People v. Lopez

Opinion

KINGSLEY, Acting P. J.

The People appeal from the sentence pronounced in a felony case. We affirm the judgment.

[164]

Defendant was charged with robbery, in violation of section 211 of the Penal Code. Two prior convictions for robbery were also alleged. Defendant pled nolo contendere to the robbery charge and admitted the two priors. He was sentenced to the upper term of five years on the robbery; the trial court stayed imposition of sentence on the two priors.

On this appeal, the People contend that imposition of sentence on the priors was mandatory. We disagree.

Section 667 of the Penal Code, added by the initiative measure known as Proposition 8, provides, in pertinent part, as follows: “Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively. ”

Robbery is a “serious felony” within the meaning of that section.

It cannot be contested that, by the use of the word “shall” the imposition of the enhancements herein involved is mandatory. On this appeal, defendant contends: (1) that the enhancements constitute “cruel and unusual” punishment and (2) that, in any event, the trial court has jurisdiction, in its discretion, either to strike, or to stay the execution of, the enhancements.

I

We conclude that the 2 five-year enhancements do not violate the constitutional provision against cruel and unusual punishments. The imposition of extended sentences for recidivists has been upheld by the United States Supreme Court where, as here, the defendant is eligible for parole.

(Rummel

v.

Estelle