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People v. Willingham6/18/2002
an inference of disproportionality.
In Harmelin, the majority upheld a sentence of life without the possibility of parole for possession of 672 grams of cocaine which was the defendant's first and only felony conviction. (Harmelin, supra, 501 U.S. at pp. 964-965.) Of course, Harmelin did not involve a recidivist statute, so it would be futile to attempt to compare it to the instant case. Defendant's lengthy criminal history here is different both in kind and degree than the single possession offense at issue in Harmelin. (See People v. Ingram (1995) 40 Cal.App.4th 1397, 1416, disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8.)
We conclude that, on these facts, a three strikes sentence of 50 years to life is not so disproportionate "`as to shock the conscience and offend fundamental notions of human dignity.' [Citation.]" (People v. Cline, supra, 60 Cal.App.4th at p. 1338, quoting In re DeBeque (1989) 212 Cal.App.3d 241, 249.) For each of the noted reasons we reject defendant's contention that his sentence constitutes cruel and unusual punishment under both the federal and state Constitutions.
C. Striking of the Five-Year Enhancements
The People contend that the trial court erred in not imposing a five-year enhancement for defendant's 1986 bank robbery convictions arising from a single proceeding. We agree.
Section 667, subdivision (a), requires the court to impose on any person convicted of a serious felony a five-year enhancement for each prior conviction of a serious felony on charges "brought and tried separately." (See also People v. Dotson, supra, 16 Cal.4th at pp. 553-554.) Robbery is a serious felony. (Pen. Code, § 1192.7, subd. (c)(19).) Imposition of a five-year enhancement required by section 667, subdivision (a) is mandatory, even though the defendant is also sentenced under the three strikes law. (People v. Ayon, supra, 46 Cal.App.4th at p. 395; People v. Purata (1996) 42 Cal.App.4th 489, 498.) Because the court's failure to impose the required enhancement results in an unauthorized sentence, the People can raise the error on the defendant's appeal without the People appealing from the judgment. (Ayon, supra, at p. 395, fn. 7; Purata, supra, at p. 498.)
In this case, defendant's two prior serious felony allegations were found true. However, because the two allegations were based on two federal bank robberies which arose from a single proceeding, only one five-year enhancement may be imposed. Accordingly, defendant's sentence must be corrected to include the five-year enhancement the court failed to impose.
III.
DISPOSITION
The judgment is modified to impose a five-year consecutive term for defendant's prior serious felony convictions under section 667, subdivision (a). The trial court is directed to prepare a modified abstract of judgment reflecting this modification in the sentence and forward it to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur:
McKINSTER Acting P.J.
WARD J.
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