Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR-140408
Dondero, J.
Defendant Tyler James Hart pleaded no contest to two felony counts alleged in the information. Each alleged certain enhancements. Count One was for violation of Penal Code section 211/213, subdivisions (a)(2) and (b) and Penal Code section 664 (attempted robbery in the second degree). Also alleged in Count One were two enhancements: a violation of Penal Code section 12022.53, subdivision (b) (personal use of a firearm during the commission a felony), and a violation of Penal Code section 12022.5, subdivision (a) (use of a firearm). Count Two alleged a violation of Penal Code section 459 (commercial burglary) and one enhancement: a violation of Penal Code section 12022.5, subdivision (a) (use of a firearm). His attorney has filed a brief raising no issues and asks this court to conduct an independent review of the record to identify any issues that could result in reversal or modification of the judgment if resolved in favor of the defendant. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel declares she has notified the defendant that he could file a supplemental brief raising any issue he wishes to call to this court’s attention. No supplemental brief has been received.
Upon independent review of the record, we conclude no arguable issues are presented for review and affirm.
I. FACTS
On April 5, 2008, at approximately 4:30 a.m., defendant entered the Kwikee Mart in Napa, California. One of his codefendants had previously entered the store to check out the situation and left, lingering in front of the store while defendant entered the Mart. A second codefendant remained in the get-away car as driver. The defendant, upon entering, pointed a shotgun at a female employee and then the manager, demanding the manager obtain the cash from the register. As the store manager removed the funds from the till and was in the process of handing them over to the defendant, he told defendant he recognized him. Upon hearing this, the defendant backed out of the store and got into the waiting car. He did not take any money from the Mart. Defendant was arrested on May 2, 2008. At the time of the incident, defendant was 19 years old.
The defendant entered his plea of no contest on November 12, 2008. The maximum exposure on the attempted robbery count was three years and the 10-year enhancement under Penal Code section 12022.53, subdivision (b). The trial court fully and properly advised the defendant of his rights under Boykin-Tahl.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
The defendant was sentenced on January 6, 2009. He expressed his remorse for the criminal conduct and apologized to the victim-manager who attended the sentencing hearing. He had no prior record with the exception of traffic infractions. Several friends and family members testified to his character and the need for long-term drug rehabilitation for defendant. The probation report recommended state prison.
At the sentencing, the prosecutor argued that the court could not grant probation under Penal Code section 12022.53, subdivision (g). The deputy district attorney also advised the court that it could not strike or dismiss the enhancement under Penal Code section 12022.53, subdivision (h). In each instance, the prosecutor cited relevant case law on the issue. The defense counsel disputed the claim by the prosecutor but did not cite case authority on the issues.
The sentencing court considered the mitigating evidence presented by the defense through its witnesses and reports. The court concluded the sentence involved here could not be suspended because of the language of Penal Code section 12022.53. The court did show some leniency by imposing the mitigated term of 16 months on Count One due to defendant’s lack of a criminal record. However, noting it lacked discretion, the court imposed an additional term of 10 years for the Penal Code section 12022.53, subdivision (b) enhancement. The trial court also imposed the low term of 16 months on Count Two and the low term of 3 years on the Penal Code section 12022.5 enhancement, staying the execution of the sentence relating to Count Two.
The defendant filed a timely notice of appeal.
II. ANALYSIS
By entering a plea of no contest, the defendant admitted the sufficiency of the evidence establishing his criminal conduct, and is not entitled to review any issue that goes to the question of guilt. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his plea. Therefore the only issues cognizable on appeal are issues relating to the denial of a motion to suppress or issues relating to matters arising after the plea was entered. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b)(4).)
Under our independent review of the record we find no meritorious issues that require further briefing on appeal. Defendant was properly advised of his Boykin-Tahl rights, including the acknowledgement that the plea was open and the court could impose the aggravated term on Count One, as well as the 10-year enhancement for admitting the Penal Code section 12022.53 allegation. He was competently represented by appointed counsel at all times. It was within the court’s discretion to deny probation, especially with the legislative dictates articulated in Penal Code section 12022.53, subdivision (g): “Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person found to come within the provisions of this section.” (See also Pen. Code, § 12022.53, subd. (h) [“[T]he court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”].)
The enhancement penalties called for in Penal Code section 12022.53 have had some judicial review based on constitutional standards. The so-called “10-20-life” law has been found to not violate either due process or equal protection. (People v. Perez (2001) 86 Cal.App.4th 675.) The application of Penal Code section 12022.53 in the context of an attempted robbery conviction (our case) has been found not to violate equal protection. (People v. Taylor (2001) 93 Cal.App.4th 318, 322.) Nor does this punishment enhancement violate the double jeopardy clause. (Plascencia v. Alameida (9th Cir. 2006) 467 F.3d 1190, 1204.) This Ninth Circuit decision also concluded that Penal Code section 12022.53 does not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. (Ibid.)
People v. Taylor, supra, 93 Cal.App.4th 318, 323–324, addressed the Eighth Amendment issue of cruel and unusual punishment regarding Penal Code section 12022.53, finding no violation of cruel and unusual punishment with the enhanced penalty for personal use of a firearm in the commission of certain felonies. Additionally, several courts have addressed the subject in the context of Penal Code section 12022.5, another enhancement for the use of a firearm in the commission of a felony (an additional punishment of 3, 4, or 10 years in prison). Imposing an additional 5 years under Penal Code section 12022.5 on a robbery sentence was not cruel and unusual punishment. (People v. Morgan (1973) 36 Cal.App.3d 444; see also People v. Lowe (1975) 45 Cal.App.3d 792.) Generally speaking, mandatory terms of imprisonment for committing particular felony offenses will not be found constitutionally infirm under the Eighth Amendment. “There can be no serious contention... that a sentence which is not otherwise cruel and unusual becomes so simply because it is ‘mandatory.’ [Citation.]” (Harmelin v. Michigan (1991) 501 U.S. 957, 995.) Regarding this issue of cruel and unusual punishment, the courts traditionally defer to the Legislature. Enhancements have been found valid so long as they are not grossly disproportional to the legislative objective in enacting the statute. (Ewing v. California (2003) 538 U.S. 11, 23.) The enhancements detailed in Penal Code section 12022.53 appear to be appropriate and proportionate to a legislative conclusion that firearms personally used in the commission or attempted commission of violent felonies, i.e., robberies, deserve significantly enhanced consequences. There is nothing developed in this record suggesting a violation of the Eighth Amendment.
III. CONCLUSION
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.