Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA053272, Lauren Weis Birnstein, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
A jury convicted Charles Herrmann of second degree robbery and found true the special allegation he had personally used a firearm in committing the offense pursuant to Penal Code section 12022.53, subdivision (b). Herrmann was sentenced to an aggregate state prison term of 12 years, which included the 10-year enhancement of section 12022.53, subdivision (b). On appeal Herrmann contends the 10-year enhancement constitutes cruel and/or unusual punishment as applied to him. We affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Pharmacist Ellis Herz was filling prescriptions in his drugstore on August 18, 2006, when Herrmann approached the counter and ordered Herz at gunpoint to put some Vicodin inside a backpack. While Herz was retrieving the Vicodin, Herrmann rested his gun on the counter. Herz saw the gun, grabbed it and fired a shot at Herrmann’s chest. Herrmann was wearing a bullet-proof vest at the time. He began walking towards Herz, causing him to back away. Herrmann dropped the backpack and continued to advance on Herz, who fired two more shots. Herrmann fell to the ground, saying he had been shot.
Herz told his employees to telephone police. An elderly man who had been in the pharmacy when Herrmann arrived was now lying on the sidewalk. Herz went outside to offer the man some assistance. Herz looked up and saw Herrmann stagger out of the pharmacy, holding his stomach. Hearing sirens in the distance, Herz ran up to Herrmann, pointed the gun and demanded that Herrmann lie on the ground until police arrived. After Herrmann complied, Herz returned to help the elderly man. In the meantime, Herrmann climbed into a car driven by his brother and fled. The brother drove Herrmann to the hospital, where Herrmann was eventually arrested. Police recovered the bullet proof vest and the gun containing live ammunition.
Herrmann’s brother, codefendant Paul Herrmann, was acquitted of robbery and convicted of being an accessory; he is not a party to this appeal.
Herrmann testified in his own defense he attended a funeral on August 18, 2006. He professed to have no memory of his actions after leaving the funeral and before waking up in the hospital. Herrmann admitted he was the person whom witnesses identified as having demanded Vicodin from Herz at gunpoint, but he claimed not to remember either the robbery or the shooting. According to Herrmann, he experienced a “blackout” upon leaving the funeral triggered by his years of stress and dependence on Vicodin; he could not recall being inside the drugstore at all.
Herrmann testified that over the past five years he had suffered various personal hardships, including the deaths of his six-year-old daughter and his mother, debilitating neck injuries, job loss and a driving under the influence conviction. He had been prescribed antidepressants and anti-anxiety medication as well as Vicodin for the resulting stress, depression and physical pain. From 2002 to 2006, Herrman had been taking high doses of these medications daily, including the day of the robbery. He had become addicted to Vicodin, ingesting as many as 12 tablets a day.
Several defense witnesses testified Herrmann was honest, nonviolent and law-abiding.
At sentencing, the trial court indicated it had read and considered the probation officer’s report, a defense psychiatric report, and numerous letters written on Herrmann’s behalf. Herrmann’s counsel read into the record a “collective letter” signed by 32 of Herrmann’s friends or family urging leniency. The court also heard a statement from the victim Herz.
Following argument by counsel, the trial court imposed an aggregate 12-year state prison term, consisting of the two-year lower term for robbery and the 10-year enhancement for personally using a firearm.
DISCUSSION
Herrmann argues imposition of the section 12022.53, subdivision (b) firearm-use enhancement is cruel and unusual punishment, violating the state and federal Constitutions. He argues imposition of the 10 years enhancement is “grossly and shockingly disproportionate” as applied to him under the facts of this case. The People contend Herrmann has forfeited this claim. We agree with the People the claim has been forfeited, and in any event we find it to be without merit.
Herrmann does not contend that gun use enhancements of section 12022.53 constitute cruel and unusual punishment on the face of the statute, an argument that has been uniformly rejected by the Courts of Appeal. (E.g., People v. Gonzales (2001) 87 Cal.App.4th 1, 16-19; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212-1216; People v. Martinez (1999) 76 Cal.App.4th 489, 494-495.)
The California Supreme Court has repeatedly held constitutional objections, like other objections, must be raised in the trial court in order to preserve them for appeal. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 250 [forfeiture of First, Eighth and Fourteenth Amendment rights]; People v. Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10 [forfeiture of rights under Fifth, Eighth and Fourteenth Amendments, respectively, self-incrimination, cruel and unusual punishment, and due process claims]; see also People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8 [forfeiture of claim of cruel and unusual punishment].)
Even if this claim had not been forfeited, we would reject it. “[I]n our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments....” (In re Lynch (1972) 8 Cal.3d 410, 414 (Lynch).) “The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible.” (Id. at p. 423.) “Reviewing courts... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.” (Solem v. Helm (1983) 463 U.S. 277, 290 [77 L.Ed.2d 637, 103 S.Ct. 3001] see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1213-1214 [rejecting cruel and unusual punishment challenge to § 12022.53, subd. (d)]; see also Lynch, supra, 8 Cal.3d at p. 414.) “Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.]” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
“Nevertheless, a sentence may violate article I, section 17, of the California Constitution if it is so disproportionate to the crime for which it is imposed that it ‘shocks the conscience and offends fundamental notions of human dignity.’ [Citation.]” (People v. Ingram (1995) 40 Cal.App.4th 1397, 1413, overruled on other grounds in People v. Dotson (1997) 16 Cal.4th 547.) Similarly, under the federal Constitution punishment may be considered unconstitutionally excessive and in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment if it is “grossly out of proportion to the severity of [his] crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173 [96 S.Ct. 2909, 49 L.Ed.2d 859]; Harmelin v. Michigan (1991) 501 U.S. 957, 1001[111 S.Ct. 2680, 115 L.Ed.2d 836].)
Lynch articulates the relevant factors in analyzing whether a punishment is cruel or unusual under the California Constitution. It requires consideration of the nature of the offender and the offense (Lynch, supra, 8 Cal.3d at p. 425), comparison of the punishment with the penalty for more serious crimes in the same jurisdiction (id. at p. 426), and comparison of the punishment to the penalty for the same offense in different jurisdictions (id. at p. 427).
We do not find Herrmann’s challenge to section 12022.53, subdivision (b) to identify one of those rare cases in which the Legislature has overstepped its bounds and imposed a penalty that is cruel and unusual. Herrmann makes no attempt to compare the 10-year enhancement with the penalty for more serious crimes in California or with the penalty for the same offense in other jurisdictions to show constitutionally impermissible disproportionality. His entire argument hinges on the nature of the offender and the nature of the offense.
Herrmann has a colorable point with respect to the nature of the offender, where the focus is on the defendant’s “individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (People v. Dillon (1983) 34 Cal.3d 441, 479.) The trial court apparently found some or all of these factors sufficiently present to require leniency in its sentencing choices. Specifically, the court expressly disbelieved Herrmann’s claim of memory loss, but did find Herrmann’s history of psychological and physical problems, prescription drug addiction, and daughter’s death justified imposing the lower term rather than the middle term sentence.
However, we are not persuaded the 10-year enhancement is disproportionate to the serious nature of Herrmann’s offense, “its motive, the way it was committed, the extent of [Herrmann’s] involvement, and the consequences of his acts.” (Dillon, supra, 34 Cal.3d at p. 479.) Acknowledging armed robbery is an inherently dangerous crime, Herrmann nonetheless attempts to minimize his firearm use by insisting he was not responsible for the ensuing violence, and instead blaming Herz’s “reckless conduct” of grabbing the gun and repeatedly firing it. Herrmann maintains “the risk of danger to others caused by [his own] conduct was relatively minor for a robbery.”
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.) It is true Herz and not Herrmann fired the gun, and Herrmann and not Herz was wounded by the gun shots. However, the plain fact is had Herrmann not carried the loaded gun into the drugstore, the shooting would never have occurred. In displaying the gun during the robbery, Herrmann created the substantial likelihood that he, Herz or one of the drugstore customers would be injured or killed. Indeed, as noted by the trial court, Herrmann anticipated his crime would lead to gun fire and prepared himself accordingly, by donning a bullet proof vest before entering the drug store. That Herrmann did not actually fire the gun before Herz took it does not lessen the serious threat of harm Herrmann’s conduct posed to others throughout the encounter. Herrmann has not overcome the “considerable burden” in challenging his penalty as cruel or unusual under the California Constitution. (People v. Wingo (1975) 14 Cal.3d 169, 174.)
Herrmann’s federal claim is equally unavailing. While a punishment is deemed excessive under the Eighth Amendment if it is “grossly disproportionate,” that requirement does not require strict proportionality between the crime and sentence. (Harmelin v. Michigan, supra, 501 U.S. at p. 1001.) We see no basis for invalidating the imposition of the section 12022.53, subdivision (b) enhancement under the Eighth Amendment.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.