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People v. Cabrera

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Feb 14, 2012
B233875 (Cal. Ct. App. Feb. 14, 2012)

Opinion

B233875

02-14-2012

THE PEOPLE, Plaintiff and Respondent, v. OSCAR ESTUARDO CABRERA, Defendant and Appellant.

California Appellate Project, Jonathan B. Steiner, Executive Director, and Ann Krausz for Defendant and Appellant. No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. VA118347)

APPEAL from a judgment of the Superior Court of Los Angeles County, Margaret M. Bernal, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner, Executive Director, and Ann Krausz for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant Oscar Estuardo Cabrera was convicted by jury in count 1 of attempted second degree robbery in violation of Penal Code sections 664 and 211.The jury found that defendant personally used and discharged a firearm in the commission of the offense within the meaning of section 12022.53, subdivisions (b) and (c). In count 2, defendant was convicted of discharging a firearm with gross negligence in violation of section 246.3, subdivision (a).

All statutory references are to the Penal Code.

The trial court sentenced defendant to a total of 22 years in state prison, consisting of the midterm of 2 years for the attempted robbery, enhanced by 20 years for the section 12022.53, subdivision (c) allegation. The sentence as to count 2 and the section 12022.53, subdivision (b) finding were stayed. Defendant filed a timely notice of appeal.

Counsel was appointed to represent defendant on appeal. Appointed counsel filed a brief raising no issues, but requested this court to independently review the entire appellate record for arguable contentions under People v. Wende (1979) 25 Cal.3d 436.

We advised defendant of his right to file a supplemental brief. Defendant filed a letter brief, written in Spanish. We obtained a certified translation of the letter brief. In his brief, defendant asks for leniency from what he feels is an excessive sentence. Defendant states he does not belong to a gang, has no record, and asks to be given a chance. He has met other inmates who received lesser sentences for the same crime or more serious offenses. His wife died, and he has three small children who need him. Defendant admits he made a mistake and is sorry. Defendant is in the country illegally and would like to be sent back to Guatemala to serve his time and see his children.

FACTS

Catalina Garcia was waiting for a bus in the City of Vernon on January 23, 2011, when defendant approached, pointed a handgun to Garcia's head and said, "Don't move." Garcia ran away in fear with defendant giving chase. Defendant caught up to Garcia, grabbed her, and put the gun to her neck. He said, "Don't scream." Defendant fired a shot into the air.

Three occupants in a passing car saw what looked like an argument between defendant and Garcia. Defendant drove from the scene after an occupant of the car shined a flashlight on defendant. One of the occupants of the car wrote down the license number of the vehicle driven away by defendant. Defendant was stopped while driving his vehicle in Vernon shortly after the incident was reported to the Vernon police. Garcia was taken to the location of the stop, where she identified both defendant and his vehicle. The .38-caliber revolver defendant used in the attack on Garcia was recovered from his vehicle, fully loaded except for one expended casing in the cylinder, along with loose ammunition in the vehicle.

After initially denying responsibility, defendant admitted to a police officer that he had tried to rob a woman for beer money. Defendant said she ran away, he chased her, and fired a shot into the air. Defendant told the officer he had consumed approximately eight beers.

Defendant testified on his own behalf that he drank about 24 beers on the day of the offenses. He did accost Garcia for money and shoot the gun, but the shooting was unintentional.

DISCUSSION

We reject defendant's contention that his sentence is impermissibly excessive. Under section 12022.53, subdivision (c), "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years." The 20-year enhancement applies to attempted robbery. (§ 12022.53, subd. (a)(4), (18).)

A mandatory punishment may be cruel or unusual punishment, which is prohibited by article I, section 17, of the California Constitution, as applied to a particular defendant. (People v. Dillon (1983) 34 Cal.3d 441, 478.) Courts defer to the Legislature in choosing the appropriate penalty and should not intervene unless the prescribed punishment is out of proportion to the crime. (Ibid.) The court's task is limited to determining whether the punishment "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) We look to the nature of the offense and of the offender, and consider the circumstance of the particular offense such as the defendant's motive, the way the crime was committed, the extent of his involvement, and the consequences of his acts. (Dillon, supra, at p. 479.) "[A] punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant's individual culpability." (Id. at p. 480.)

The sentence imposed on defendant was not cruel or unusual punishment in the abstract or as applied to defendant. Defendant attempted to take advantage of Garcia as she was alone waiting for a bus. At various times, he placed a gun to her head and to her neck. Defendant threatened Garcia, chased her down, and discharged a shot into the air. The situation was fraught with the possibility of death or great bodily injury. While defendant's lack of a prior criminal record is commendable, it does not establish that the punishment for discharging a firearm in a felony was cruel or unusual under the California Constitution. Defendant's lack of a criminal history was taken into account by the trial court in imposing the midterm punishment of two years for attempted robbery, rather than the upper term.

There is nothing out of the norm of acceptability in the 22-year sentence imposed. Defendant engaged in violent conduct which endangered the life and well being of a vulnerable victim, along with others in the area of the offense. We hold that the 20-year enhancement under section 12022.53, subdivision (c) was not cruel or unusual punishment in this case.

The other issues raised in defendant's letter brief to this court are not cognizable on appeal. This court has no authority over where defendant serves his sentence and whether he has access to his children. These matters must be addressed to both the prison and federal immigration authorities.

We have examined the record for other arguable issues and find none. The judgment is affirmed. (Smith v. Robbins (2000) 528 U.S. 259.)

KRIEGLER, J. We concur:

ARMSTRONG, Acting P. J.

MOSK, J.


Summaries of

People v. Cabrera

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Feb 14, 2012
B233875 (Cal. Ct. App. Feb. 14, 2012)
Case details for

People v. Cabrera

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. OSCAR ESTUARDO CABRERA, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date published: Feb 14, 2012

Citations

B233875 (Cal. Ct. App. Feb. 14, 2012)