People v. Centeno

251 Cal. Rptr. 3d 394, 38 Cal. App. 5th 572
California Court of Appeal, 5th District·Decided August 8, 2019·No. D073977·Published·Cited by 1 cases

Opinion

HUFFMAN, Acting P. J.

*395*574Emmanuel Jose Centeno pled guilty to assault with a semiautomatic firearm ( Pen. Code,1 § 245, subd. (b) ; count 1), robbery (§ 211; count 2), and possession of more than 28.5 grams of marijuana ( Health & Saf. Code, § 11357, subd. (b)(2) ; count 3). Centeno also admitted allegations as to counts 1 and 2 that he personally used a firearm in committing the offenses within the meaning of Penal Code section 12022.5, subdivision (a).

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.2 Centeno filed a motion to dismiss the gun enhancements and to grant probation. He asserted in the motion that the court had authority to strike a personal gun use enhancement under sections 12022.53, subdivision (h) and 1385. In support of his position, Centeno relied on People v. Woods (2018) 19 Cal.App.5th 1080, 228 Cal.Rptr.3d 318, where the court determined that the amendments to sections 12022.53 and 1385 applied retroactively and remanded the case to allow the trial court to exercise its discretion to determine whether to strike the section 12022.53, subdivision (d), enhancement and its mandatory 25-years-to-life term. ( Woods , at pp. 1090-1091, 228 Cal.Rptr.3d 318.) Centeno also argued the instant matter was analogous to People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 ( Romero ), in which our high court concluded a trial court has discretion to dismiss a prior strike conviction allegation under section 667. Finally, Centeno argued that the legislative intent set forth in section 12022.53, subdivision (h) should be applied to the prohibition on granting probation in section 1203.06.

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People v. Centeno, 251 Cal. Rptr. 3d 394, 38 Cal. App. 5th 572 (Cal. Ct. App. 2019).

251 Cal. Rptr. 3d 394 (People v. Centeno) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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