Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR225238
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
After a trial, the jury convicted defendant Michael Harris of second degree robbery (Pen. Code, § 211 ), and found true sentence enhancement allegations that he had personally used a firearm in the commission of the robbery (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). The court imposed a sentence of 12 years, consisting of the low term of two years for robbery plus a consecutive term of ten years required under section 12022.53, subdivision (b). On appeal, defendant contends the trial court should have stricken the section 12022.53 enhancement because the 10-year mandatory term was so grossly disproportionate to his individual culpability as to constitute cruel or unusual punishment in violation of California Constitution, article 1, section 17. We disagree, and accordingly, affirm.
All further unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
At the trial, the 19 year-old female robbery victim testified that on June 27, 2005, at about 10:00 a.m., she left the apartment of her friend and walked to her car that was parked in the lot of the apartment building complex. She was initially approached by defendant, who was later joined by a juvenile, L.W. The victim had previously seen both men in the area of the robbery when she visited her friend. She had spoken to the men in casual conversation but they were not friends and she did not otherwise associate with them. Defendant pointed a small, silver gun at the victim and walked towards her. When he reached her, he placed the gun in her side so no one would know what he was doing. Although the gun was touching her side, it did not leave any marks.
When asked how she knew defendant was holding a gun, she replied, “I seen the top part, the silver part of the gun and the revolver part that goes around and around.” She later explained that she saw defendant’s finger on the trigger, and she saw a round cylinder and the top of the gun. Before the incident the victim did not have any previous exposure to guns and she had never seen the type of gun that defendant held, but she had no doubt that he held a gun to her side. After she described the parts of the gun she had seen to her family and the police, she learned that what she saw was the “cylinder” of a “revolver” type gun. She could not tell if there were any bullets in the gun, but she could see that the gun was metal and when the gun was put into her side, she could feel that it was not light.
During the incident, defendant told the victim to give him what she had and he repeatedly told her that she “better not say nothing.” The victim understood defendant’s statements to mean that she was not to tell the police. The victim gave defendant about $50 and her cellular phone. He then told her to take off her shoes and give them to him, and she complied. He also asked her to unlock her car and she did so. Defendant told L.W. to go into the car and take the victim’s purse. The victim thought defendant and L.W. must have been looking at her car before the robbery because they knew exactly where her purse was in the car, partially under the driver’s seat in the back. After taking the purse, the men walked away.
The victim was scared during the robbery. After the incident, she was very upset, crying, and hysterical. She ran to her friend’s home and called her mother. The victim’s mother called the police. After viewing photographic arrays prepared by the police, the victim identified defendant and L.W. as the robbers, and defendant as the armed robber. Defendant presented no witnesses.
The jury convicted defendant of second degree robbery and also found true that he was personally armed with a firearm during the robbery, pursuant to sections 12022.5, subdivision (a), and 12022.53, subdivision (b). Before sentencing, defendant moved to strike the jury’s section 12022.53, subdivision (b), true finding on the ground that imposing the required 10-year sentence would be cruel or unusual punishment in violation of the California Constitution, article I, section 17. The prosecution opposed the motion. After considering the parties’ written submissions, oral argument, and applicable case law, the court denied the motion to strike the jury’s true finding of the section 12022.53 enhancement.
The court imposed the low term of two years for the robbery offense plus the 10 year sentence enhancement under section 12022.53, subdivision (b), for a total term of 12 years. In choosing to impose the low term on the robbery offense, the court considered defendant’s youth, his lack of any significant criminal history, that the victim was traumatized but not injured, and that the defendant was subject to the 10-year sentence enhancement under section 12022.53, subdivision (b).
DISCUSSION
Defendant contends the imposition of the section 12022.53 sentence enhancement constitutes cruel or unusual punishment because “it is grossly disproportionate to the offense for which it was imposed.” (People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon); see In re Lynch (1972) 8 Cal.3d 410, 424.) We disagree.
“Section 12022.53, subdivision (a) lists a number of violent felonies, including [robbery], and subdivision (b) specifies that, ‘[n]otwithstanding any other provision of law, any person who is convicted of [such] a felony . . . and who in the commission of that felony personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.’ Moreover, this firearm enhancement may not be stricken pursuant to [s]ection 1385 or any other provision of the law.’ (Id., subd. (h).)” (People v. Felix (2003) 108 Cal.App.4th 994, 999 (Felix).) In enacting the section 12022.53 sentence enhancement, the Legislature determined “that the use of firearms in commission of the designated felonies is such a danger that, ‘substantially longer prison sentences must be imposed . . . in order to protect our citizens and to deter violent crime.’ The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives. [Citations.]” (People v. Martinez (1999) 76 Cal.App.4th 489, 497-498 (Martinez).)
Despite the mandatory nature of the section 12022.53 sentence enhancement, such punishment may not be imposed if “it 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, supra, 8 Cal.3d at p. 424, fn. omitted; see Dillon, supra, 34 Cal.3d at p. 487, fn. 38.) “An examination of the nature of the offense and of the offender, ‘ “with particular regard to the degree of danger both present to society,” ’ is particularly relevant in determining the issue. (Dillon, supra, 34 Cal.3d at p. 479.) In assessing the nature of the offense, a court should 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. (Ibid.) In analyzing the nature of the offender, a court should consider his ‘age, prior criminality, personal characteristics, and state of mind.’ (Ibid.) ‘[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.)” (Felix, supra, 108 Cal.App.4th at p. 1000.) “Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.” (Martinez, supra, 76 Cal.App.4th at p. 496.)
“In re Lynch, supra, 8 Cal.3d 410 prescribed two other ‘techniques’ for assessing whether a particular punishment is cruel or unusual: comparing the punishment to other punishments imposed by the same jurisdiction for more serious offenses and comparing the punishment to other punishments imposed by other jurisdictions for the same offense. (Id. at pp. 426-427 [.])” (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214.) Defendant does not challenge the constitutionality of the section 12022.53 sentence enhancement by the two other techniques mentioned in In re Lynch, supra, 8 Cal.3d 410, 426-427.
As to the nature of the offense, defendant argues that we should consider that the evidence does not suggest he planned the robbery or enjoined, coerced or provided any incentive to his accomplice to participate, that the gun was never fired and he never threatened to fire the gun, there was no evidence showing that the gun was loaded or even functional, that his placement of the gun against the victim’s side did not leave any mark, and the actual monetary harm suffered by the victim was relatively minor. However, none of these factors, either singularly or collectively, lessen the severity of defendant’s actions. Defendant was obviously the dominant participant in the commission of the robbery. He armed himself with a firearm, approached the victim and demanded her property, and he directed his juvenile accomplice to take the victim’s purse. He used the gun in a threatening manner by pointing it in the victim’s side, scaring her into complying with his demands. Nothing in the nature of the offense compels the conclusion that imposition of the section 12022.53 sentence enhancement is cruel or unusual.
Nor are we persuaded by defendant’s argument that his personal circumstances - his youth, lack of criminal history, sincere contrition, and solid connections with work, faith and family - requires a conclusion that the imposition of the section 12022.53 sentence enhancement was grossly disproportionate. Four months before the robbery, on February 27, 2005, defendant was granted deferred entry of judgment and placed under probation supervision after he admitted committing an act that violated Health & Safety Code section 11352, subdivision (a) (transporting or selling a controlled substance). His overall compliance with the terms of probation was unsatisfactory: he did not drug test as ordered and he failed to maintain contact with probation. He was still under probation supervision when he committed this robbery. At the time of the robbery, defendant was 18 years of age, gainfully employed, he had no mental health issues, and he reported to the probation department that he was not drinking alcohol and he had stopped smoking marijuana. Although positive in nature, these factors, evidencing a mature, young adult, did not dissuade defendant from committing an armed robbery in broad daylight. Although he wrote a letter to the court apologizing for his misconduct, his actions at the time of the offense reflect only his self-interest.
Because the circumstances existing at the time of the offense and defendant’s individual culpability posed a significant degree of danger to society, the imposition of the section 12022.53 sentence enhancement was neither cruel nor unusual punishment. “The judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citation]. This is not such a case.” (Martinez, supra, 76 Cal.App.4th at p. 494.)
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P. J., Siggins, J.