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Court of Appeal, Second District, Division 2, California.

The PEOPLE, Plaintiff and Appellant, v. Nicholas Deore McCLELLAN, Defendant and Respondent.

No. B144957.

Decided: December 18, 2001

Steve Cooley, District Attorney, Brentford J. Ferreira and Linda C. Puentes, Deputy District Attorneys, for Plaintiff and Appellant. Michael P. Judge, Public Defender, Diane Butko and Albert J. Menaster, Deputy Public Defenders, for Defendant and Respondent.

Respondent Nicholas Deore McClellan entered a plea of no contest to second degree robbery (Pen.Code, § 211) 1 and admitted the personal use of a firearm within the meaning of section 12022.53, subdivision (b), as alleged.   Following receipt of a diagnostic report, the trial court found that imposition of the 10-year mandatory sentence for firearm use under section 12022.53, subdivision (b) would be cruel and unusual punishment and, instead, imposed a three-year term for firearm use under section 12022.5, subdivision (a)(1), as also alleged, and a total sentence of five years in prison.   The People appeal from this order, contending that the 10-year term provided in section 12022.53, subdivision (b) is not cruel and unusual, that imposition of the enhancement term was mandated by that section, and that respondent did not admit the enhancement under section 12022.5, subdivision (a)(1).   This court asked the parties to address the issue of whether the People are estopped to complain of the sentence imposed pursuant to the plea bargain into which they entered without objection, where the plea bargain specified a sentence of up to 12 years in prison.   We granted the parties' request to submit supplemental briefing.   By supplemental brief, the People further contend that an unauthorized plea bargain and sentence may be raised on appeal even without objection;  that the People did object by refusing to consent to the plea bargain and sentence;  that the trial court violated the separation of powers doctrine;  and that estoppel does not lie.   We affirm the order of the trial court.


The record discloses that on September 28, 1999, respondent entered a Long Beach market, pointed a handgun at the head of the clerk, and demanded money.   When she told him she had no money, he ordered her to move over to the cash register, still pointing the gun at her head.   The clerk gave him cash and food stamps.   When respondent was arrested shortly thereafter, he was found in possession of a .32-caliber semi-automatic weapon which had one round in the chamber, as well as cash and food stamps.


Respondent was charged with second degree robbery with the allegation of personal use of a handgun in violation of sections 12022.53, subdivision (b), and 12022.5, subdivision (a)(1).   When the matter was called for trial, defense counsel stated, “Based on our in chambers discussions about sending Mr. McClellan for a 1203.03 evaluation, he's agreeable to that with the 12 year lid.”   The trial court stated, “Let me clarify for the record in this case the maximum the defendant faces is 15 years.   The People had made an offer of 12 years.   The court indicated to the defendant that, if he were to plead today, I would make that a 12 year lid.   And I would not make a determination until after receiving a 1203 study from the Department of Corrections.”   When asked by the court, respondent indicated that that was his understanding.

The trial court thereupon advised respondent of his rights and the consequences of the plea, stating, in pertinent part, that respondent could be sentenced to “anywhere from two years to 12 years,” “or if the court found very unusual circumstances, it could give [him] probation.”   Respondent waived his rights and acknowledged that he understood the consequences of his plea.   He entered a plea of no contest to second degree robbery.   The trial court asked, “To the special allegation under 12022.53(b), that is that you personally used a handgun, a firearm, within the meaning of Penal Code section 12022.53(b) do you admit or deny?”   Respondent stated, “Admit.”   With the agreement of the prosecutor, the court then suspended proceedings and referred respondent for a 90 day diagnostic study pursuant to section 1203.03.   The prosecutor did not object to any of the above.

When the matter was called for sentencing, the trial court indicated it had read and considered the original probation report as well as the section 1203.03 study.   The pre-plea probation report had recommended that respondent be referred for a diagnostic evaluation, observing that respondent had no prior record, a stable residence, no discernable drug or alcohol problem and no gang involvement, and that he reported gainful employment as a technician at a telecommunications business.   He had not yet graduated from high school, but had completed 11th grade at Options for Youth.

The section 1203.03 diagnostic report recommended that, if eligible, respondent be considered for a probationary grant.   It stated that respondent was working on or had obtained his GED, had signed up for classes at city college, and had been working as a technician installing electronic earthquake detection equipment for seven months prior to his arrest.   He had committed the offense because he was “hanging around the wrong crowd and trying to prove a point” in order to gain acceptance.   The psychological evaluation indicated that respondent had low average to average intelligence, limited abstract reasoning, limited insight and poor judgment.   The staff evaluation reported that he was a model inmate and that his technician's job was being held for him.   The report found that he was not criminally oriented, that he was remorseful, that his family was supportive, that his incarceration during the diagnostic evaluation resulted in a significant change in his personality, and that his need to be involved in church activities would prevent him from engaging in criminal conduct in the future.

At the sentencing hearing, respondent's mother addressed the court, stating that respondent had dyslexia and was immature, with a mental age younger than his chronological age, which was then 19.   When she and her four children moved to California, respondent was always involved and active in their church.   Since respondent had difficulties in a “mainstream” school, she placed him in the Options for Youth program where he could proceed at his own pace to complete school.   He became involved with the wrong individuals.   She noted, however, that none of her four children, including respondent, was a gang member.   She asked for leniency, stating that while she had raised respondent to accept responsibility for his actions, 10 or 12 years in prison was excessive and would not effect his rehabilitation.   Respondent's nine-year-old sister addressed the court and stated that her brother was a really nice young man and that prison would just “encourage him [to] make more poor choices” and he would not learn any lessons there.

Vernon Van, an educational consultant and congressional candidate who had worked with respondent, testified that although respondent was immature, he had had an excellent upbringing and was a giving and caring person.   Van requested the trial court to exercise leniency and impose a minimal punishment.   Respondent addressed the court and apologized to the people he had hurt, including his mother.

Respondent's counsel argued that section 12022.53, subdivision (b) was cruel and unusual as applied to respondent.   Counsel argued that while this was a serious offense, the sentence was excessive, given respondent's lack of any prior record and the circumstances of the incident, where the clerk was not injured.   Counsel pointed out that an assault which resulted in great bodily injury or an attempted murder with a deadly weapon would be punished with lesser sentences than 12 years.

The prosecutor stated that she and defense counsel had met with the prosecutor's supervisor, who considered the matter and decided against striking the section 12022.53, subdivision (b) allegation.   The prosecutor argued that the trial court lacked the discretion to strike the section 12022.53 allegation.   She further argued that the robbery was a dangerous crime because the firearm was loaded, the crime was sophisticated in that respondent had equipped himself with a loaded semi-automatic weapon and a bandana to cover his face, and that his youth and lack of a prior record did not establish that the punishment was cruel and unusual.

The trial court stated, “․ [T]his is one of those cases where I don't feel these mandatory minimums give the court enough discretion.   And perhaps that is because judges abuse it and go too far the other way.   This is a very serious offense.   It takes a lot for any individual to put a bandana over their face and to take a loaded semiautomatic handgun and place it in the face of another human being and demand their property or money.   And that's what happened here.  [¶] And I wish I had a quarter for each time that someone said, Well, it's because of the other guy.   The other guy made me do it․ And it's your choice of who you're hanging around with that makes you make these choices in life, this terrible offense.  [¶] But on the other hand I don't feel the mandatory minimum of 12 years is appropriate․ I'm going to make all the necessary findings that I can and find that it's cruel and unusual in this particular circumstance under these particular facts.”

The court further stated, “․ I also note that the People in their discretion have filed this section under both 12022.5(a)(1) and 12022.53(b), and the plea being taken to that special allegation. I'm going to use that discretion, if there is any, and sentence under only one.   And that's 12022.5(a)(1).   Again, if it's necessary to make a finding of cruel and unusual in its application to this individual, I so find.”

The trial court imposed the low term of two years for the robbery and the low term of three years under section 12022.5, subdivision (a)(1).


The People contend that the mandatory 10-year term under section 12022.53, subdivision (b) was not cruel and unusual, and that the sentence imposed was unauthorized because the enhancement under section 12022.53, subdivision (b) was mandatory and respondent did not admit an enhancement allegation under section 12022.5, subdivision (a)(1).   While the People certainly have the right to appeal in this case, we conclude that the People's contentions are unavailing.

The People charged respondent with robbery, alleging firearm use under both section 12022.5, subdivision (a)(1) and section 12022.53, subdivision (b).  Following a discussion in chambers, the trial court summarized the agreement, which specified a “12 year lid” with the determination as to sentence to be made after the trial court received a section 1203.03 diagnostic study.   When the trial court summarized the terms of the plea agreement, including the “12 year lid,” and when it advised respondent of the consequences of his plea, informing him that he could be sentenced to anywhere from two to twelve years in prison, the prosecution voiced no objection, made no correction, and did not in any way attempt to void or modify the agreement.   Under the terms of the plea agreement, a sentence of 12 years would encompass the 10-year section 12022.53, subdivision (b) enhancement and the two-year low term for robbery;  anything less than 12 years, which was a possibility clearly envisioned by the terms of the plea agreement, would necessarily entail sentencing under section 12022.5, subdivision (a)(1), rather than section 12022.53, subdivision (b).

The People now complain that imposition of sentence under section 12022.53, subdivision (b) was mandatory and that respondent did not admit the firearm use under section 12022.5, the section under which the trial court imposed sentence.

We first discuss whether, as the People assert, this was an illegal judicial plea bargain by which the trial court violated the separation of powers doctrine, or whether, as respondent argues, it was not a plea bargain but an indicated sentence following a plea to all charges.

 Where a defendant enters a plea and admission to all charges and allegations and the trial court gives an indicated sentence before or after the open plea, there is no illegal plea bargain.   In People v. Vessell (1995) 36 Cal.App.4th 285, 42 Cal.Rptr.2d 241, a three strikes case in which the trial court reduced the respondent's “wobbler” offense to a misdemeanor, we addressed the issue of whether “the trial court's ‘indication that it would reduce the crime to a misdemeanor if the defendant entered a plea of nolo or guilty’ constituted an illegal plea bargain between the court and the defendant.”   (Id. at p. 296, 42 Cal.Rptr.2d 241, fn. omitted.)   We stated, “It is true that under a plea bargain, the defendant may bargain with the People to be permitted to plead to a lesser charge and such a bargain requires the approval of the court.  [Citations.]   However, where the defendant pleads guilty to all charges, all that remains is the pronouncement of judgment and sentencing;  there is no requirement that the People consent to a guilty plea.  [Citations.]   In that situation, the trial court may give an ‘indicated sentence’ which falls within the ‘boundaries of the court's inherent sentencing powers.’  [Citation.]  [¶] Here, the record shows that the court gave an indicated sentence and respondent entered into an open plea.   We conclude that the trial court properly exercised its sentencing discretion and did not participate in an illegal plea bargain.”  (Id. at p. 296, 42 Cal.Rptr.2d 241.)

 The trial court's inherent sentencing powers include modifying a sentence which it deems cruel and unusual punishment.   In In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, the Supreme Court stated, “[L]egislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment, adopted by the people of this state as an integral part of our Declaration of Rights.   It is the difficult but imperative task of the judicial branch, as coequal guardian of the Constitution, to condemn any violation of that prohibition.   As we concluded in People v. Anderson (1972) 6 Cal.3d 628, 640, 100 Cal.Rptr. 152, 493 P.2d 880, ‘The Legislature is thus accorded the broadest discretion possible in enacting penal statutes and in specifying punishment for crime, but the final judgment as to whether the punishment it decrees exceeds constitutional limits is a judicial function.’  [Citations.]”  (In re Lynch, supra, at p. 414, 105 Cal.Rptr. 217, 503 P.2d 921.)   Thus, it could well be argued that this was not a plea bargain at all but merely an indicated sentence following respondent's open plea, to which the prosecution did not object.

 We conclude, however, after careful examination of the record, that this was a plea bargain entered into by the parties.   The trial court's statement at the outset of proceedings-at which it noted that the People “had made” an offer of 12 years, an indication that this offer was then superceded-suggests that the arrangement it described in open court had been discussed and agreed to by the parties during the in-chambers conference.   This conclusion is supported by the utter lack of any dissent, objection, or request for modification by the prosecution either when the trial court summarized the proposed agreement for the record or when it took respondent's plea.   It is only reasonable to expect that if the prosecution believed there was some illegality being perpetrated, or if the People disagreed in any respect with the trial court's statement, some expression of that disagreement would appear somewhere on the record before the court took the plea.   There was none.   This conclusion is further supported by the prosecutor's agreement, without reservation, to the suspension of criminal proceedings for the diagnostic study after respondent entered his plea, since a diagnostic study would only have a purpose if the trial court had a sentencing decision to make within a prescribed “lid.”   The prosecutor's argument at the sentencing hearing after the diagnostic report was received, opposing defense counsel's argument for a lower sentence, does not constitute an objection to the original plea agreement for a sentence of up to 12 years, to which there was no objection.  (See People v. Superior Court (Pipkin) (1997) 59 Cal.App.4th 1470, 1476, fn. 3, 70 Cal.Rptr.2d 180 [waiver of contention regarding illegal plea bargain];  People v. Vessell, supra, 36 Cal.App.4th at p. 296, 42 Cal.Rptr.2d 241, and cases cited.)   Thus, the record strongly indicates that the parties agreed to a guilty plea in exchange for a “lid” of 12 years.

Having concluded that the parties entered into a plea bargain, we consider whether the People may now challenge the sentence imposed under that agreement.

 As the People point out, 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.” 2  It is generally held that “parties may not enter into a negotiated disposition, either by negligence or design, which specifies a sentence not authorized by law.”  (People v. Velasquez (1999) 69 Cal.App.4th 503, 505-507, 81 Cal.Rptr.2d 647.)   However, “[w]hen, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court's power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction.  [Citations.]   Whether he shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy.   A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when ‘To hold otherwise would permit the parties to trifle with the courts.’  [Citation.]”  (In re Griffin (1967) 67 Cal.2d 343, 347-348, 62 Cal.Rptr. 1, 431 P.2d 625.)

 Thus, where a defendant enters a plea in return for a specified sentence, and has received the benefit of his bargain, he is not permitted to “ ‘trifle with the courts' ” and to “attempt[ ] to better the bargain through the appellate process” if the sentence is merely in excess of the trial court's jurisdiction;  he may obtain relief only if there is a lack of fundamental jurisdiction.3  (People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123, 16 Cal.Rptr.2d 490;  see People v. Ellis (1987) 195 Cal.App.3d 334, 342-343, 240 Cal.Rptr. 708.)   We see no reason why the same should not hold true for the prosecution, where, as here, the sentence was merely in excess of the trial court's jurisdiction.  (See Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83, 92, 49 Cal.Rptr.2d 573.)

The estoppel principle has been applied to preclude any challenge to the sentence imposed under a plea bargain in situations where the agreement provided that the felony conviction for violating section 288, subdivision (a) would be reduced to a misdemeanor, former section 647a, after completion of probation, although section 288, subdivision (a) was a straight felony and not a wobbler (People v. Beebe (1989) 216 Cal.App.3d 927, 932, 265 Cal.Rptr. 242);  where two 5-year section 667, subdivision (a) enhancements based on the same prior conviction were imposed in violation of section 1170.1, subdivision (a) (People v. Jones, supra, 210 Cal.App.3d at pp. 136-137, 258 Cal.Rptr. 294);  where a five-year section 667, subdivision (a) prior serious felony conviction enhancement was imposed based on a foreign prior felony conviction admitted by the defendant which did not, as a matter of law, constitute a serious felony pursuant to section 667, subdivision (a) (People v. Ellis, supra, 195 Cal.App.3d at pp. 343-347, 240 Cal.Rptr. 708);  and where a great bodily injury enhancement was imposed on a count of battery with serious bodily injury although section 12022.7 precludes imposition of the enhancement where bodily injury is an element of the offense (People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550-1552, 235 Cal.Rptr. 108).  As do these cases, the situation here involves a bargained-for sentence which is in excess of the court's jurisdiction.

In People v. Velasquez, supra, 69 Cal.App.4th 503, 81 Cal.Rptr.2d 647, the court enforced the terms of a plea bargain which the prosecution “negligently” entered into, thereby giving a “windfall” to the defendant.   (Id. at p. 507, 81 Cal.Rptr.2d 647.)   There, the court modified a sentence to two years where the defendant had entered a plea bargain for probation and a possible prison term of no greater than three years for an offense which carried a punishment of two, four or six years.   When the defendant was sentenced to prison, the trial court, on advice of the prosecutor, imposed the term of four years and stayed one year to comply with the three-year lid in the plea bargain.   The reviewing court rejected the People's claim that the defendant should not be permitted to challenge the unorthodox and unauthorized sentence imposed.   The court distinguished the estoppel cases relied on by the People, and concluded that the defendant there should not be estopped because he was not “ ‘trifling’ ” with the courts but simply wanted to be sentenced in accordance with his plea bargain.  (Id. at p. 506, 81 Cal.Rptr.2d 647.)   Here, to the contrary, the People are attempting to better the bargain through the appellate process.

 We consider whether the estoppel doctrine should be disallowed because to employ it would violate public policy.   In In re Griffin, supra, 67 Cal.2d 343, 62 Cal.Rptr. 1, 431 P.2d 625, the court indicated, “Substantive rules based on public policy sometimes control the allowance or disallowance of estoppel․” (Id. at p. 348, 62 Cal.Rptr. 1, 431 P.2d 625.)

 Despite society's interest in insuring that a defendant is punished in accordance with the statutory provisions governing his conduct, “the presence of a plea bargain injects other policy considerations into the calculus.”   (People v. Ellis, supra, 195 Cal.App.3d at p. 345, 240 Cal.Rptr. 708.)   In this regard, the estoppel doctrine promotes the public policy of preventing parties from “ ‘trifl[ing] with the courts,’ ” thereby bringing the judicial system into disrespect.  (Ibid.) This holds true with respect to the People as well as to defendants.   While section 12022.53 was enacted to punish more severely those persons who use a firearm during the commission of enumerated offenses which are deemed particularly serious (People v. Martinez (1999) 76 Cal.App.4th 489, 497, 90 Cal.Rptr.2d 517), we do not deem the failure of the trial court to sentence under this provision to be unconscionable.   The prosecution, in the exercise of its charging discretion (see People v. Birks (1998) 19 Cal.4th 108, 134, 77 Cal.Rptr.2d 848, 960 P.2d 1073), alleged both firearm use enhancement sections.   Application of the estoppel doctrine in this instance does not affect a policy consideration of the magnitude of that described in In re Griffin, supra, 67 Cal.2d 343, 62 Cal.Rptr. 1, 431 P.2d 625 where the Supreme Court cited a case in which “a defendant who requested and received probation conditioned on banishment was not estopped to attack the condition, for public policy forbids banishment and ‘The law cannot suffer the state's interest and concern in the observance and enforcement of this policy to be thwarted through the guise of waiver of a personal right by an individual.’ ” (Id. at p. 348, 62 Cal.Rptr. 1, 431 P.2d 625.) Here, an enhancement for firearm use was imposed and respondent will serve a prison term which is not insubstantial, particularly for a 19 year old who had never before committed an offense and, therefore, had never been incarcerated.   Considerations of public policy do not, in this case, preclude application of the estoppel doctrine.

This is not a case where the trial court attempted to alter the terms of the plea agreement by imposing a sentence more favorable to the defendant than that provided for.  (Cf. People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1337-1338, 62 Cal.Rptr.2d 220 [trial court could not grant probation where plea bargain provided for specified prison term].)  The sentence imposed was within the terms of the plea bargain agreed to by the parties, and we will not now order it set aside because the prosecution has had second thoughts.

 The People argue that respondent did not admit the firearm use enhancement under section 12022.5.   Although respondent admitted “that [he] personally used a handgun, a firearm, within the meaning of Penal Code section 12022.53(b),” his admission was sufficient to permit enhancement under section 12022.5.   The information alleged that respondent “personally used a firearm, a handgun, within the meaning of Penal Code sections 12022.5(a)(1) and 12022.53(b).”  Section 12022.53, subdivision (b) provides, in pertinent part, for a 10-year enhancement for “any person who is convicted of a felony specified in subdivision (a),4 and who in the commission of that felony personally used a firearm․” Section 12022.5, subdivision (a)(1) provides, in pertinent part, for an enhancement of 3, 4, or 10 years for “any person who personally uses a firearm in the commission or attempted commission of a felony ․ unless use of a firearm is an element of the offense of which he or she was convicted.”   Respondent admitted that he personally used a firearm, which was all that was required for imposition of an enhancement under section 12022.5, whether or not his admission made reference to the actual section number.  (People v. Lewis (1987) 191 Cal.App.3d 1288, 1301, 237 Cal.Rptr. 64;  see People v. Cory (1984) 157 Cal.App.3d 1094, 1101-1103, 204 Cal.Rptr. 117.)

 As the trial court noted, the prosecution had alleged the use of a firearm under both enhancement statutes, and the plea bargain necessarily envisioned the possibility of sentencing under section 12022.5.   The prosecution must adhere to the terms of a plea agreement.  (People v. Walker (1991) 54 Cal.3d 1013, 1024, 1 Cal.Rptr.2d 902, 819 P.2d 861;  In re Troglin (1975) 51 Cal.App.3d 434, 438, 124 Cal.Rptr. 234.)   The People's attempt to preclude the trial court from imposing sentence under section 12022.5 is an attempt to abrogate the terms of the plea bargain, which would render the agreement reached by the parties a mere charade.   The prosecution received the benefit of its bargain and “should not be allowed to ‘ “trifle with the courts” ’ by attempting to better the bargain through the appellate process.''  (People v. Nguyen, supra, 13 Cal.App.4th at p. 123, 16 Cal.Rptr.2d 490.)   We conclude that the trial court properly imposed sentence under section 12022.5, subdivision (a)(1).

The People further argue that the 10 year firearm-use enhancement under section 12022.53, subdivision (b) was not cruel and unusual.   While we uphold the trial court's order as a proper ruling under the terms of the plea bargain, we will address this claim as well.   To do so is particularly appropriate where, as here, it can be argued that there was an indicated sentence rather than a plea bargain.

 Although the Legislature enacts penal statutes and specifies punishment for crime, “ ‘ “the final judgment as to whether the punishment it decrees exceeds constitutional limits is a judicial function.” ’ ” (People v. Dillon (1983) 34 Cal.3d 441, 478, 194 Cal.Rptr. 390, 668 P.2d 697 (Dillon ).)  In Dillon, the court found particularly relevant to this issue an examination of the nature of the offense and of the offender, “ ‘with particular regard to the degree of danger both present to society.’ ” (Id. at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697.)   In analyzing the nature of the offense the court considers the circumstances 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, and in analyzing the nature of the offender, the court considers his “age, prior criminality, personal characteristics, and state of mind.”  (Ibid.) “[A] punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant's individual culpability.”  (Id. at p. 480, 194 Cal.Rptr. 390, 668 P.2d 697.)

In People v. Mora (1995) 39 Cal.App.4th 607, 46 Cal.Rptr.2d 99 (Mora ), the court considered the People's challenge after a trial court reduced a conviction of first degree murder with special circumstances and a sentence of life without parole to a conviction of ordinary first degree murder and a sentence of 25 years to life.   The court stated, “The punishment provided by law may ․ run afoul of the constitutional prohibition against cruel or unusual punishment in article I, section 17, of the California Constitution.   If the punishment mandated by law for a special circumstances murder is so grossly disproportionate to a particular defendant's individual culpability as to constitute cruel or unusual punishment under Dillon, a court has authority to prevent the imposition of unconstitutional punishment.  [Citations.]   In such cases the punishment is reduced because the Constitution compels reduction, not because a trial court in its discretion believes the punishment too severe.   Reduction of sentence under Dillon ‘ “must be viewed as representing an exception rather than a general rule.” ’ [Citation.]”  (Mora, supra, at p. 615, 46 Cal.Rptr.2d 99.)

The court in Mora determined that, subject to the trial court's finding of the underlying facts, the decision to reduce punishment under Dillon presents a question of law for independent review rather than a discretionary decision subject to deferential review.  (Mora, supra, 39 Cal.App.4th at p. 615, 46 Cal.Rptr.2d 99.)

In Mora, the trial court had reduced the defendant's sentence because it found the defendant's conduct to be less culpable than that of his codefendant, who was the actual shooter.   The reviewing court pointed out that the sentencing scheme at issue there, section 190.2, provided no sentencing discretion based on whether the defendant was the shooter or, as in Mora's case, an aider and abettor who was a major participant in the underlying felony acting with reckless indifference to human life.   Therefore, the Constitution did not compel that the defendant's sentence be less than that of his codefendant.   The reviewing court further pointed out that the trial court did not rely on an analysis of the nature of the offender, but that in any event the defendant was 23 years old and had three prior convictions of increasing seriousness and unsatisfactory performance on probation.  (Mora, supra, 39 Cal.App.4th at pp. 617-618, 46 Cal.Rptr.2d 99.)

In Dillon, the Supreme Court reduced a conviction of first degree murder under the felony-murder rule to murder in the second degree, thus reducing the sentence as well, in the case of an immature 17-year-old defendant with no prior criminal record who panicked and shot and killed a man guarding a field from which the defendant and his companions had planned to steal marijuana.   The trial court and jury had manifested their beliefs that the statutory punishment was excessive in relation to the defendant's culpability.   The Supreme Court quoted the remarks of the trial judge, who indicated that the defendant was “ ‘less than 17 in many respects, emotionally, intellectually, and in a lot of other ways[,]’ ” that the trial judge did not consider him to be dangerous in terms of the risk of future harm, that he had no record and the crime was “ ‘out of context,’ ” and that although he had shot the victim nine times, it was an unplanned, albeit intentional, killing.  (Dillon, supra, 34 Cal.3d at p. 486, 194 Cal.Rptr. 390, 668 P.2d 697.)   The Supreme Court found that “in the circumstances of this case the punishment of this defendant by a sentence of life imprisonment as a first degree murderer violates article I, section 17, of the Constitution.   Nevertheless, because he intentionally killed the victim without legally adequate provocation, defendant may and ought to be punished as a second degree murderer.”  (Id. at p. 489, 194 Cal.Rptr. 390, 668 P.2d 697.)

In In re Rodriguez (1975) 14 Cal.3d 639, 122 Cal.Rptr. 552, 537 P.2d 384, the Supreme Court held that a term of 22 years served for a conviction of committing a lewd act on a child was unconstitutionally excessive.   The court considered the manner in which the offense was committed, as well as the defendant's history and personal traits, and concluded that, as to him, “neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify [the] period of imprisonment.”  (Id. at p. 655, 122 Cal.Rptr. 552, 537 P.2d 384, fn. omitted.)   In analyzing the manner of commission of the offense, which did not involve a weapon, the court observed that while the offense was “by no means ‘trivial,’ ․ the method of its commission involved no violence and caused no physical harm to the victim.”  (Id. at pp. 654-655, 122 Cal.Rptr. 552, 537 P.2d 384.)   The court pointed out the defendant's lack of any criminal history apart from problems associated with his sexual maladjustment, as well as his limited intelligence and the frustrations and inability to cope resulting from his intellectual and sexual inadequacy.  (Ibid.) The court concluded that service of 22 years of a life maximum term was constitutionally disproportionate.

 Here, the robbery with use of a firearm was a serious but not egregiously aggravated crime.   While the Legislature has provided that the section 12022.53 enhancement is mandatory (§ 12022.53, subd.(h)), it is for the courts to decide whether the punishment mandated is constitutional as applied to the particular defendants before them.  (Dillon, supra, 34 Cal.3d at p. 478, 194 Cal.Rptr. 390, 668 P.2d 697.)   We conclude, after independent review, that while the nature of the offense committed by respondent was by no means trivial, and the statutory punishment is not unconstitutional on its face (see People v. Martinez, supra, 76 Cal.App.4th at pp. 494-496, 90 Cal.Rptr.2d 517), the 12-year sentence would have been excessive in relation to this particular offender.   At the time of the offense respondent was an immature 18-year-old, suffering from a learning disability, who was not criminally oriented and had excellent prospects and no prior record.   The trial court did not err in ruling that the 12-year term would have been unconstitutionally excessive.


The order under review is affirmed.


1.   Unless otherwise specified, all further statutory references are to the Penal Code.

2.   As the People also point out, the trial court did not actually strike the section 12022.53 allegation, but it did not impose an enhancement under that section.

3.   An unauthorized sentence is one which “could not lawfully be imposed under any circumstance in the particular case.”   Such a sentence is merely in excess of the court's jurisdiction.  (People v. Scott (1994) 9 Cal.4th 331, 354 and fn. 17, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   Fundamental jurisdiction, in contrast, refers to the court's “ ‘ “power to hear or determine the case, ․ authority over the subject matter or the parties.” ’ ” (People v. Jones (1989) 210 Cal.App.3d 124, 135, 258 Cal.Rptr. 294.)

4.   Subdivision (a) of section 12022.53 includes robbery in violation of section 211.

NOTT, Acting P.J.

We concur:  COOPER, J.** and DOI TODD, J.