People v. Villasenor

Opinion

GILBERT, J.

Here we hold that Penal Code section 667 is constitutionally valid.

Appellant Robert Villasenor appeals a judgment of conviction following his plea of nolo contendere to a charge of robbery, his admission to using a knife while committing the robbery, and his admission to having suffered a prior robbery conviction.

Villasenor’s sentence of nine years in state prison was based on three years on the middle base term for robbery, plus one year for an enhancement per Penal Code section 12022, subdivision (b), plus five years for the prior robbery conviction per Penal Code section 667.

1

His sole contention on appeal is that Penal Code section 667 is unconstitutional because it constitutes cruel and unusual punishment and violates due process of law.

[33]

In particular Villasenor argues that the statute is constitutionally defective because it does not recognize significant gradations of culpability and does not take into consideration mitigating factors.

(In re Grant

(1976) 18 Cal.3d 1, 11-13 [132 Cal.Rptr. 430, 553 P.2d 590];

In re Foss

(1974) 10 Cal.3d 910, 923 [112 Cal.Rptr. 649, 519 P.2d 1073].)

Although a defendant twice convicted for murder receives the same mandatory enhancement under the statute as a defendant twice convicted for selling narcotics to minors, this disparity is neither arbitrary nor oppressive. As the People correctly point out, the same enhancement time does not mean the same punishment time for defendants twice convicted for different offenses. The punishment imposed on the second time murderer, for example, is greater than the maximum punishment imposed for the second time seller of drugs to minors.

In re Grant, supra,

18 Cal.3d 1, cited by Villasenor, is inapposite to the case at bench. In the