Main

Part I

The 18-year-old defendant, Bobby Duane Main, pled guilty to one count of robbery (Pen. Code, § 211) and firearm use (Pen. Code, § 12022.5). *690 Two other counts of robbery and one count of unlawful taking of a motor vehicle were dismissed. He was denied probation and sentenced to state prison for the middle term of three years. The court, finding facts in mitigation, struck the punishment for the use allegation.

Since 1975 Penal Code section 1203.06 has precluded probation for any person who personally uses a firearm in the commission of certain specifically listed crimes. Robbery is one of the enumerated crimes.

Welfare and Institutions Code section 1732.5 was enacted as part of Proposition 8 on June 8, 1982. That section provides that no person convicted of “murder, rape or any other serious felony, as defined in Section 1192.7 of the Penal Code, committed when he or she was 18 years of age or older shall be committed to Youth Authority.” Robbery and the commission of a felony with a firearm are both serious felonies listed in Penal Code section 1192.7.

Thus, appellant was neither eligible for a California Youth Authority (CYA) commitment nor for probation.…

[Opinion certified for partial publication. [*] ]

OPINION

BROWN (G.A.), P.J. —

The 18-year-old defendant, Bobby Duane Main, pled guilty to one count of robbery (Pen. Code, § 211) and firearm use (Pen. Code, § 12022.5). Two other counts of robbery and one count of unlawful taking of a motor vehicle were dismissed. He was denied probation and sentenced to state prison for the middle term of three years. The court, finding facts in mitigation, struck the punishment for the use allegation.

Since 1975 Penal Code section 1203.06 has precluded probation for any person who personally uses a firearm in the commission of certain specifically listed crimes. Robbery is one of the enumerated crimes.

Welfare and Institutions Code section 1732.5 was enacted as part of Proposition 8 on June 8, 1982. That section provides that no person convicted of "murder, rape or any other serious felony, as defined in Section 1192.7 of the Penal Code, committed when he or she was 18 years of age or older shall be committed to Youth Authority." Robbery and the commission of a felony with a firearm are both serious felonies listed in Penal Code section 1192.7.

Thus, appellant was neither eligible for a…

*698 Part I

I concur in the majority’s learned analysis on the issue of cruel or unusual punishment.

Part II *

A petition for a rehearing was denied March 29, 1984, and appellant’s petition for a hearing by the Supreme Court was denied May 24, 1984.

See footnote, ante, page 686.