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Name: People v. Centeno
Case #: D073977
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 08/08/2019

Under Penal Code section 1203.06, a court cannot grant probation to someone who commits a robbery with a firearm even if the court had discretion to strike the firearm enhancement. Centeno entered a marijuana dispensary and, holding a gun, announced a robbery. He later escaped after being shot by an employee. Centeno pleaded guilty to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), robbery (Pen. Code, § 211), and possession of marijuana. As to counts one and two, he admitted personal use of a firearm (Pen. Code, § 12022.5, subd. (a)). The court sentenced Centeno to prison for three years on count one, stayed the sentence on count two, and struck the gun enhancement under Penal Code section 1385. On appeal, Centeno argued the court abused its discretion by failing to grant him probation. Held: Affirmed. Penal Code section 1203.06, subdivision (a)(1) provides “probation shall not be granted” to any person who personally uses a firearm during the commission of certain enumerated crimes, including robbery. “Used” a firearm means to “display a firearm in a menacing manner.” Under the clear language of the statute, Centeno was ineligible for probation because he personally used a firearm during a robbery. The fact that the trial court struck the firearm enhancement does not change this result. In People v. Tanner (1979) 24 Cal.3d 514, the California Supreme Court held that a trial court could not avoid the mandatory provisions of section 1203.06 by striking a firearm allegation under section 1385. Furthermore, to the extent Senate Bill No. 620 granted trial courts new discretion to strike firearm enhancements in the interest of justice, nothing in these amendments permits a trial court to disregard section 1203.06’s restriction on granting probation. Centeno committed a robbery with a firearm, regardless of whether the court struck the firearm enhancement. Thus, the trial court correctly found it had no authority to grant probation.

The full opinion is available on the court’s website here: