Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08WF0349, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.
Tony Rackauckas, District Attorney, and Daphne Sykes Scott, Deputy District Attorney, for Plaintiff and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Defendant Ronald William Foster pleaded guilty to one count of second degree robbery and admitted he personally used a firearm in the commission of that offense within the meaning of Penal Code sections 12022.53, subdivision (b), and 12022.5, subdivision (a). (All further statutory references are to the Penal Code.) Consistent with the proposed disposition of the case set forth in defendant’s guilty plea agreement form which was apparently negotiated by the trial court, and over the district attorney’s objections, the trial court (1) sentenced defendant to the middle prison term of three years for the robbery offense, (2) struck both firearm enhancements on the ground the court had the discretion to do so under section 1385, and (3) determined the imposition of the 10-year firearm enhancement term under section 12022.53, subdivision (b), on defendant would constitute cruel or unusual punishment in violation of article I, section 17 of the California Constitution.
We reverse. Section 12022.53, subdivision (h), and section 12022.5, subdivision (c), expressly prohibit the trial court from exercising discretion under section 1385 to strike the firearm enhancement under sections 12022.53, subdivision (b), and 12022.5, subdivision (a), respectively. Furthermore, the imposition of the 10-year firearm enhancement term under section 12022.53, subdivision (b), did not constitute cruel or unusual punishment as applied to defendant under the circumstances of this case. The trial court therefore erred by striking the firearm enhancements.
This summary is based on facts contained in the preplea report that was prepared by the probation department.
During the evening of February 11, 2008, 51-year-old defendant, a chronic drinker, decided to rob the liquor store that he frequented because he had run out of money to buy alcohol. Defendant drove to the liquor store, put a loaded handgun into the waistband of his pants, and walked toward the store’s front door. After waiting for a customer he saw inside the store to leave, defendant entered the store, walked up to the cashier he knew worked there at night, lifted the front of his shirt to expose the handgun in his waistband, and told her to give him money. Defendant apologized to the cashier as she gathered $190 or $200 and gave it to him. Defendant left the store through the front door and drove home to the boat where he lived.
Defendant turned himself in to authorities, cooperated in the investigation of the robbery, and assisted police officers in their investigation. He expressed “significant feelings of shame and regret” and explained he had been “depressed, desperate, sick, and unable to see any possible solutions to his problems.” The investigating detective stated that but for the involvement of the loaded firearm, defendant would have been considered a candidate for probation because of “his lack of [a] prior record and his apparent need for treatment.”
BACKGROUND
Defendant was charged in an information with second degree robbery in violation of sections 211 and 212.5. The information contained two firearm enhancements, alleging that in the commission of the second degree robbery, defendant personally used a firearm within the meaning of sections 12022.5, subdivision (a), and 12022.53, subdivision (b).
Pursuant to the trial court’s order, the probation department prepared a preplea probation and sentencing report. Defendant filed a motion under People v. Dillon (1983) 34 Cal.3d 441 (Dillon), requesting the court to conclude that the imposition of the 10-year mandatory firearm enhancement term under section 12022.53, subdivision (b), would constitute cruel or unusual punishment as applied to defendant.
Defendant pleaded guilty to the charged offense and admitted the enhancement allegations. The guilty plea form stated defendant understood the court will “[s]entence [him] to state prison for a period of 3 years and 0 months, credit for time served of 561 days actual custody and 48 days of good time/work time for a total credit of 609 days.”
The trial court sentenced defendant to the midterm of three years for the robbery offense. The court’s minute order from the sentencing hearing shows the court purported to exercise its discretion under section 1385 to strike both firearm enhancements. As the reasons for striking that enhancement, the minute order cites defendant’s lack of a violent or aggressive nature as explained in a psychologist’s report, his lack of a prior criminal record, and the victim’s acquiescence with such a disposition. The record shows that the trial court also struck the section 12022.53, subdivision (b), 10-year enhancement term under Dillon, supra, 34 Cal.3d 441, thereby necessarily finding the imposition of that enhancement cruel or unusual punishment in violation of the California Constitution.
DISCUSSION
I.
The Trial Court Did Not Have Discretion under Section 1385 to Strike the Firearm Enhancements.
Section 12022.53, subdivision (b), provides: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), 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.” (Italics added.) The commission of the offense of robbery in violation of section 211 is listed in section 12022.53, subdivision (a)(4).
In sentencing defendant, the trial court stated it exercised its discretion under section 1385 to strike the section 12022.53, subdivision (b), enhancement. Section 1385 permits a judge, on his or her own motion, and in the furtherance of justice, to order an action to be dismissed. Section 12022.53, subdivision (h), however, expressly proscribes the application of discretion under section 1385 to strike a firearm enhancement promulgated under section 12022.53. Section 12022.53, subdivision (h), provides: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” (See People v. Felix (2003) 108 Cal.App.4th 994, 999 (Felix) [firearm enhancement under section 12022.53 may not be stricken pursuant to section 1385].) Furthermore, section 12022.53, subdivision (g), provides “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, ” and subdivision (j) of section 12022.53 provides that “[w]hen an enhancement specified in this section has been admitted... the court shall impose punishment for that enhancement pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another enhancement provides for a greater penalty or a longer term of imprisonment.”
The trial court also struck the section 12022.5, subdivision (a), firearm enhancement. Like section 12022.53, subdivision (h), section 12022.5, subdivision (c), provides: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”
The trial court therefore erred by striking the section 12022.53, subdivision (b), enhancement and the section 12022.5, subdivision (a), enhancement pursuant to section 1385.
II.
The Imposition of The 10-year Mandatory Enhancement Term under Section 12022.53, Subdivision (b), Did Not Constitute Cruel or Unusual Punishment as Applied to Defendant.
Section 12022.53 was enacted for the purpose of imposing “‘“substantially longer prison sentences”’” on felons “‘“who use firearms in the commission of their crimes, in order to protect our citizens and to deter violent crime.”’” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1129.) Although it is the Legislature’s role to define crimes and proscribe penalties for them, all statutory penalties are subject to the constitutional prohibition against cruel or unusual punishments contained in article I, section 17 of the California Constitution. (Dillon, supra, 34 Cal.3d at p. 450.) “[A] punishment is impermissible if it is grossly disproportionate to the offense as defined or as committed, and/or to the individual culpability of the offender.” (Id. at p. 450; see In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch) [punishment is cruel or unusual in violation of the California Constitution 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”].) Whether a punishment is cruel or unusual in violation of the California Constitution under the legal principles set forth in Lynch, supra, 8 Cal.3d 410, and Dillon, supra, 34 Cal.3d at page 478, “presents a question of law subject to independent review; it is ‘not a discretionary decision to which the appellate court must defer.’ [Citation.]” (Felix, supra, 108 Cal.App.4th at p. 1000.)
The reduction of a sentence based on the determination it is cruel or unusual under the California Constitution “‘is a solemn power to be exercised sparingly only when, as a matter of law, the Constitution forbids what the sentencing law compels.’ [Citation.]” (Felix, supra, 108 Cal.App.4th at p. 1000.) Furthermore, such a reduction “‘“must be viewed as representing an exception rather than a general rule”’” and “‘[i]n such cases the punishment is reduced because the Constitution compels reduction, not because a trial court in its discretion believes the punishment too severe.’ [Citation.]” (Ibid.)
In Lynch, supra, 8 Cal.3d 410, the California Supreme Court identified three “techniques” a court must use to determine whether a punishment is disproportionate to the crime: (1) the court considers the nature of the offense and the offender “with particular regard to the degree of danger both present to society”; (2) the court compares the punishment imposed with the punishments for more serious crimes in the same jurisdiction; and (3) the court compares the punishment imposed with punishments for the same crimes in different jurisdictions. (Id. at pp. 425, 427; see Dillon, supra, 34 Cal.3d at pp. 479-482.) A punishment need not be disproportionate under all three techniques to violate the California Constitution. (Dillon, supra, 34 Cal.3d at p. 487, fn. 38.)
Here, the trial court determined the imposition of the mandatory 10-year firearm enhancement term under section 12022.53, subdivision (b), constituted cruel or unusual punishment as it applied to defendant in light of the circumstances of the offense and the defendant’s individual culpability. The trial court did not conclude that section 12022.53, subdivision (b), imposes a facially unconstitutional punishment and defendant does not contend otherwise.
In a footnote in the respondent’s brief, defendant mentions that his counsel had presented evidence to the trial court that other states, namely, Pennsylvania, Arizona and Nevada, “treated robberies with the use of guns less harshly than did California.” Defendant does not otherwise argue in this appeal that section 12022.53, subdivision (b), imposes a disproportionate punishment for armed robbery as compared to the punishment imposed in other jurisdictions for the same offense, or as compared to the punishments imposed in California for offenses considered more serious than the offense charged here, within the meaning of Lynch, supra, 8 Cal.3d 410.
“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.” (Felix, supra, 108 Cal.App.4th at p. 1000.) We conclude the section 12022.53, subdivision (b), enhancement was not cruel or unusual punishment in light of the nature of the charged offense. Here, defendant admittedly drove to a liquor store with the intent to rob the female cashier he knew worked at night. He carried in his waistband a loaded handgun. (Section 12022.53, subdivision (b), does not require that the firearm used be loaded for the 10-year enhancement to apply.) He displayed the handgun to the cashier, frightened her, and demanded she pay him money. His motive was for his personal financial gain-he had run out of money to purchase alcohol. The cashier turned over the store’s money to him and he fled to the boat where he lived.
In Felix, supra, 108 Cal.App.4th at page 1000, the defendant, who had threatened the victim with a firearm to commit a carjacking, unsuccessfully argued the imposition of the section 12022.53 subdivision (b), 10-year enhancement term was cruel or unusual. The appellate court stated: “Although [the defendant]’s crime was not as violent as some armed carjackings, section 12022.53, subdivision (b) does not require extreme violence. This statutory provision punishes the perpetrator of one of the specified crimes more severely for introducing a firearm into a situation which, by the nature of the crime, is already dangerous and increases the chances of violence and bodily injury. We conclude nothing in the nature of the offense or how it was committed allows striking the mandatory enhancement as cruel or unusual.” (Felix, supra, 108 Cal.App.4th at p. 1001, fn. omitted.)
Nor are we persuaded the 10-year enhancement term under section 12022.53, subdivision (b), is grossly disproportionate to defendant’s individual culpability based on his personal characteristics. “In analyzing the nature of the offender, a court should consider his ‘age, prior criminality, personal characteristics, and state of mind.’” (Felix, supra, 108 Cal.App.4th at p. 1000.) Here, defendant was 51 years old at the time of the offense. He therefore was not “comparable to the unusually immature 17-year-old defendant in Dillon[, supra, 34 Cal.3d 441, ] who panicked and shot and killed a man guarding a field from which the defendant and his companions had planned to steal marijuana.” (Felix, supra, 108 Cal.App.4th at p. 1001, fn. omitted.) Although defendant is a chronic drinker and was under the influence of alcohol at the time of the offense, the record shows he planned the robbery and, in so doing, secured the handgun to use in its commission. He drove to the liquor store and waited outside until a customer left the store before he entered. After approaching the cashier, defendant pulled up his shirt to show the cashier the handgun in his waistband. The record thus shows his “conduct was premeditated, not spontaneous.” (Felix, supra, 108 Cal.App.4th at p. 1001.)
We are not unmindful of the circumstances in the record showing this robbery was committed by a man who generally lived an otherwise productive, crime-free life but developed a serious drinking problem. (But see Felix, supra, 108 Cal.App.4th at p. 1001 [“The lack of a criminal record is not determinative in a cruel or unusual punishment analysis”].) In the preplea probation report, the probation officer noted: “It is sad that the defendant, who had been a hard-working, law-abiding citizen for over fifty years, would resort to such a crime out of desperation and impaired judgment.” We note that defendant apologized to the cashier during the robbery, assisted in law enforcement’s investigation of the robbery, and expressed great remorse for his crime. Even the victim stated that, in her opinion, the imposition of the 10-year enhancement term is simply “too much time.”
Notwithstanding these sad circumstances surrounding defendant’s conduct, the fact remains he personally used a loaded firearm to commit a robbery. We cannot say the California Constitution compels the reduction of this sentence.
III.
Defendant Shall Be Permitted to Withdraw His Guilty Plea
The record shows defendant pleaded guilty to the robbery offense and admitted the firearm enhancements based on the trial court’s promise that the court would impose a total prison term of three years. Defendant’s guilty plea form contained a proposed disposition which included the following statement that was initialed by defendant: “I understand the court will:... [¶] (a) Sentence me to state prison for a period of 3 years and 0 months, credit for time served of 561 days actual custody and 48 days of good time/work time for a total credit 609 days. I waive and give up my right to make application for probation and request immediate sentence.”
As discussed ante, the trial court, in apparently negotiating a plea bargain with defendant over the district attorney’s objections, was not authorized to strike either firearm enhancement under section 1385, or the firearm enhancement under section 12022.53, subdivision (b), on the ground its imposition would constitute cruel or unusual punishment. (People v. Renfro (2004) 125 Cal.App.4th 223, 230 (Renfro) [“The prosecution and criminal court... do not have unfettered discretion in determining the subject matter of a plea bargain” and “[t]he court must exercise its sentencing authority in accordance with the Penal Code, public policy, and decisional law”].) Having admitted the robbery offense and the firearm enhancements, defendant faced a statutory minimum prison term of 12 years. In accordance with the plea agreement’s proposed disposition, the trial court sentenced defendant to a total of three years in prison.
Having reversed the judgment of conviction based on the trial court’s imposition of an unauthorized sentence, we next address the effect of defendant’s guilty plea should the district attorney choose to pursue the prosecution against defendant.
In Renfro, supra, 125 Cal.App.4th at page 233, the appellate court stated: “The remedy for violation of a plea agreement depends on the circumstances of each case. [Citation.] The typical remedy is to allow the defendant to withdraw his or her guilty plea and go to trial on the original charges. [Citation.] Under certain circumstances, specific performance of the agreement is warranted, but it is not a favored remedy for violation of a plea bargain. [Citation.] And, specific enforcement of a plea bargain is not a remedy required by the federal Constitution. [Citation.]” (See People v. Lopez (1993) 21 Cal.App.4th 225, 231 [holding the defendant should be allowed to withdraw his guilty plea after appellate court concluded the trial court erroneously struck the firearm enhancement].) In Renfro, supra, 125 Cal.App.4th at page 233, the appellate court held the defendant’s plea agreement “went beyond the sentencing court’s authority.” The court stated specific performance of the plea agreement would undermine the applicable law and thus also “undermine public policy, public safety and the administration of justice by our courts.” (Ibid.)
Here, specific performance of the court’s unauthorized sentence would undermine the statutory prohibitions discussed ante against striking the firearm enhancements under sections 12022.53, subdivision (b), and 12022.5, subdivision (a), and also the public policy underlying such legislative mandates. (See, e.g., People v. Gonzalez (2008) 43 Cal.4th 1118, 1129 [“[S]ection 12022.53 was enacted to ensure that defendants who use a gun remain in prison for the longest time possible”].)
Therefore, the appropriate remedy here is to allow defendant to withdraw his guilty plea and proceed to trial on the robbery offense and the firearm enhancements as alleged in the original information.
DISPOSITION
The judgment is reversed.
WE CONCUR: MOORE, ACTING P., J., IKOLA, J.