count (Pen.Code, § 654) and imposed concurrent two-year terms on the false imprisonment with violence counts. In choosing the upper term on count 1, the court cited defendant's "leadership role" in the undertaking', which involved "some planning and sophistication," "a high degree of cruelty," and defendant's use of "at least [the] replica" of a gun. The court also noted his "well documented" "priors and the fact" he "ha[d] not been doing well on probation or parole."

Defendant's sole appellate claim is that the upper…