People v. Tanner
| Decision Date | 02 May 1977 |
| Docket Number | Cr. 15777 |
| Citation | 138 Cal.Rptr. 167,69 Cal.App.3d 469 |
| Parties | PEOPLE of the State of California, Plaintiff and Appellant, v. Harold Emory TANNER, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Patrick G. Golden, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.
Monroe & Riddet, Keith C. Monroe, Roger S. Hanson, Santa Ana, for amicus curiae, Cal. Attys. for Criminal Justice.
George C. Martinez, San Francisco, for amicus curiae, Cal. Trial Lawyers Ass'n Amicus Committee.
Thomas J. Nolan, Jr., Menlo Park, for defendant and respondent.
Wilbur F. Littlefield, Public Defender of Los Angeles County, Harold E. Shabo, Dennis A. Fischer, Deputy Public Defenders, Los Angeles, for amicus curiae.
We are confronted with the first impression question whether the trial court is empowered to strike a use of firearm allegation--found to be true by a properly instructed jury--in order to grant probation to an armed robber who, as a matter of law, is ineligible for probation under PENAL CODE, SECTION 1203.061. The basic facts are not in dispute and may be summarized as follows:
On January 9, 1976, at about 3 a. m., respondent Tanner entered a 7-11 store in East Palo Alto. He looked at the night clerk, Peter Bishop, and walked behind the counter. Pointing a gun at the clerk, he said, 'you know what's happening.' When Bishop replied 'it's all yours,' Tanner instructed him to open the cash registers and floor safe and remove money from them. Bishop complied. Upon taking numerous dollar bills and a roll of quarters, respondent left the store.
During the robbery, respondent showed an unusual attitude indeed. He engaged in a conversation with Bishop, telling him that he need not worry; that he (Tanner) worked for 7-11 stores himself; and that Bishop should call the police, identify Tanner and 'play it straight.' On leaving, he reminded Bishop to turn in an alarm and notify the police.
After Tanner's departure, Bishop turned in an alarm, called the San Mateo County Sheriff, and described respondent's car. In response to a radio dispatch from the sheriff's office, Deputy Sheriffs Schweizer and Rosengart proceeded to the area of the robbery. Shortly thereafter, they spotted and stopped respondent's car. Tanner got out and was pat searched. During the course of the pat search, several bills were seen inside Tanner's coat pocket. Deputy Schweizer removed $41.05 in coins and currency from the pocket.
A subsequent search of respondent's car revealed an attache case containing an operable, but unloaded, revolver and some empty alcoholic beverage containers. While there was a smell of alcohol about him, respondent was not staggering nor was his speech slurred.
Tanner admitted to the deputies that he had robbed the 7-11 store, but claimed that he had done so in the line of duty as a security employee to test the security of the store. His employer, Jack Dyer, however, failed to corroborate respondent's story. While admitting that Tanner's job included surveillance of Bay Area 7-11 stores, Dyer insisted that at no time was Tanner told to carry a weapon or to shoplift any item. Further, the store in question was not a client of Dyer at the time of the robbery.
In his trial testimony, Tanner deviated from the version he had given to the police. While acknowledging that he had committed the robbery in question, Tanner explained that he did so in order to impress the owner of the 7-11 store and induce him to resubscribe to the discontinued security service offered by his employer, Dyer. At the trial Tanner also maintained that he thought the gun used in the commission of the robbery was inoperable, and that while he had been drinking on the night of the robbery, he was not intoxicated.
Respondent was charged with robbery in violation of section 211. It was further alleged that at the time of perpetration of the offense respondent was armed and did use a firearm, a .22 caliber revolver. Following a trial by jury, respondent was found guilty of robbery in the first degree. The jury also found that Tanner had used a firearm in the commission of the offense.
The trial court sentenced respondent to the Department of Corrections for the term prescribed by law. However, in contravention of section 1203.06, prescribing a mandatory prison sentence, the trial court suspended the execution of sentence and placed respondent on probation by striking the use allegation pursuant to section 1385 and by holding that section 1203.06 is unconstitutional insofar as it purports to invade the judicial function of sentencing.
On appeal, the People assail the order of the trial court on both counts. First, if is contended that section 1203.06 does not violate the doctrine of separation of powers and therefore is not subject to constitutional challenge. Second, it is maintained that the striking of the use allegation should be held improper because it is contrary to the clear meaning and intent of section 1203.06 prohibiting probation in cases of robbery committed with a firearm. In rebuttal, respondent, supported by amici curiae, argues that the trial court has inherent power to control the proceedings before it, and that the order striking the use allegation should be deemed a proper exercise of the court's inherent power of sentencing. In the alternative, it is contended that section 1203.06 is unconstitutional inasmuch as it purports to divest the trial court of its asserted inherent power of sentencing. Lastly, it is claimed that section 1203.06, which mandates a sentence of five years to life for individuals who use a firearm in the course of a robbery is cruel and unusual punishment prohibited by article I, section 17 of the California Constitution.
Constitutionality of section 1203.06: As appears above, the constitutionality of section 1203.06 is challenged on two main grounds: one, that it violates the constitutional doctrine of separation of powers by unlawfully interfering with the sentencing function of the court which--it is contended--emanates from the Constitution; two, that the mandatory sentence of five years to life to be imposed regardless of the circumstances of the individual case constitutes cruel and unusual punishment. As the ensuing discussion demonstrates, neither of these contentions has any merit.
To begin with, it bears emphasis that probation is not an absolute right to which a convicted person is entitled; rather, it is an act of grace and clemency (People v. Brasley (1974) 41 Cal.App.3d 311, 316, 115 Cal.Rptr. 910; Bennett v. Superior Court (1955) 131 Cal.App.2d 841, 845, 281 P.2d 285). More to the point, the cases underline that probation has no constitutional basis ( In re Oxidean (1961) 195 Cal.App.2d 814, 817-818, 16 Cal.Rptr. 193; People v. Miller (1960) 186 Cal.App.2d 34, 8 Cal.Rptr. 578); and that the courts have no inherent power to grant probation (People v. Westoby (1976) 63 Cal.App.3d 790, 798, 134 Cal.Rptr. 97; People v. Clay (1971) 18 Cal.App.3d 964, 969, 96 Cal.Rptr. 213). On the contrary, the authority of a court to grant probation and suspend the execution of a sentence is wholly statutory. Consequently, the statute itself furnishes the measure of power which may thus be exercised (People v. Brown (1959) 172 Cal.App.2d 30, 34, 342 P.2d 410; People v. O'Donnell (1918) 37 Cal.App. 192, 197, 174 P. 102).
A case in point is People v. Hess (1951) 104 Cal.App.2d 642, 234 P.2d 65. In that case it was contended that the provisions of section 1203, which at that time--similar to section 1203.06--called for a mandatory prison sentence in the instances specified therein, were unconstitutional insofar as they restricted the right of the trial court to grant probation to a defendant who had been convicted of robbery. In rejecting that argument, the court stated: . The conclusion reached in Hess has been reaffirmed in Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 488, 470 P.2d 617, 624, the Supreme Court stating that 'subject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch.' (Emphasis added.)
We note that respondent's reliance on People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, and its progeny (i.e., People v. Navarro (1972) 7 Cal.3d 248, 102 Cal.Rptr. 137, 497 P.2d 481; In re Cortez (1971) 6 Cal.3d 78, 98 Cal.Rptr. 307, 490 P.2d 819; Esteybar...
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People v. Watkins
...a date was set for a hearing on probation and sentence, the trial court alluded to the Court of Appeal opinion in People v. Tanner, 69 Cal.App.3d 469, 138 Cal.Rptr. 167, and indicated that he would consider the possibility of striking the allegation under Penal Code section Later at appella......