(Super. Ct. No. 07F05487)
The opinion of the court was delivered by: Hull ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Lawrence Udukobraye Pela of 11 counts of robbery and found he personally used a firearm during the commission of each of those offenses. (Pen. Code, §§ 211, 12022.53, subd. (b).) The trial court sentenced defendant to a total of 46 years 8 months in state prison. Defendant timely filed this appeal.
On appeal, defendant contends his sentence constitutes cruel and unusual punishment. He concedes the length of his sentence is not of itself unduly harsh, but contends that because he has a mental illness, and because the California prison system has endemic problems providing adequate mental health care to inmates, his sentence will result in inhumane treatment. We reject this contention. Defendant also contends, and the Attorney General concedes, that two restitution fines are excessive. We accept the concession, modify the restitution fines and affirm the judgment as modified.
Defendant robbed 11 victims in nine separate incidents from March through May 2007. Each time he would enter a store wearing a mask or bandanna, display a firearm and demand money, and in one case he also took an Xbox and video games. He was captured when the last victim placed a tracking device with the store's money, and defendant was arrested in possession of a mask and a loaded firearm.
The probation report states defendant was born in 1981, and is "reported to be in good physical health and free of any psychological disorders."
A defense sentencing memorandum claimed defendant had a "mood disorder" that led to "cycles of depression and manic behavior" that had not been managed. A court-ordered psychiatric evaluation by Dr. Charles Schaffer found defendant had "bipolar disorder and polysubstance abuse." Based on federal court findings of defects in the prison system's treatment of mentally ill inmates, and the establishment of a receivership to take over prison medical care, the defense argued any sentence beyond the legal minimum of 12 years would be excessive.
Attached to the defense memorandum was a report by a criminologist and a social worker, summarizing defendant's background. In part it concluded that although he showed no signs of mental health problems as a child or teenager, despite purportedly adverse family circumstances, his change from an honest, upstanding churchgoer into a robber was largely caused by an organic bipolar disorder. His grandmother's death "triggered a 'kindling' event in the brain" that made him susceptible to "a debilitating mood disorder" and "Without help or insight into his mood disorder, [defendant] became engulfed in cycles of depression and manic behavior that led to withdrawal and hopelessness on the one hand, and impulsive and reckless behavior on the other."
Dr. Schaffer's prior psychiatric evaluation reflects that defendant told Dr. Schaffer he spent the money from the robberies on drugs and alcohol, and that he had never been diagnosed with any psychiatric disorder. However, in 2006 he began "experiencing some mood symptoms" including depressive symptoms and hypomanic symptoms. Before his arrest he had worked as a machinist.
Dr. Schaffer's examination revealed defendant "was mildly depressed" and claimed to hear voices of his parents arguing, although he conceded he knew these voices were not real. "There was no obvious evidence of cognitive deficits suggestive of an organic mental disorder." Defendant said he committed the robberies because "he was feeling discouraged about his life at the time. He saw himself as going nowhere at age 26. He did not feel positive about his current career. He needed a release. His substance abuse may have contributed to these robberies because they tended to occur occasionally when he was drinking or using drugs and was dissatisfied with his life situation." Dr. Schaffer concluded defendant's bipolar disorder was evidenced by "depressed mood, sleep disturbance, social withdrawal, impaired memory, hopeless feelings, low self-esteem, anxiety, irritability, occasional excessive energy, occasional increased psychomotor activity, rapid thoughts, and rumination." It could be treated by medication and psychotherapy, and his substance abuse could be addressed by support groups or individual therapy, as an outpatient or an inpatient.
The People sought a 52-year sentence, in part arguing "Even though the defense provides reports that the defendant was suffering from bipolar and polysubstance abuse, these conditions do not ...