Opinion
2d Crim. No. B226010
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. DINO DESHAWN PHILLIPS, Defendant and Appellant.
Edward J. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson , Supervising Deputy Attorney General, Robert David Breton, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. GA076137)
(Los Angeles County)
Dino Deshawn Phillips was convicted by jury of second degree robbery (Pen. Code, § 211.) The jury found true the special allegation that the victim was over 60 years of age. (§ 1203.09, subd. (f).) Appellant waived his right to a jury trial on his prior convictions and the court found that he had suffered two prior felony strike convictions (§ 667, subds. (b)-(i), 1170.2, subds. (a)), two prior serious felony convictions (§ 667, subd. (a)(1)) and had served one prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code.
The trial court denied appellant's motion to strike a prior felony strike conviction pursuant to People v. Superior Court (Romero)(1996) 13 Cal.4th 497, 504.) It sentenced him to a total aggregate term of 35 years to life in state prison. As to the robbery count, the court imposed 25 years to life, enhanced by an additional five years for each of appellant's prior convictions (§ 667, subd. (a)(1)) for an additional 10 years. The court imposed and stayed one year for appellant's prior prison term (§ 667.5, subd. (b)). He contends the trial court abused its discretion in denying his Romero motion. We disagree and affirm.
FACTS
Mildred Bennett, age 84, owned Burbank Steel Trading in Burbank, California, where she had worked for over 40 years. On March 6, 2009, she stopped at her bank en route to work. She deposited funds and cashed some checks. She placed the cash in her purse and got into her car, where she transferred $1,800 to a blue bank bag, and left the remainder of approximately $500 or $600 in her purse.
While driving away, Bennett was vaguely aware of a blue-gray car behind her. She parked at her place of business and got out of her car. Bennett placed a sun shield on the driver's side of the windshield and walked around and leaned into the passenger side, and did the same thing. She put the bank bag inside her jacket under her left arm.
As Bennett stepped out of her car, appellant appeared and began pulling on her purse, trying to remove it from her shoulder. She froze and would not release it. Appellant dragged Bennett about four feet down the sidewalk by her neck. He finally grabbed the purse and fled, but abruptly turned around, and began running in the opposite direction. During the struggle, the bank bag remained in Bennett's jacket under her arm.
An employee, Mari Yegoyan, was at her desk, and heard Bennett screaming, "Oh My God. My Purse. My Purse." Mari ran outside and saw appellant running away with Bennett's purse. He then turned around and Mari saw his face. He ran towards a car and got in the passenger side. Mari memorized the license plate: 6CBV201. Within moments, the police arrived. Bennett was so upset that she climbed the stairs to her office and "cried [her] heart out."
Police found the getaway car. Inside was a car rental agreement in the name of Cheryl Phillips and paperwork in appellant's name. Clothing found in the trunk matched the clothing that Bennett and Mari described appellant as wearing.
DISCUSSION
The jury rendered a verdict of second degree robbery and found true the special allegation that the victim was over 60 years of age. (§§ 211, 1203.09, subd. (f).) Appellant waived his right to a jury trial on the prior conviction allegations. The trial court found true the allegations that he had been convicted of robbery in 1999 and 2005.
Under the Three Strikes law, appellant faced a sentence of 25 years to life. He filed a Romero motion requesting the court to strike his 1999 conviction. Appellant admitted in his moving papers that he had "twice been convicted of taking a vehicle without the owner[']s consent; thrice of robbery; and once of driving with a suspended license." He asserted, however, that his convictions were remote and that his background, character and prospects placed him outside the spirit of the Three Strikes law.
Defense counsel indicated that, if the court struck a prior, appellant would be sentenced to 20 years. He reasoned that the length of the sentence would constitute adequate punishment for his offense because he was 30 years of age and, upon his release, would be close to 50. Counsel opined that appellant would no longer be a danger to the community at that age.
The trial court stated that it was aware that it had the power to strike under section 1385, subdivision (a), and enumerated certain factors it must consider to determine whether appellant fell outside the spirit of the Three Strikes law. The court indicated that it must first consider appellant's background. It noted that, beginning at age 15 in 1996, appellant was making his second appearance in juvenile court for the offense of robbery. The court stated, "and the only thing that I think is important about that particular appearance is what I think is likely was said to him as a juvenile at that time, and what was said to him was, 'Mr. Phillips, if you continue along these paths, if you continue on this path, you are going to find yourself in the adult court and in state prison.'" After the second offense, he was given suitable placement.
The court observed that appellant was an adult at the time he committed his next offense in 1998. He and two other individuals were at a park where the victim was playing with his two children. "The defendant made a decision along with his co-defendants to grab the victim, place a choke hold on him and rob him. [¶] And in that situation the defendant was later convicted and he stood in front of Judge Cheroske. And I know Judge Cheroske. I don't know what happened at the sentencing but I can only imagine at that point the judge told him, 'You know what? I am going to give you a break.' And sentenced him to the low term which was two years, and I am sure advised him [that] if he continues along this path he is going to find himself in state prison for a long time."
Appellant was released in 2004. In 2005, at age 25, he and a co-defendant entered a pharmacy. The court recited that "[appellant] walked in with a sawed-off shotgun, jumped over the counter and ordered everyone to the floor. No one was shot, no one was killed, but the victims were robbed. And again, the defendant was convicted of that and stood in front of . . . Judge Alarcon, and again the judge told him--and I don't know the wording, I can just look at the sentence itself, and the judge gave him a break. Gave him the low term on it which is two years." Appellant was released from custody in 2007 and placed on parole. Within the next two years he violated parole five times by driving on a suspended license.
Turning to the present offense, the court observed that, in March 2009, appellant followed the victim to her place of employment to rob her. He grabbed her out of her car, dragged her down the street and stole her purse. She was in her eighties. The court noted that appellant has prior serious or violent felony convictions that have escalated in violence. His most recent offense occurred within the last four years and involved the use of a weapon, demonstrating a pattern of increasing severity. The court determined that appellant did not fall outside the spirit of the Three Strikes law, based upon his background, his current offense, and the prospect of future criminal activity. The Romero motion was denied.
Appellant argues that the trial court abused its discretion by speculating as to why he had received the low term on his 1999 and 2005 convictions, and by making reference to his acquaintance with Judge Cheroske. Appellant asserts that the court's statements reflect that it considered impermissible factors outside the record, thus the sentence must be vacated and remanded for reconsideration of his motion.
A trial court has the discretion to strike a prior serious felony conviction for purposes of sentencing only if the defendant falls outside the spirit of the Three Strikes law. (§ 1385; People v. Williams (1998) 17 Cal.4th 148, 161; People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) In deciding whether to exercise its discretion in this regard, the court "must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, at p. 161.)
"[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]." (People v. Carmony (2004) 33 Cal.4th 367, 378.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 377.)
The record reflects that the trial court was of aware of its sentencing discretion under section 1385. It considered that appellant's crimes were of increasing seriousness and his 2005 conviction involved gun use. Despite having twice been given lenient prison sentences, appellant chose to continue his criminal activity. The court's speculation as to what was said to appellant at his previous sentencing hearings was just that--speculation. It did not constitute factors upon which the court based its decision. Reference to the court's acquaintance with Judge Cheroske was not improper. Appellant has not shown that the court abused its discretion in denying his Romero motion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
YEGAN, Acting P.J.
PERREN, J.
Michael D. Carter, Judge
Superior Court County of Los Angeles
Edward J. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson , Supervising Deputy Attorney General, Robert David Breton, Deputy Attorney General, for Plaintiff and Respondent.