Filed 8/8/19
                           CERTIFIED FOR PUBLICATION


               COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



THE PEOPLE,                                      D073977

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. SCS294500)

EMMANUEL JOSE CENTENO,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County, Francis M.

Devaney, Judge. Affirmed.

        Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C.

Taylor, Deputy Attorneys General for Plaintiff and Respondent.
       Emmanuel Jose Centeno pled guilty to assault with a semiautomatic firearm (Pen.

Code,1§ 245, subd. (b); count 1), robbery (§ 211; count 2), and possession of more than

28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)(2); count 3). Centeno

also admitted allegations as to counts 1 and 2 that he personally used a firearm in

committing the offenses within the meaning of Penal Code section 12022.5,

subdivision (a).

       The trial court sentenced Centeno to prison for three years on count 1 and stayed

his sentence for count 2. Under section 1385, the court struck the gun enhancements for

purposes of sentencing. In addition, for count 3, the court imposed credit for time served.

       Centeno appeals, contending the trial court abused its discretion by failing to grant

him probation. In the alternative, Centeno maintains the court erroneously failed to

recognize its discretion to strike count 2 (robbery). We affirm.

                               FACTUAL BACKGROUND

       Because Centeno pled guilty, both parties rely on the probation report for the facts

of Centeno's underlying crimes. Based on their agreement as to the facts and as a matter

of convenience, we adopt the facts as set forth in the respondent's brief.

       On June 29, 2017, at approximately 3:00 a.m., Centeno and another male entered a

marijuana dispensary and Centeno, holding a gun, announced a robbery. An employee of

the dispensary was placed in a room. The employee retrieved a gun left in the room by a

security guard and returned to the "bud room." Six suspects were there, and the



1      Statutory references are to the Penal Code unless otherwise specified.
                                             2
employee started shooting. Centeno was shot and fell to the floor. Another suspect

helped Centeno leave the dispensary. The employee identified Centeno as the robber

with the gun. Centeno was transported to a hospital for treatment of two gunshot

wounds. Initially, Centeno lied and said he had been in an argument with unknown

males when he was shot but eventually admitted he was shot at a marijuana dispensary on

Third Avenue. Centeno said he wished he had thought things through before he

committed the robbery. The police spoke to Centeno's cohort in the hospital parking lot

and searched his car. Several packages of concentrated cannabis samples, "wax," and

jars of marijuana were found in the car. The cohort told the officers that Centeno was

handing him the packages when he heard gunfire and saw Centeno fall to the floor.

                                       DISCUSSION

                                              I

  THE COURT DID NOT HAVE DISCRETION TO AWARD PROBATION UNDER
             THE UNIQUE FACTS OF THE INSTANT ACTION

                                 A. Centeno's Contentions

       Centeno asserts that the trial court abused its discretion when it failed to grant him

probation. To this end, he argues that amendments to sections 12022.53 and 1385

allowed the trial court to strike the firearm enhancement as well as grant him probation

despite the clear language of section 1203.06. In the alternative, he contends the trial

court could have dismissed the robbery conviction to eliminate any restrictions in

section 1203.06 that would have prohibited the court from granting probation. We reject

these contentions.


                                              3
                                       B. Background

       Centeno pled guilty to assault with a semiautomatic firearm, robbery, and

possession of marijuana. He also admitted personal use of a firearm in the commission of

counts 1 and 2. The court continued Centeno's initial sentencing hearing to allow the

parties to research whether the court had discretion to grant Centeno probation.2 Centeno

filed a motion to dismiss the gun enhancements and to grant probation. He asserted in

the motion that the court had authority to strike a personal gun use enhancement under

sections 12022.53, subdivision (h) and 1385. In support of his position, Centeno relied

on People v. Woods (2018) 19 Cal.App.5th 1080, where the court determined that the

amendments to sections 12022.53 and 1385 applied retroactively and remanded the case

to allow the trial court to exercise its discretion to determine whether to strike the

section 12022.53, subdivision (d), enhancement and its mandatory 25-years-to-life term.

(Woods, at pp. 1090-1091.) Centeno also argued the instant matter was analogous to

People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), in which our high

court concluded a trial court has discretion to dismiss a prior strike conviction allegation

under section 667. Finally, Centeno argued that the legislative intent set forth in

section 12022.53, subdivision (h) should be applied to the prohibition on granting

probation in section 1203.06.

       At the sentencing hearing on April 4, 2018, the trial court indicated that it would

like to grant probation in this case but did not have the authority to do so. The court


2     The probation report indicated that under section 1203.06, subdivision (a)(1),
Centeno was "absolutely ineligible for probation."
                                              4
recognized that it had the discretion to strike the firearm enhancements under

section 12022.5 for sentencing, but section 1203.06, subdivision (a), prohibited a grant of

probation where a defendant used a firearm in the commission of a robbery. The court

also recognized that by amending sections 12022.53 and 12022.5 to allow a trial court to

strike the firearm enhancements for the purpose of sentencing, the Legislature stated that

imposition of the additional and consecutive terms under the weapons enhancements in

those sections was discretionary; however, the Legislature did not similarly amend

section 1203.06, which still prohibits granting probation when a defendant uses a firearm

during the commission of certain crimes. The court pointed out that the recent

amendments to the weapon use enhancement statutes addressed the imposition of lengthy

additional sentences for using a firearm and did not provide for granting probation. The

court concluded that although it would like to allow Centeno to attend the Delancey

Street probation program, section 1203.06 and People v. Tanner (1979) 24 Cal.3d 514

(Tanner) made Centeno ineligible for a grant of probation in this case. As such, the court

sentenced Centeno to the low term of three years on count 1 and struck the firearm

enhancements under section 12022.5 for the purposes of sentencing.




                                             5
                                         C. Analysis

       Although Centeno points us toward section 12022.53 and Senate Bill No. 620,

which amended that section, we believe the prudent junction to begin our analysis is

section 1203.06. The trial court believed section 1203.06 prohibited him from granting

probation in this case. Centeno argues the trial court was wrong. It was not.

       We apply settled standards for construing a statute: " 'Our fundamental task is to

determine the Legislature's intent and give effect to the law's purpose. [Citation.] We

begin by examining the statute's words " 'because they generally provide the most reliable

indicator of legislative intent.' [Citation.] If the statutory language is clear and

unambiguous our inquiry ends." ' [Citation.] In that case, the plain meaning of the statute

is controlling, and ' "resort to extrinsic sources to determine the Legislature's intent is

unnecessary." ' " (Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 633-634.)

       Section 1203.06, subdivision (a)(1) provides:

           "Notwithstanding any other provision of law, probation shall not be
           granted to, nor shall the execution or imposition of sentence be
           suspended for, nor shall a finding bringing the defendant within this
           section be stricken pursuant to Section 1385 for, any of the
           following persons:

           "(1) Any person who personally used a firearm during the
           commission or attempted commission of any of the following
           crimes:"

One of the enumerated crimes is robbery. (§ 1203.06, subd. (a)(1)(B).) The statute

further explains that the phrase " 'used a firearm' means to display a firearm in a

menacing manner, to intentionally fire it, to intentionally strike or hit a human being with



                                               6
it, or to use it in any manner that qualifies under Section 12022.5." (§ 1203.06,

subd. (b)(2).)

       Here, the subject statute's language is clear. If a defendant personally used a

firearm during the commission of a robbery, he or she is ineligible for probation.

Moreover, the statute clarifies that "[t]he existence of any fact that would make a person

ineligible for probation . . . shall be alleged in the accusatory pleading, and either

admitted by the defendant in open court, or found to be true by the trier of fact."

(§ 1203.06, subd. (b)(1).) In the instant action, the felony complaint alleged, among other

things, that Centeno used a firearm in the commission of a robbery. And Centeno

admitted at his change of plea hearing that he committed the crime of robbery and

personally used a handgun in doing so. Accordingly, under the plain language of section

1203.06, Centeno is ineligible for probation.

       Our conclusion is buttressed by Tanner, supra, 24 Cal.3d 514, which also involved

section 1203.06. In that case, the California Supreme Court considered whether a trial

court could use section 1385 to strike a firearm allegation and thereby avoid the

mandatory prohibition in section 1203.06. (Tanner, at p. 518.) The court answered the

question in the negative finding that the mandatory provisions of section 1203.06 could

not be avoided by employing section 1385. (Tanner, at p. 519.) To hold otherwise

would nullify section 1203.06 and restore prior law allowing a trial court to grant

probation anytime it deemed such a grant appropriate in the interests of justice. (Tanner,

at pp. 519-520.) The court observed that "whereas section 1385 is general in nature,

relating to the broad scope of dismissal, section 1203.06 is specific, relating to the limited

                                               7
power of dismissal for purposes of probation—the very matter at issue." (Tanner, at

p. 521.)

       Likewise, here, we are not persuaded by Centeno's claim that section 12022.53, as

modified by Senate Bill No. 620, somehow allows the trial court to ignore the clear

mandate of section 1203.06 so it can grant probation in this matter. Section 12022.53,

subdivision (h) provides, in part: "The court may, in the interest of justice pursuant to

Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise

required to be imposed by this section." Thus, subdivision (h) grants a trial court

discretion to strike a firearm enhancement so that the court does not have to increase a

defendant's sentence under section 12022.53, subdivisions (b), (c), or (d). However,

there is nothing in section 12022.53 that allows the court to disregard the restrictions on

granting probation found in section 1203.06.3 Section 12022.53, subdivision (h) simply

permits a trial court to strike a firearm enhancement with the result that the court does not

have to increase the defendant's sentence for using a firearm in the commission of the

subject offense. The subdivision has no impact on the defendant's conviction for the

underlying crime. Put differently, the fact that the court struck the firearm enhancement

for sentencing purposes did not change the fact that Centeno committed robbery with a



3      Section 12022.5, subdivision (c) operates like section 12022.53, subdivision (h).
We mention this because there is some confusion in the record regarding whether the
firearm enhancements were alleged under section 12022.5 or section 12022.53.
Nevertheless, Centeno uses the later statute to challenge the court's failure to grant
probation here. Regardless of which statute is at issue (section 12022.5 or
section 12022.53), our analysis would remain the same. Neither statute impacts section
1203.06.
                                              8
firearm. (Cf. People v. Fuentes (2016) 1 Cal.5th 218, 225 [" 'Striking an aspect of an

enhancement does not "operate to defeat the factual finding of the truth of the

[allegation], instead, such act merely serves to prohibit a certain purpose for which the

[allegation] may be used." ' "].)

       Contrary to Centeno's argument, Romero, supra, 13 Cal.4th 497 and People v.

Aubrey (1998) 65 Cal.App.4th 279 (Aubrey) do not warrant a different conclusion. In

fact, Romero supports our analysis here. In that case, the court recognized the

Legislature's authority to "eliminate the courts' power to make certain sentencing

choices" because subject to the prohibition against cruel and unusual punishment, " 'the

power to define crimes and fix penalties is vested exclusively in the legislative branch.' "

(Romero, at p. 516, citing Tanner, supra, 24 Cal.3d at p. 519, fn. 3.) Therefore, Romero

does not stand for the proposition that a trial court can ignore the clear dictates of

section 1203.06, which explicitly prohibits a court from granting probation for a robbery

committed with a firearm.

       Aubrey, supra, 65 Cal.App.4th 279 also is no help to Centeno. In that case, the

defendant pled guilty to first degree burglary and admitted a prior conviction for

attempted robbery. After striking the prior serious felony conviction for purposes of the

"Three Strikes" law, the trial court denied the defendant's request that he be placed on

probation, stating: " 'The Court is of the opinion that upon conviction of a new felony []

the mandatory provisions of [section 667, subdivision (a)] attach and require the five year

sentence.' " (Id. at p. 282.) The court sentenced the defendant to the low term of two

years plus five years for the prior serious felony allegation. The defendant appealed,

                                              9
contending that contrary to the trial court's declared lack of discretion in imposing a

prison term, the court had discretion to consider the defendant's request for probation.

Our colleagues in Division Three agreed, and remanded the case for resentencing.

       "The grant or denial of probation is within the trial court's discretion and the

defendant bears a heavy burden when attempting to show an abuse of that discretion.

(People v. Marquez (1983) 143 Cal.App.3d 797, 803.) 'However, an erroneous

understanding by the trial court of its discretionary power is not a true exercise of

discretion.' (Ibid.)" (Aubrey, supra, 65 Cal.App.4th at p. 282.)

       " ' "[P]robation" means the suspension of the imposition or execution of a sentence

and the order of conditional and revocable release in the community under the

supervision of a probation officer.' (§ 1203, subd. (a).) All defendants are eligible for

probation, in the discretion of the sentencing court (People v. Phillips (1977)

76 Cal.App.3d 207, 213), unless a statute provides otherwise. Some statutes provide

ineligibility is mandatory, while others provide a defendant is ineligible except in unusual

cases where the interests of justice would best be served. (E.g., compare § 1203,

subd. (k) with § 1203, subd. (e).) Section 462, subdivision (a) contains a discretionary

prohibition against probation for defendants who are convicted of residential burglary:

'Except in unusual cases where the interests of justice would best be served if the person

is granted probation, probation shall not be granted to any person who is convicted of a

burglary of an inhabited dwelling house . . . .' " (Aubrey, supra, 65 Cal.App.4th at

p. 282.) The court in Aubrey concluded that "[s]ince [the defendant] pleaded guilty to

residential burglary, the sentencing court had discretion to grant probation, if it found this

                                             10
to be an unusual case, unless another statute precluded probation." (Ibid.) The court

rejected the Attorney General's argument that because the prior serious felony

enhancement carried a mandatory prison term, the court had no authority to grant

probation.

       Unlike the statute in Aubrey that included an "interests of justice" exception to

allow a court to grant probation, section 1203.06 does not contain any such allowance.

Instead, it expressly prohibits the court from granting probation to a defendant who

commits robbery while using a firearm. (§ 1203.06, subd. (a)(1)(B).) As such, the

instant action is distinguishable from Aubrey.

       Finally, we are not persuaded by Centeno's alternative argument that the trial court

had discretion to strike the robbery conviction, so it could grant probation. Centeno

claims the trial court could have struck the robbery conviction under section 1385 as

explained in People v. Orabuena (2004) 116 Cal.App.4th 84 (Orabuena).

       In Orabuena, the defendant pled guilty to three counts: possessing and being

under the influence of methamphetamine and driving with a suspended license.

(Orabuena, supra, 116 Cal.App.4th at p. 89.) The trial court found that his conviction on

the suspended license count made him ineligible for sentencing under Proposition 36's

alternative scheme. (Orabuena, at p. 91; § 1210.1, subd. (b).) Placed on formal probation

with a requirement that he serve 180 days in the county jail, he argued on appeal that the

trial court erred in failing to dismiss the suspended license count " 'in furtherance of

justice' " under section 1385. (Orabuena, at pp. 92-93.) The appellate court reversed,

holding that the disqualifying misdemeanor conviction "meets the definition of an 'action'

                                             11
under section 1385, in that it is part of the criminal action filed against defendant." (Id. at

p. 95.) The court further held that it saw "nothing in Proposition 36 or the statutes that

implement Proposition 36 that limits the court's power of dismissal under section 1385."

(Id. at p. 95.) It remanded the case to permit the trial court to exercise its discretion,

expressly limiting its opinion "to the conclusion that a trial court has the authority under

section 1385 to dismiss a misdemeanor [conviction] not related to the use of drugs that

would otherwise make a defendant ineligible for Proposition 36 treatment." (Id. at

p. 100.)

       Centeno urges us to follow Orabuena, supra, 116 Cal.App.4th 84, but, in doing so,

he glosses over the court's statement in that case that "[a] court should not interpret a

statute as eliminating the court's power under section 1385 absent a clear legislative

direction to that effect." (Id. at p. 95.) In the instant action, "a clear legislative direction"

is apparent. "Notwithstanding any other provision of law, probation shall not be granted

to, nor the execution or imposition of sentence be suspended for, nor shall a finding

bringing the defendant within this section be stricken pursuant to Section 1385 for" a

defendant who personally uses a firearm during the commission of a robbery.

(§ 1203.06, subd. (a)(1)(B).) Centeno committed robbery while personally using a

firearm. Through section 1203.06, the Legislature made clear that a trial court does not

have discretion to strike or dismiss a robbery offense, to grant probation, when the

defendant personally used a firearm to commit that crime. Centeno is such a defendant

and falls under section 1203.06. The trial court therefore did not abuse its discretion in

refusing to strike the robbery conviction under section 1385.

                                               12
                                  DISPOSITION



      The judgment is affirmed.



                                                HUFFMAN, Acting P. J.

WE CONCUR:




IRION, J.




GUERRERO, J.




                                      13
