People v. Centeno
People v. Centeno
Opinion of the Court
*395*574Emmanuel Jose Centeno pled guilty to assault with a semiautomatic firearm ( Pen. Code,
The trial court sentenced Centeno to prison for three years on count 1 and stayed his sentence for count 2. Under section 1385, the court struck the gun enhancements for purposes of sentencing. In addition, for count 3, the court imposed credit for time served.
*575Centeno appeals, contending the trial court abused its discretion by failing to grant him probation. In the alternative, Centeno maintains the court erroneously failed to recognize its discretion to strike count 2 (robbery). We affirm.
FACTUAL BACKGROUND
Because Centeno pled guilty, both parties rely on the probation report for the facts of Centeno's underlying crimes. Based on their agreement as to the facts and as a matter of convenience, we adopt the facts as set forth in the respondent's brief.
On June 29, 2017, at approximately 3:00 a.m., Centeno and another male entered a marijuana dispensary and Centeno, holding a gun, announced a robbery. An employee of the dispensary was placed in a room. The employee retrieved a gun left in the room by a security guard and returned to the "bud room." Six suspects were there, and the employee started shooting. Centeno was shot and fell to the floor. Another suspect helped Centeno leave the dispensary. The employee identified Centeno as the robber with the gun. Centeno was transported to a hospital for treatment of two gunshot wounds. Initially, Centeno lied and said he had been in an argument with unknown males when he was shot but eventually admitted he was shot at a marijuana dispensary on Third Avenue. Centeno said he wished he had thought things through before he committed the robbery. The police spoke to Centeno's cohort in the hospital parking lot and searched his car. Several packages of concentrated cannabis samples, "wax," and jars of marijuana were found in the car. The cohort told the officers that Centeno was handing him the packages when he heard gunfire and saw Centeno fall to the floor.
DISCUSSION
I
THE COURT DID NOT HAVE DISCRETION TO AWARD PROBATION UNDER THE UNIQUE FACTS OF THE INSTANT ACTION
A. Centeno's Contentions
Centeno asserts that the trial court abused its discretion when it failed to grant him probation. To this end, he argues that amendments to sections 12022.53 *396and 1385 allowed the trial court to strike the firearm enhancement as well as grant him probation despite the clear language of section 1203.06. In the alternative, he contends the trial court could have dismissed the *576robbery conviction to eliminate any restrictions in section 1203.06 that would have prohibited the court from granting probation. We reject these contentions.
B. Background
Centeno pled guilty to assault with a semiautomatic firearm, robbery, and possession of marijuana. He also admitted personal use of a firearm in the commission of counts 1 and 2. The court continued Centeno's initial sentencing hearing to allow the parties to research whether the court had discretion to grant Centeno probation.
At the sentencing hearing on April 4, 2018, the trial court indicated that it would like to grant probation in this case but did not have the authority to do so. The court recognized that it had the discretion to strike the firearm enhancements under section 12022.5 for sentencing, but section 1203.06, subdivision (a), prohibited a grant of probation where a defendant used a firearm in the commission of a robbery. The court also recognized that by amending sections 12022.53 and 12022.5 to allow a trial court to strike the firearm enhancements for the purpose of sentencing, the Legislature stated that imposition of the additional and consecutive terms under the weapons enhancements in those sections was discretionary; however, the Legislature did not similarly amend section 1203.06, which still prohibits granting probation when a defendant uses a firearm during the commission of certain crimes. The court pointed out that the recent amendments to the weapon use enhancement statutes addressed the imposition of lengthy additional sentences for using a firearm and did not provide for granting probation. The *577court concluded that although it would like to allow Centeno to attend the Delancey Street probation program, section 1203.06 and People v. Tanner (1979)
C. Analysis
Although Centeno points us toward section 12022.53 and Senate Bill No. 620, which amended that section, we believe the prudent junction to begin our analysis is section 1203.06. The trial court believed section 1203.06 prohibited him from granting probation in this case. Centeno argues the trial court was wrong. It was not.
We apply settled standards for construing a statute: " 'Our fundamental task is to determine the Legislature's intent and give effect to the law's purpose. [Citation.] We begin by examining the statute's words " 'because they generally provide the most reliable indicator of legislative intent.' [Citation.] If the statutory language is clear and unambiguous our inquiry ends." ' [Citation.] In that case, the plain meaning of the statute is controlling, and ' "resort to extrinsic sources to determine the Legislature's intent is unnecessary." ' " ( Lopez v. Sony Electronics, Inc. (2018)
Section 1203.06, subdivision (a)(1) provides:
"Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within this section be stricken pursuant to Section 1385 for, any of the following persons:
"(1) Any person who personally used a firearm during the commission or attempted commission of any of the following crimes:"
One of the enumerated crimes is robbery. (§ 1203.06, subd. (a)(1)(B).) The statute further explains that the phrase " 'used a firearm' means to display a firearm in a menacing manner, to intentionally fire it, to intentionally strike or hit a human being with it, or to use it in any manner that qualifies under Section 12022.5." (§ 1203.06, subd. (b)(2).)
Here, the subject statute's language is clear. If a defendant personally used a firearm during the commission of a robbery, he or she is ineligible for probation. Moreover, the statute clarifies that "[t]he existence of any fact that *578would make a person ineligible for probation ... shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the trier of fact." (§ 1203.06, subd. (b)(1).) In the instant action, the felony complaint alleged, among other things, that Centeno used a firearm in the commission of a robbery. And Centeno admitted at his change of plea hearing that he committed the crime of robbery and personally used a handgun in doing so. Accordingly, under the plain language of section 1203.06, Centeno is ineligible for probation.
Our conclusion is buttressed by Tanner , supra ,
Likewise, here, we are not persuaded by Centeno's claim that section 12022.53, as modified by Senate Bill No. 620, somehow allows the trial court to ignore the clear mandate of section 1203.06 so it can grant probation in this matter. Section 12022.53, subdivision (h) provides, in part: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." Thus, subdivision (h) grants a trial court discretion to strike a firearm enhancement so that the court does not have to increase a defendant's sentence under section 12022.53, subdivisions (b), (c), or (d). However, there is nothing in section 12022.53 that allows the court to disregard the restrictions on granting probation found in section 1203.06.
Contrary to Centeno's argument, Romero , supra ,
Aubrey , supra ,
"The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. ( People v. Marquez (1983)
" ' "[P]robation" means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.' (§ 1203, subd. (a).) All defendants are eligible for probation, in the discretion of the sentencing *580court ( People v. Phillips (1977)
Unlike the statute in Aubrey that included an "interests of justice" exception to allow a court to grant probation, section 1203.06 does not contain any such allowance. Instead, it expressly prohibits the court from granting probation to a defendant who commits robbery while using a firearm. (§ 1203.06, subd. (a)(1)(B).) As such, the instant action is distinguishable from Aubrey.
Finally, we are not persuaded by Centeno's alternative argument that the trial court had discretion to strike the robbery conviction, so it could grant probation. Centeno claims the trial court could have struck the robbery conviction under section 1385 as explained in People v. Orabuena (2004)
In Orabuena , the defendant pled guilty to three counts: possessing and being under the influence of methamphetamine and driving with a suspended license. ( Orabuena , supra , 116 Cal.App.4th at p. 89,
Centeno urges us to follow Orabuena , supra ,
DISPOSITION
The judgment is affirmed.
WE CONCUR:
IRION, J.
GUERRERO, J.
Statutory references are to the Penal Code unless otherwise specified.
The probation report indicated that under section 1203.06, subdivision (a)(1), Centeno was "absolutely ineligible for probation."
Section 12022.5, subdivision (c) operates like section 12022.53, subdivision (h). We mention this because there is some confusion in the record regarding whether the firearm enhancements were alleged under section 12022.5 or section 12022.53. Nevertheless, Centeno uses the later statute to challenge the court's failure to grant probation here. Regardless of which statute is at issue (section 12022.5 or section 12022.53 ), our analysis would remain the same. Neither statute impacts section 1203.06.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.