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People v. Dorsey

Court of Appeal of California
Sep 5, 2008
D051394 (Cal. Ct. App. Sep. 5, 2008)

Opinion

D051394

9-5-2008

THE PEOPLE, Plaintiff and Respondent, v. PHILLIP LYNN DORSEY, Defendant and Appellant.

Not to be Published


A jury convicted Phillip Lynn Dorsey of residential burglary (Pen. Code, §§ 459 & 460) and unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a)) and found the firearm allegation related to each count to be true (§§ 12022.5, subd. (a), 1192.7, subd. (c)(23)). The jury was unable to reach a verdict on two remaining counts. The court declared a mistrial on the remaining counts.

Prior to the retrial on the remaining counts Dorsey entered into a plea agreement in which he pled guilty to robbery (§§ 211, 212.5, subd. (a)). The parties stipulated to an upper term sentence for the robbery count with an indication by the court that the sentence imposed for all of Dorseys convictions would include a four-year midterm for the firearm allegation. The remaining counts and allegations were dismissed.

Ultimately, the court sentenced Dorsey to a determinate term of 13 years.

Dorsey appeals challenging only his convictions for residential burglary and unlawful taking and driving of a vehicle. As to those convictions he contends the trial court erred in excluding the proposed testimony of a defense witness. The Attorney General has responded asking that the appeal be dismissed for failure by Dorsey to obtain a certificate of probable cause (§ 1237.5). We will reject the Attorney Generals contention that this appeal requires a certificate of probable cause. We will also find the trial court did not abuse its discretion in excluding the testimony of a proposed defense witness under Evidence Code section 352. We will affirm the judgment.

STATEMENT OF FACTS

Given the narrow scope of the issues on this appeal we will set forth a brief statement of facts in order to provide a context for the examination of those issues.

In the morning of October 11, 2006, Dorsey was released from Donovan State Prison where he had been incarcerated for a parole violation. Dorsey made his way to the Spring Valley area of San Diego County and a halfway house on St. George Street where he had previously stayed. On his way to the halfway house Dorsey consumed a quantity of alcohol.

After some further travels and drinking, Dorsey arrived at the halfway house where he passed out on the couch. He was awakened by Laurie Ellertson, who resided there. Dorsey then left the residence.

At around 4:00 p.m. that day, Veronica Gallagher, her son and her mother, Darelynn Clay returned to their residence next door to the halfway house on St. George Street. Gallaghers husband, Isaac Myers had lived there previously, but the couple had separated and they were in the process of a divorce and Myers was in jail at that time. When Gallagher and Clay arrived at their house they found the door open. Dorsey walked out of the house and pointed a rifle at the women. He ordered them to go inside the house and sit down. When they got inside the house they found it had been ransacked. The gun safe was lying on the living room floor and had been pried open. Dorsey told the women that two Mexicans had ransacked the house because Gallaghers husband owed them money. Dorsey identified one of the men as "Carlos." Dorsey said he also owed Carlos money therefore Dorsey was going to take the guns from the house and give them to the people to whom he owed money. Dorsey also said he needed a car and that he would come back later and return the car and any left over money after Carlos was paid. Dorsey pointed the rifle at the women during his conversation with them. Dorsey took the guns with him and left in Clays Mustang.

Gallagher called the Sheriffs Office and reported the incident. A deputy sheriff arrived and Gallagher reported what had taken place. After the deputy left, Gallagher discovered a pair of mens shorts which contained Dorseys wallet, prison identification and cash and jewelry, which had been taken from Clays room.

At 9:30 p.m. Dorsey was stopped by U.S. Border Patrol Agent Engelhorn while Dorsey was driving Clays Mustang. Sheriffs deputies were called and Dorsey was arrested. There were no guns in the Mustang at the time of Dorseys arrest.

Defense

Dorsey testified that after he left the halfway house on October 11, 2006, he walked across the street where a garage sale was in progress. Dorsey noticed a truck outside Gallaghers house and wondered if Isaac Myers had acquired a new truck. He decided to walk to the house to inquire about the truck. When he arrived he found the door open and the house "trashed." He found two men inside the house, a drug dealer named Carlos Sanchez and a man named Gustavo. They told him that Myers owed Carlos money. Dorsey told the men to leave, and they did.

When Gallagher and Clay arrived at the house Dorsey told them what happened. Gallagher asked Dorsey to find out how much Myers owed and what the men would take to resolve the debt. Gallagher allowed Dorsey to take Clays car. Dorsey denied pointing a gun at anyone that day.

Dorsey spent the afternoon looking for Carlos. He was able to contact Carlos by phone and meet with him in person at a gas station in Lemon Grove. Carlos declined to accept guns for the debt and wanted $1,200. Dorsey said he called Gallagher about the conversation and told her he would return the car after he dropped someone off. He was stopped and arrested before he could return the car.

Ms. Ellertson testified that prior to October 11, 2006, Gallagher said that she had removed the guns from the house out of concern for the safety of children.

DISCUSSION

Prior to the start of the defense case Dorsey requested the court to order the production of a jail inmate, John Croce. Defense counsel made an offer of proof that Croce would testify he was acquainted with Isaac Myers and that at some time in the past, Croce had seen Myers meet with someone named Carlos, who Croce believed was a drug dealer. We will set forth more details of the offer of proof in the discussion which follows. The trial court, relying on Evidence Code section 352, declined to order production of Croce. Dorsey contends the court erred in excluding Croce as a witness because his testimony would have corroborated an important part of his testimony. The Attorney General responds that the appeal should be barred for failure to obtain a certificate of probable cause or in the alternative, there was no abuse of discretion. We find a certificate of probable cause was not required under these facts and decline to dismiss the appeal. We also find no abuse of discretion in declining to order the production of Croce as a witness.

A. A certificate of probable cause was not required in this case.

Although the appeal in this case arises from two convictions after a jury trial, the Attorney General contends the subsequent plea bargain in which Dorsey pled guilty to the robbery count on which the jury could not reach a verdict resulted in a bargained-for sentence, which cannot be challenged without a certificate of probable cause.

Where a plea agreement encompasses both the charges and an agreed upon sentence, a defendant may not challenge part of the agreement without first obtaining a certificate of probable cause. (§ 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 75-76 (Panizzon).) Generally, a defendant cannot take the benefit of a plea bargain and still challenge parts of the bargain. (People v. Hester (2000) 22 Cal.4th 290, 295.) The type of case which falls within the limitations set forth in Panizzon involves not only an agreement to the offenses to which the defendant will plead, but also an agreement as to the sentence to be imposed, such that both the convictions and the sentence imposed are part of an inseparable agreement. In such circumstance, a challenge to the sentence becomes a challenge to the plea of guilty, which cannot be done without first obtaining a certificate of probable cause. This case does not fall within the scope of the Panizzon-type cases.

In this appeal, the first major distinction from Panizzon, supra, 13 Cal.4th 68, is the convictions challenged do not arise from a guilty plea. They arise from jury verdicts, to which section 1237.5 has no application. Nevertheless, the Attorney General argues we should apply the restrictions of Panizzon because the sentence for those counts arises from a plea agreement and a stipulated sentence. Without addressing the legal soundness of that argument, we dismiss it as factually inaccurate.

The plea agreement, which resolved the counts remaining after trial, did not involve a stipulated sentence on either the burglary or the unlawful taking and driving of a vehicle convictions. The stipulation was with regard to the sentence on the robbery count. The trial court gave indications of the probable sentence on the sum of the convictions, but there was no agreement between the parties that any given sentence would be imposed, other than for the robbery, which is not challenged on this appeal. The maximum potential sentence Dorsey faced after the plea and the jury convictions was over 21 years. The 13-year sentence imposed was the result of the plea and stipulated sentence for robbery, plus the terms the trial court imposed within its discretion on the convictions, which resulted from the jury trial. On these facts the rule set forth in Panizzon, supra, 13 Cal.4th 68, is inapplicable and no certificate of probable cause was required for the current appeal.

B. The trial court did not abuse its discretion in excluding the testimony of John Croce.

A defendant in a criminal case has a constitutional right to present a defense. Improper exclusion of relevant and probative defense evidence may deny a defendant the right to a fair trial. (Chambers v. Mississippi (1973) 410 U.S. 284, 302-303.) That does not mean, however, that trial courts are without authority to apply the evidence laws of the state to limit the admission of evidence that is not relevant or which, though marginally relevant, is confusing or misleading. (Evid. Code, § 352.) Trial courts have broad discretion to admit or exclude evidence based on an assessment of its probative value as opposed to its prejudicial effect or its potential to confuse or mislead the jury. (People v. Lucas (1995) 12 Cal.4th 415, 448.) We review the evidentiary rulings of the trial courts under the abuse of discretion standard. (People v. Memro (1995) 11 Cal.4th 786, 828.)

In order to determine if the trial court abused its discretion we look to the offer of proof made in the trial court. The offer of proof and the courts response in part were:

"Mr. Sheela [defense counsel]:

***

"My offer of proof as to John Croce is that he will testify that he lived in the house next door, both before and after Isaac Myers moved in; that Isaac Myers stayed in the house next door. But while Isaac Myers stayed in the house next door, that Isaac Myers met with Carlos, who appeared to be, to Mr. Croce, some — he described him as a kind of — he said `gangster like, were his words.

"He said that after Isaac Myers would meet with Carlos, that after those meetings, Isaac would have quantities of methamphetamine. John said that he didnt want to be part of what Isaac and Carlos were talking about, so he kind of would make himself scarce, so he wouldnt be there when they were talking about stuff. But he can put Isaac in possession of methamphetamine after Isaac meets with Carlos.

"The Prosecution, I think, is going to argue in the case that Carlos is a fiction, theres no Carlos in existence. This enables me to prove that Carlos does exist, and that Carlos met with Isaac, which corroborates what Mr. Dorsey will testify to.

"The Court: What difference does it make what happened with Isaac on a date other than the 11th of October?

"Mr. Sheela: It lends credence to Mr. Dorseys statement to the police and what he will testify to, that Carlos and Gustavo were ransacking the house and told him that Isaac owed a debt for drugs to Carlos.

"The Court: Thats doesnt corroborate anything. All it — I mean, we can say that if you were one of Isaacs friends, if you were at Isaacs house at some time beforehand, what does that have to do with what happened on the 11th of October?

"The fact that there is a Carlos or that this Croce person knows there is a Carlos and that there is a Carlos that might know a Mr. Myers says nothing about what Carlos was there for on the 11th of October, says nothing about the fact that Carlos was there on the 11th of October, unless Mr. Croce was a resident of the next door house on that date and knows that Carlos was there. I dont see how its relevant."

Dorsey testified he did not commit any crimes at the Gallagher house, but had interrupted a burglary by Carlos Sanchez and his companion Gustavo. Dorsey explained he was using the Mustang with permission to track down Carlos and Gustavo on Gallaghers behalf in order to negotiate a settlement of some alleged debt owed by Gallaghers estranged husband. Croces testimony was offered to corroborate Dorsey by showing there was indeed a drug dealer named Carlos who had dealings with Isaac Myers.

While the proffered testimony purported to connect Myers and "Carlos," its actual relevance was marginal and it was likely misleading.

No foundation was offered for Croces knowledge of "Carlos," whether Carlos was a drug dealer or that he had any dealings with Myers that might be related to this case. In fact there was no indication that the Carlos known to Croce was the same person as the Carlos Dorsey claimed he encountered in the Gallagher house. In fact, a careful reading of the offer of proof reveals the doubtful relevance of the proposed testimony. Reduced to its basic elements, Croce would have testified that at some undesignated time in the past he was acquainted with Myers. At some point he observed Myers meet with someone Croce thought was named Carlos and that Carlos looked like a "gangster." Croce did not participate in any discussions with Carlos but thought him to be a drug dealer. Croce was not present for nor did he observe any "drug transactions," but he was prepared to testify that at some point after the meetings between Myers and "Carlos," Myers had methamphetamine.

As we have noted there was no indication when Croce saw whatever he observed between Myers and "Carlos" and, in fact, Croce denied being present for any of those discussions. Most importantly, there was no offer of proof that the "Carlos" known to Croce was the same person as the "Carlos" Dorsey claimed to have found in Gallaghers house.

The jury would have been left to speculate about the possible connection between Croces observations at some undesignated time in the past and Dorseys version of the events of October 11, 2006. When the trial court denied the request to order the production of Croce in open court it left open the question of whether Dorsey might want the court to revisit the issue at a later time. Dorsey never offered any further information to the court that might have provided some facts from which the jury could infer that the elusive Carlos in Croces proposed testimony was the same person described by Dorsey. Dorsey testified he knew Carlos and had talked to him in person on October 11, 2006, both at the Gallagher house and later at a gas station. Surely Dorsey had information that could have aided the court in evaluating the possible connection of Croces testimony to his own version of the events. That information was not presented to the trial court and thus we cannot say the trial court abused its discretion in excluding the speculative and potentially misleading testimony described by defense counsel.

DISPOSITION

The judgment is affirmed.

We concur:

McDONALD, J.

IRION, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise specified.


Summaries of

People v. Dorsey

Court of Appeal of California
Sep 5, 2008
D051394 (Cal. Ct. App. Sep. 5, 2008)
Case details for

People v. Dorsey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PHILLIP LYNN DORSEY, Defendant…

Court:Court of Appeal of California

Date published: Sep 5, 2008

Citations

D051394 (Cal. Ct. App. Sep. 5, 2008)