Opinion
E052789 Super.Ct.No. FMB900528
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. ROLAND THOMAS PHILLIPS, Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
On December 14, 2009, an information charged defendant and appellant Roland Thomas Phillips (defendant) with receiving stolen property, a motor vehicle, under Penal Code section 496d, subdivision (a) (count 1), and unlawful driving or taking of a vehicle with a prior offense under section 666.5, subdivision (a) (count 2). The information also alleged seven prior conviction allegations under section 667.5, subdivision (b).
All statutory references are to the Penal Code unless otherwise specified.
On January 13, 2010, the trial court declared doubt as to defendant's mental state and appointed a psychiatrist to examine him under section 1368; the court also suspended criminal proceedings pending the psychiatric examination.
Dr. Feldsher prepared a report, which the parties stipulated could be considered in lieu of testimony. On February 19, 2010, after reviewing the report, the trial court found defendant to be competent and reinstated the criminal proceedings against defendant. The court also referred defendant to drug court. Defendant waived credits under section 4019 as a condition for participating in drug court. In connection with the referral to drug court, defendant signed a plea agreement that same day. The plea, however, was not changed until a hearing on February 23, 2010. At that time, defendant pled guilty to both counts and admitted six priors under section 667.5. Defendant was to remain in custody until a space in the drug program was available.
On March 4, 2010, defendant was released to complete a Salvation Army drug program. Defendant completed the program. However, he failed to appear at a court date after testing "dirty" on September 20, 2010. Defendant was re-arrested.
On December 7, 2010, defense counsel requested that the court follow the probation department's recommendation of additional time with the drug court program, instead of imposing a prison sentence. The court declined. It sentenced defendant to the aggravated term of four years for count 2, vehicle theft with a prior, and one-third the midterm of eight months on count 1, receiving stolen property, stayed under section 654. The court also imposed one year for each of the six priors, for a total sentence of 10 years. The trial court calculated defendant's credits as 308 actual days, with no conduct credits. The court ordered restitution in the amount of $2,143.89, and imposed a $200 section 1202.4 restitution fine, as well as a section 1202.45 fine, stayed pending successful completion of parole.
On January 24, 2011, defendant filed a timely notice of appeal.
STATEMENT OF FACTS
The parties stipulated the facts from the preliminary hearing formed the factual basis for the plea.
1.
PROSECUTION CASE
About 11:16 p.m. on November 23, 2009, Deputy Scott Leach of the San Benardino County Sheriff's Department drove up to the Circle K on Adobe Road in Twentynine Palms. The deputy noticed a small Toyota truck stopped next to a gas pump, with its engine running. He checked the license number of the truck and learned that it was a potentially stolen vehicle. The deputy parked off to the side and walked back to the car, noting a partial VIN number, which also matched the VIN of the stolen truck. The deputy saw wires hanging down from the steering column, which appeared to have been damaged.
The deputy entered the Circle K and noticed the clerk and one customer. The deputy asked if the truck belonged to the customer; the customer did not answer. The customer, who was later identified as defendant, said he did not know anything about the truck. The clerk indicated that there were no other customers in the store. The deputy, therefore, asked defendant for his identification. Defendant did not give the deputy his identification at first, but eventually produced a California identification card. The deputy detained defendant, placing him in the patrol car. Security footage showed defendant driving up to the Circle K, exiting the truck, and entering the store. The deputy contacted the truck's registered owner. The owner identified it and confirmed that the truck had been stolen about a month before. The owner did not know defendant.
2.
DEFENSE CASE
The prosecution and defense stipulated that the truck was worth about $500. Darcy Landrum, a friend of defendant's mother, testified that she loaned defendant $500 to buy the truck. She had driven to its location with defendant and saw him pay the money. Thereafter, she left.
Defendant identified the bill of sale for the truck. He testified that he had lost the key and knew how to start the car by hot-wiring it, so he did that because he did not have the funds to hire a locksmith to rekey the truck. He did not register the truck because the tags had several months more to go and he had a suspended license at the time. Defendant, however, could complete traffic school and get the money for insurance by the time the tags would expire.
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
In his handwritten supplemental brief, defendant first contends that "at the time of my guilty plea[,] it was my understanding that I was agreeing to a 7 year joint suspended sentence." Defendant, therefore, contends that he had a "reasonable exspectation [sic] to get less than 7 years if [he] failed drug court." Here, the trial court sentenced defendant to a total term of 10 years. Notwithstanding defendant's argument, however, the transcript of defendant's hearing provides that the trial court told defendant that if he were not serious about drug treatment, he was "going to have a horrendous exposure[.]" The court stated: "So if you're really not serious about drug court, you're better off just pleading guilty to something and, you know, working out something on to your time and going to state prison and getting out on parole. Because if you're just not really serious about drug court and you're doing this to get out of custody, that's a really shortsighted decision because if you violate and don't make it through drug court, you're going to be doing a lot of time on this case. Do you understand that?" In response, defendant stated, "Yes, sir, I do." There is nothing in the record to indicate that the trial court stated that defendant would only receive a seven-year suspended sentence. In fact, as provided above, the trial court emphasized to defendant that he would be exposed to more time by pleading guilty should he fail at drug court.
Next, we address defendant's contention that the trial court erred in sentencing defendant to state prison instead of allowing him to continue with the drug court program. During the sentencing hearing, defense counsel made a similar argument. He stated: "[W]e would ask the Court to give some credence to probation's recommendation, that he be allowed to do the In Roads program and to continue with the drug court program. They suggest that he was in for a short period of time for running afoul of the system. It suggests perhaps a little more time in the system may be helpful to him after he completes the In Roads program. So I'd ask the Court not to follow their recommendation in the analysis but to follow their recommendation earlier in the report." In response, the trial court stated, "Well, that was not the portion of the report that I was inclined to follow. It was the order of the court recommendation." Thereafter, the trial court sentenced defendant to a total term of 10 years. We discern no abuse of discretion. Here, as provided above, the trial court informed defendant that, if he were not successful in the drug program, he would be exposed to "doing a lot of time on this case." The trial court went out of its way to make sure defendant understood the consequence of his actions before pleading guilty. Moreover, not only did defendant have a "dirty test," he also failed to appear for a court hearing. Therefore, the court had to issue a warrant for his arrest. Based on the circumstances of this case, the court did not abuse its discretion in sentencing defendant to prison instead of ordering further treatment in a drug court program.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
Acting P.J.
We concur:
King J.
Miller J.