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BACKGROUND

Charges The Kern County District Attorney charged Banner with two counts of attempted robbery (§ 212.5). The charges included allegations of prior strike and prior serious felony convictions. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667, subd. (a).) Trial Evidence The facts are simple. Banner entered a restaurant and waited in line several minutes behind multiple customers. 3 Two employees helped each customer. When Banner reached the cash register at the front of the line, he produced a toy 4 firearm and demanded money from the employee operating the register. That employee did not believe the firearm was real and refused to comply. A second employee, standing near the register and across from Banner, ran away in fear. Banner subsequently left emptyhanded and was arrested nearby a short time later. He denied committing the crime. Verdict and Sentence Banner was convicted as charged. 5 He was sentenced to serve nine years in state prison, calculated as the middle term of two years for attempted robbery, doubled for the prior strike conviction, plus five years for the prior serious felony conviction.

These specific facts are based on a video…