P. v.
Filed 7/10/12 P. v. Shelton CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
BUD SHELTON,
Defendant and Appellant.
D060162
(Super. Ct.
No. SCE300054)
APPEAL from
a judgment of the Superior Court
of
County, Peter C. Deddeh, Judge. Affirmed.
Bud Shelton
appeals the judgment sentencing him to prison for 11 years four months after he
pleaded guilty to attempted robbery
(Pen. Code, §§ 211, 664; undesignated section reference are to this code)
and admitted he personally used a firearm in the offense (§ 12022.53,
subd. (b)). Shelton
contends imposition of the 10‑year enhancement under section 12022.53,
subdivision (b) violated his federal constitutional
cases rejecting such contentions and affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
Shelton
admitted he attempted to rob a convenience store with an unloaded rifle. He pleaded guilty to
assault with a firearm (§ 245,
subd. (a)(2)). In connection with
the attempted robbery charge, Shelton
admitted he personally used a firearm.
(§§ 12022.5, subd. (a), 12022.53, subd. (b).) In connection with the assault with a firearm
charge, he admitted he personally used a deadly weapon and a firearm. (§§ 1192.7, subd. (c)(23), 12022.5,
subd. (a).)
At the
sentencing hearing, Shelton urged
the court not to impose the section 12022.53 enhancement.
would violate his right to the equal protection of the laws because a defendant
who attempts robbery with a fake firearm is not subject to the enhancement, and
his unloaded rifle was tantamount to a fake firearm. Shelton
also argued section 12022.53 is irrational and violates public policy by
encouraging criminals to use loaded rather than unloaded firearms: "The message of this law, unfortunately
and inadvertently, is that if you use a gun, you're going to go to prison. However, if you are going to use a gun, be
sure to put a bullet in the chamber, because there's no reason not to. There's no reason to go in with an unloaded
gun because you're going to get the 10 years no matter what."
The trial
court rejected these contentions. It
sentenced Shelton to prison for 16
months for the attempted robbery (§§ 18, subd. (a), 213,
subd. (b)) and added a consecutive term of 10 years for the firearm
enhancement (§ 12022.53, subd. (b)).
The court also imposed but stayed execution of prison terms for the
assault with a firearm conviction and all the other enhancements. (§ 654.)
Shelton
obtained a certificate of probable cause
and filed this appeal. (§ 1237.5.)
DISCUSSION
In
challenging the trial court's imposition of the 10-year enhancement under
section 12022.53, Shelton raises a
single issue on appeal: "whether
there is or is not a rational basis for the dissimilar treatment of unloaded
guns and fake or replica guns." He
contends that because neither a fake firearm nor an unloaded firearm can fire a
projectile, imposing the enhancement on a person who attempts robbery with an
unloaded firearm but not punishing a person who attempts robbery with a fake
firearm raises "both equal protection and due process concerns under the
Fourteenth Amendment." We disagree.
The
constitutional provisions on which Shelton
relies prohibit a state from "depriv[ing] any person of life, liberty, or
property, without due process of law," and from "deny[ing] to any
person within its jurisdiction the equal protection of the laws." (U.S.
Const., 14th Amend., § 1.) The
equal protection clause "is essentially a direction that all persons
similarly situated should be treated alike." (Cleburne
v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439; accord,
314, 328.) "[I]f a law neither
burdens a fundamental right nor targets a suspect class, we will uphold the
legislative classification so long as it bears a rational relation to some
legitimate end." (
631.) Similarly, a statute that does not
burden a fundamental right will be upheld against a due process challenge as
long as the statutory classification rests upon a rational basis. (Bowen
v. Gilliard (1987) 483 U.S. 587, 603.)
Claims of sentencing disparity are evaluated under the rational basis
test. (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1386;
1110, 1116 (Alvarez).)
Enhancing
the sentences of defendants who use real but unloaded firearms to commit crimes
under section 12022.53 but not those of defendants who use fake firearms to
commit the same crimes easily passes the rational basis test. The Legislature's stated intent in enacting
section 12022.53 is to impose "substantially longer prison sentences
. . . on felons who use firearms in the commission of their crimes,
in order to protect our citizens and to deter violent crime." (Stats. 1997, ch. 503,
§ 1.) The potential for injury to
citizens or for a crime to turn violent is obviously much greater if a criminal
uses a real but unloaded firearm than if he uses a fake firearm. The Legislature rationally could conclude a
real firearm (even if unloaded) is more likely than a fake firearm to frighten
a victim and thereby "give[] a perpetrator a strong advantage over the
victim and effectively deter[] the victim's escape." (People
v. Zepeda (2001) 87 Cal.App.4th 1183, 1215.) The Legislature also rationally could
conclude that real "firearms pose a potentially greater risk to safety
than other weapons because of their inherent ability to harm a greater number
of victims more rapidly." (
675, 678 (Perez).) Unlike a fake firearm, an unloaded real
firearm may be loaded, thereby becoming "particularly lethal to the victim
of the underlying crime as well as others in the vicinity" and
"allow[ing] the perpetrator to effortlessly and instantaneously execute an
intent to kill once it is formed."
(Zepeda, at p. 1215
In other words, "[t]he ease with which a victim of one of the
enumerated felonies [in section 12022.53] could be killed or injured if a
firearm is involved clearly supports a legislative distinction treating firearm
offenses more harshly than the same crimes committed by other means, in order
to deter the use of firearms and save lives." (People
v. Martinez (1999) 76 Cal.App.4th 489, 497-498; accord,
p. 1118.) Hence, imposing a section
12022.53 enhancement on a felon who uses a real but unloaded firearm but not on
a felon who uses a fake firearm "is rationally related to the intent
offered by the Legislature and supports legitimate state interests of citizen
safety and deterrence of violent crime."
(Perez, at p. 680;
accord, People v. Taylor (2001) 93
Cal.App.4th 318, 322 (Taylor).)
We are not
persuaded to reach a different conclusion by the three cases cited by Shelton
drawing a distinction between loaded and unloaded firearms. Two federal cases held the greater punishment
for a criminal who uses a gun and "assaults any person or puts in jeopardy
the life of any person by the use of a dangerous weapon or device" during
a bank robbery (18 U.S.C.
§ 2113(d)) required proof the gun was loaded. (United
States v. Jones (9th Cir. 1975) 512 F.2d 347, 351-352; United States v. Potts (N.D.Cal. 1982) 548 F.Supp. 1239,
1242.) Those holdings required
interpretation of the words "assault," "puts in jeopardy"
and "dangerous weapon" in the context of the entire statute. (Potts,
at pp. 1240-1241.) In
1297, 1307, also cited by Shelton, the court held an unloaded firearm not used
as a bludgeon was not a "deadly weapon" within the meaning of section
667.7. Unlike the statutes considered in
the cases Shelton relies on, section 12022.53 presents no issue of statutory
interpretation. Rather, it expressly
provides: "The firearm need not be operable or loaded for this enhancement to apply." (§ 12022.53, subd. (b), italics
added.)
We also
decline Shelton's invitation to create what he calls "a due process
exception" to the enhancement prescribed by section 12022.53,
subdivision (b) for cases in which "the defense has convincingly
demonstrated that the firearm was not loaded." According to Shelton:
"The message of the current statute,
if read without a public policy exception, is that you might as well load a
firearm you plan to use in a robbery because you will be treated the same
whether the firearm is loaded or unloaded.
And this raises a serious public policy concern because it encourages
people to load firearms even if they might otherwise be predisposed to not load
the firearm in order to lessen the danger of someone being hurt during the
robbery."
Shelton has cited no evidence to support this argument; and
we doubt armed robbers make the decision whether to load their firearms based
on the punishment they may receive under section 12022.53, as Shelton's
argument assumes they do. To the extent
armed robbers do consider such punishment when deciding whether to load their
firearms, section 12022.53 may already encourage them not to load them because
use of an unloaded firearm results in an enhancement of only 10 years (
loaded firearm may result in an enhancement of 20 years if the firearm is discharged
(id., subd. (c)) or 25 years to
life if it is discharged and causes death or great bodily injury (
should be addressed to the Legislature, not to us, for it is the prerogative of
the Legislature, within constitutional limits not exceeded here, to prescribe
the punishments for crimes. (See, e.g.,
821, 840; People v. Tanner (1935) 3
Cal.2d 279, 298; Perez,
pp. 679-680.)
In sum, consistent
with other California courts that have rejected similar equal protection and
12022.53, we reject Shelton's challenges.
(See People v. Hernandez (2005)
134 Cal.App.4th 474, 480-483; Taylor,
supra, 93 Cal.App.4th at p. 322; Alvarez,
supra, 88 Cal.App.4th at
pp. 1116-1119; Perez,
pp. 678-680.)
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
AARON,
J.
name="_ftn1" title="">[1] Section 12022.53 provides that a
person who "personally uses a firearm" in the commission of specified
felonies (including attempted robbery) "shall be punished by an additional
and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded
for this enhancement to apply."
(§ 12022.53, subds. (a)(4), (18), (b).)
