Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County. No. LA059782 Darlene Schempp, Judge.
Lenore De Vita, 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, Chung L. Marr and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
Appellant Lionel Bradley was convicted after trial of two counts of second degree robbery in violation of Penal Code section 211. The jury found true the allegations that in committing both offenses, Bradley was a principal armed with a handgun within the meaning of section 12022, subdivision (a)(1). After finding a state prison sentence was mandatory, the court imposed a sentence of five years and ordered the payment of statutory fines. Bradley appeals on the ground that the trial court erred in concluding he was ineligible for probation and asks us to remand for sentencing so the trial court may consider whether to exercise its discretion to grant probation. We find Bradley cannot demonstrate prejudice from any sentencing error and affirm the judgment.
All further references are to the Penal Code unless otherwise stated.
BACKGROUND
Bradley was charged with four counts of second degree robbery, each of which was alleged to be a serious and violent felony within the meaning of sections 667.6, subdivision (c), and 1192.7, subdivision (c). The information also alleged that in the commission of the crimes charged, Bradley was a principal armed with a firearm, a handgun, in violation of section 12022, subdivision (a)(1). Two of the four victims testified at trial, and the jury convicted Bradley of the charged crimes he committed against those victims. The trial court declared a mistrial as to the remaining two counts and granted the People’s motion to dismiss those counts.
Bradley does not contend there was insubstantial evidence to support the verdicts, so we will discuss the facts only briefly. Bradley rented a car from Enterprise Rent-A-Car on July 19, 2008, and a few hours later, he used it to commit the robberies together with another man who was a passenger in the car. In the early morning hours of July 20, 2008, four men in another car were on their way to a party and got lost in the Hollywood Hills. They pulled over to use the car’s navigation system to get directions. Bradley and his passenger pulled alongside the victims’ car. The passenger jumped out with a gun, yelling at the victims to give him everything they had. The gunman ordered the victims out of the car one by one, pointing the gun at each of them. Bradley yelled to the gunman, “Let’s go. Get it all. Let’s go.” The two victims who testified said they had a clear view of Bradley’s face as they watched what was happening. They both testified that Bradley did not seem shocked or surprised; one victim testified, “It seemed like he knew exactly what was going on.”
The gunman took the victims’ cell phones, watches and wallets, tossed them into Bradley’s car, jumped back into the car, and the two sped away. The victims memorized the license plate number and provided it to police. They later identified appellant from several six-pack photographic lineups and identified Bradley’s car and the gun from photographs. After obtaining Bradley’s address from Enterprise Rent-A-Car, detectives entered Bradley’s residence and found two of the stolen watches. They also found the gun that was used in the robberies, under the couch in the living room.
After the jury had been excused and the court declared a mistrial as to two counts of robbery, the court asked defense counsel if Bradley was ready for sentence. Bradley waived arraignment for judgment and stated there was no legal cause why sentence should not be pronounced after the court stated that it had read and considered the probation report. The probation report was a preconviction report prepared on December 17, 2008, five months before trial. The probation report stated that Bradley was not eligible for probation, unless the court found unusual circumstances.
Bradley asked the court to stay or suspend imposition of sentence and to grant him probation. His counsel said, “I believe he is probation eligible.” He argued that although “there was a gun involved, ” it was Bradley’s first offense, and recently, Bradley had a good employment record driving a truck interstate. Bradley then submitted the matter to the court. The court found a state prison sentence was mandatory because the offenses were violent and serious felonies “since a gun was used, ” and that probation could not be granted unless there were extraordinary circumstances. The People argued for a five-year prison sentence, explaining that before trial, the People had offered Bradley that if he admitted two counts of second degree robbery, the People would agree to a five-year prison “lid.” The court considered the mitigating factors of Bradley’s age (23 years old) and the lack of a prior record, and the aggravating factors that he was a danger to the community, he was an active participant in the crimes, and the crimes involved great violence or bodily harm. The court then imposed the five-year prison sentence.
Bradley raises one claim of sentencing error in this appeal. He claims the court violated his Fourteenth Amendment rights when it sentenced him to prison in the mistaken belief that he was ineligible for probation and without evaluating the factors governing whether a grant of probation may be appropriate.
ANALYSIS
A. Standard of Review
We review sentencing decisions, including whether to grant probation or sentence a defendant to prison, for an abuse of discretion. “A court abuses its discretion ‘whenever the court exceeds the bounds of reason, all of the circumstances being considered.’” (People v. Downey (2000) 82 Cal.App.4th 899, 909.) “Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court.” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8, citing United States v. Tucker (1972) 404 U.S. 443, 447.) An arbitrary violation of state sentencing law violates a defendant’s right to due process under the Fourteenth Amendment. (Hicks v. Oklahoma (1980) 447 U.S. 343, 437.)
B. Any Sentencing Error Was Harmless.
Bradley contends the trial court denied him probation in the mistaken belief that he was ineligible under section 1203, subdivision (e)(2), because he was armed with a handgun in the commission of the robberies. In People v. Alvarez (2002) 95 Cal.App.4th 403 (Alvarez), the court held that the section 1203, subdivision (e)(2) presumption of probation ineligibility applies only to a defendant who is convicted of personal use of a firearm, and not to a defendant who was only a principal armed with a firearm. The People “disagree” with Alvarez on the ground that the Alvarez court erred in finding section 1203, subdivision (e)(2), is limited to the personal use of a firearm. The People have not persuaded us to depart from Alvarez.
The People also contend that Bradley forfeited his right to review of the claimed sentencing error because his counsel did not object to the trial court’s finding that a state prison sentence was mandatory. Bradley did not object to the trial court’s statement that a prison sentence was mandatory, but his counsel asked for probation and stated he believed Bradley was eligible for probation. He argues that an objection would have been futile. We find nothing in the record to suggest the trial court was unwilling to consider an objection to the sentencing choice to deny probation. The trial court was patient throughout the trial and consistently demonstrated deference to defendant’s right to a fair trial.
However, assuming that Bradley preserved his claim of sentencing error for appeal, we find the trial court’s failure to recognize its discretion to grant probation was harmless. If the trial court had not found Bradley presumptively ineligible for probation, the court still undoubtedly would have sentenced Bradley to state prison. Although Bradley had no criminal record, his conviction of two well-planned robberies that involved great violence, in which he was an active participant armed with a firearm, clearly established he is a danger to the community. Under the circumstances of this case, we do not believe it is reasonably probable the court would have considered a grant of probation or imposed a different sentence. (People v. Landon (2010) 183 Cal.App.4th 1096, 1103-1105 [no remand where trial court unaware defendant was eligible for probation because not reasonably probable court would grant probation]; People v. Coelho (2001) 89 Cal.App.4th 861, 889-890 [no remand where trial court unaware of discretion to impose concurrent terms because not reasonably probable court would impose a different sentence].)
DISPOSITION
We affirm the judgment.
We concur: RUBIN, ACTING P. J.FLIER, J.