Great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)) must be stayed when trial court also imposes a firearm use enhancement (Pen. Code, § 12022.53, subd. (d)). When he was 15 years old, Garcia shot a woman in the face while trying to rob her of her purse and car. He was tried as an adult. The jury convicted him of attempted first degree murder and found true allegations that he personally and intentionally discharged a firearm causing great bodily injury (GBI) (Pen. Code, § 12022.53, subd. (d)) and that he personally inflicted GBI (Pen. Code, § 12022.7, subd. (a)). The trial court sentenced him to 35 years to life: 7 years for the attempted murder, a consecutive term of 25 years to life for the firearm use enhancement, plus a consecutive term of 3 years for the GBI enhancement. Garcia appealed, arguing that the GBI enhancement must be stayed. Held: Affirmed as modified. Under section 12022.53, subdivision (f), “An enhancement for great bodily injury as defined in 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).” Here, the trial court imposed a 25-year-to-life enhancement under subdivision (d). Accordingly, the trial court should have stayed the three-year enhancement under 12022.7. This results in a new sentence of 32 years to life.

Juvenile offender’s sentence of 32 years to life does not amount to cruel and unusual punishment under the Eighth Amendment. Garcia also argued that the 32-years-to-life sentence violates his right to be free from cruel and unusual punishment under the Eighth Amendment. The court of appeal disagreed. Garcia’s sentence is not the functional equivalent to life without the possibility of parole (LWOP). After 32 years, he will be approximately 47 years old, well within his life expectancy. Thus, Garcia’s sentence is distinguishable from juvenile sentences that courts have held amount to cruel and unusual punishment. (See Graham v. Florida (2010) 560 U.S. 48 [LWOP]; Miller v. Alabama (2012) 567 U.S. ___ [LWOP]; People v. Caballero (2012) 55 Cal.4th 262 [110 years to life].) Furthermore, even if Garcia’s sentence was the functional equivalent to LWOP, recently enacted Penal Code section 3051 guarantees him a parole hearing after 25 years and thus satisfies the concerns regarding juvenile sentences discussed in Graham, Miller, and Caballero. [Editor’s Note: The issue of whether section 3051 satisfies the requirements of Graham, Miller, and Caballero is currently pending in the California Supreme Court. (See In re Alatriste (2013) 220 Cal.App.4th 1232, review granted 2/19/2014 (S214652/B248072); In re Bonilla (2013) 220 Cal.App.4th 1232, review granted 2/19/2014 (Ss214960/B248199); People v. Franklin (2014) 224 Cal.App.4th 296, review granted 6/11/2014 (S217699/A135607).)]

Juvenile offender’s sentence of 32 years to life does not amount to cruel and unusual punishment under article I, section 17 of the California Constitution. A sentence violates the California Constitution’s prohibition against cruel and unusual punishment if it “is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (People v. Dillon (1983) 34 Cal.3d 441, 450; In re Lynch (1972) 8 Cal.3d 410, 424.) In Lynch, the California Supreme Court identified three analytical techniques a court must use to determine whether a punishment is disproportionate to the crime: (1) the nature of the offense and the offender with particular regard to the degree of danger both present to society, (2) comparison of the punishment imposed with the punishment imposed for more serious crimes, and (3) comparison of the punishment imposed with punishments imposed for the same crimes in different jurisdictions. A punishment need not be disproportionate under all three techniques. Here, Garcia only argued that his sentence was disproportionate under the first factor. The Court of Appeal disagreed. The offense Garcia committed presents a great danger to society: he shot a woman in the face while robbing her and is lucky she survived. Although Garcia was barely 15 years old when he committed the offense, he was not remorseful and showed signs of rebelliousness and unwillingness to abide by the law. His failure to take responsibility increases his individual culpability. The court could not say that the California Constitution compelled the reduction of his sentence.