P. v. Tillman
Filed 5/24/13 P. v. Tillman CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
THIRD APPELLATE DISTRICT
(Sacramento
----
>
THE PEOPLE, Plaintiff and Respondent, v. DERRICK DION TILLMAN, Defendant and Appellant. | C070879 (Super. Ct. No. 09F09412) ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] |
THE COURT:
It is
ordered that the opinion filed herein on May 16, 2013, be modified
as follows:
At the end of the Disposition on page 10, add the following
sentence:
Upon issuance of the
remittitur, the Clerk/Administrator of this court is directed to send a copy of
this opinion to the State Bar of California.
so that the Disposition now
reads:
DISPOSITION
Defendant’s sentence is
vacated and we remand this matter to the trial court for resentencing to permit
it to exercise its discretion as authorized by Garcia, supra,
abstract of judgment to reflect a main jail booking fee of $270.17 and a main
jail classification fee of $51.34, and to send, after resentencing, a certified
copy of the abstract to the Department of Corrections and Rehabilitation
reflecting the resentencing proceeding and changes to the sentence, if any, and
the correction of these two fee amounts.
In all other respects, the judgment is affirmed. Upon issuance of the remittitur, the
Clerk/Administrator of this court is directed to send a copy of this opinion to
the State Bar of California.
There is no
change in judgment.
BY THE COURT:
NICHOLSON , Acting P. J.
ROBIE , J.
BUTZ , J.
Filed 5/16/13 P. v. Tillman CA3 (unmodified version)
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
THIRD APPELLATE DISTRICT
(Sacramento
----
>
THE PEOPLE, Plaintiff and Respondent, v. DERRICK DION TILLMAN, Defendant and Appellant. | C070879 (Super. Ct. No. 09F09412) |
A jury
convicted defendant Derrick Dion Tillman of one count of evading a peace
officer, one count of possessing a firearm as a felon, and two related counts
of carrying a firearm. (Veh. Code,
§ 2800.2, subd. (a); former Pen. Code, §§ 12021, subd. (a)(1), 12025,
subd. (b)(6), & 12031, subd. (a)(2)(F), respectively.
Defendant
was sentenced under the three strikes law to 50 years to life in state prison,
based on consecutive 25-year-to-life sentences for the police evasion and the
felon firearm possession convictions; the trial court stayed the sentences on
the two firearm-carrying convictions under section 654. (§§ 667, subds. (b)-(i), 1170.12.)
On
appeal, defendant contends (1) the trial court misunderstood and abused its
discretion in imposing the two consecutive 25-year-to-life terms; (2) the
50-year-to-life sentence is unconstitutionally cruel and unusual; and (3)
defense counsel was ineffective for failing to argue that the trial court
should strike the prior “strike†conviction(s) as to one of the two current
convictions sentenced upon, as authorized by People v. Garcia (1999) 20 Cal.4th 490 (Garcia). We reject
contention (1); we agree with contention (3), vacate the sentence, and remand
to the trial court for resentencing to permit it to exercise its discretion as
authorized by Garcia; and we decline
to address contention (2) at this stage, in light of the sentencing
remand. We also correct a clerical error
brought to our attention.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant,
a parolee at large, led peace officers on a short pursuit after they sought to
apprehend him on December 29, 2009.
When
well-marked officers descended upon defendant as he was backing his car out of
a residential driveway, he ignored their surrender commands and instead drove
off, nearly striking a patrol car.
A
half-mile vehicle pursuit ensued that encompassed speeds up to 50 miles per
hour, the running of a stop sign and a traffic light, the taking of evasive
action by other drivers, and the discard from defendant’s vehicle of a loaded
.38-caliber revolver and about an ounce of marijuana.
Defendant
eventually pulled into a parking lot, stopped his car, and got out with his
hands up. Along for the ride was
defendant’s adult son.
A search
of defendant’s car disclosed a black ski mask, black gloves, two additional
black beanies, several plastic baggies, and a pair of binoculars.
As noted,
this is a three strikes case.
Defendant’s two prior strikes comprised a 1993 conviction for attempted
armed robbery and a 1999 conviction for armed robbery (sometimes referred to as
a conviction in 1998 or 2000).
(Defendant, who was born in 1969, also has a 1992 conviction for
residential burglary that qualifies as a strike conviction but that offense was
not charged as a strike here.)
After
denying defendant’s motion under section 1385 and People v. Superior Court (Romero)
armed robbery conviction as a prior strike, and sentence defendant instead to a
determinate “two-strike†sentence as to each of the two current convictions
sentenced upon (the police evasion and the felon firearm possession), the trial
court sentenced defendant to the three-strike sentence of 50 years to life, as
noted.
DISCUSSION
I. Two
Consecutive Sentences on Current Felony Convictions
Defendant
contends the trial court misunderstood the scope of its consecutive sentencing
discretion and, if it understood its discretion, it abused that discretion by
not imposing concurrent sentences on the two current felony convictions
sentenced upon (police evasion and felon firearm possession). We disagree.
The trial
court imposed consecutive sentences, reasoning:
“The[se] [two] crimes and their objectives . . . were
predominantly independent of each other . . . .â€
The three
strikes law requires “that sentencing on distinct
current offenses be consecutive . . . .†(Garcia,
requirement and did not abuse its discretion in finding the two sentenced
current crimes “distinctâ€â€”i.e., predominantly independent of one another. Neither of these two offenses facilitated the
other, nor was one carried out to undertake the other. (See People
v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410 [“the crime [of firearm
possession by a felon] is committed the
instant the felon in any way has a firearm within his controlâ€] original
italics omitted; our italics added; People
v. Jones (2002) 103 Cal.App.4th 1139, 1148 [the crime of felon firearm
possession “uniquely targets the threat [in and of itself] posed by felons who
possess firearmsâ€].)
We
conclude the trial court properly sentenced consecutively the current convictions
for police evasion and felon firearm possession.
II. Ineffective
Assistance of Defense Counsel
A. Background
As noted,
defense counsel unsuccessfully argued, in a Romero
motion (Romero,
three-strike life sentence; counsel asked the trial court to “strike†one of
defendant’s two prior strike convictions—his 1993 conviction for attempted
armed robbery—as to the two current felony convictions sentenced upon (police
evasion and felon firearm possession), “in the interest of justice in an effort
to provide a [two-strike]
life] sentence.†(Italics added.)
What
defense counsel did not do at sentencing, however, was to follow up his
unsuccessful Romero motion with a
defendant’s prior strike convictions as to one of the two current convictions
being sentenced upon, but not as to the other.
The Garcia motion, if
successful, would have resulted in defendant being sentenced to 25 years to
life on one of the two current convictions, plus some form of much lower
consecutive sentence for the other current conviction. (See Garcia,
§ 2800.2, subd. (a) [police evasion] and Pen. Code, former § 12021,
subd. (a)(1) [felon firearm possession] [both of these offenses have a
sentencing triad of 16 months/two years/three years] .)
In
denying defendant’s Romero motion,
the trial court made an extensive record that provides the backdrop and
essentially all we need to know to resolve the issue of ineffective assistance
of counsel that defendant raises here based on Garcia. Consequently, we
will now quote liberally from the trial court’s record, and then use that
record to resolve the Garcia-based
ineffective assistance claim.
In
denying defendant’s Romero motion in
April 2012, the trial court stated as relevant (some parts of the trial court’s
remarks have been quoted out of order, for organizational purposes of this
opinion):
“[P]erhaps
it would be more simple and clear or predictable if the law was such that the
third strike had to be a serious felony.
That is not the law today, and the Court is bound and obligated to apply
the law as it is today.[
title="">[2]]
“And
Penal Code [section] 1385 and People v.
Gurrero [sic;
strike a prior conviction after a consideration of defendant’s background, the
present case, and other individualized considerations, and the Court has done
that. . . .
“The
current offenses are not violent.
However the current offense involved a felony evading of peace officers
at the time the defendant was a parolee at large. [The offense involved] a high-speed chase in
a residential area with at least one school [nearby,] . . . albeit
less than a mile, . . . including running through a stop sign, and
during this chase the defendant threw out a loaded firearm
. . . , and . . . his son dropped a bag of marijuana
. . . .
“One of
the appropriate considerations for the court is what would be the potential
sentence if a [prior] strike [conviction] was struck, and the maximum the court could impose if the court struck a prior
would be seven years four months [i.e., an aggregate two-strike, doubled
consecutive term for the police evasion and the felon firearm possession, as
noted in the probation report].
[(Italics added.)]
. . .
“Both
prior convictions are violent felonies per [section] 667.5 of the Penal
Code.†The first prior strike conviction
is from 1993 for attempted armed robbery.
Defendant “entered a McDonald’s wearing a ski mask, pulled a gun to a
customer’s neck, demanded that the customer give him the gold, when the victim
tried to grab the gun defendant struck the victim in the neck with his
hand. He discharged the gun after he
demanded the money from an employee, and he said to another employee [trying to
flee], ‘stop or I will shoot you.’ â€
The second prior strike conviction is from 1999 for armed robbery. “And in that robbery he pointed a shotgun at
a victim and forced him to give defendant everything. He then pointed the gun at another person at
an apartment complex.â€
“There
has been no break or any significant . . . period of law abidingness
from when the defendant was a juvenile to when [he] was 40 years old.†He has juvenile adjudications for misdemeanor
battery (1984) and felony cocaine possession (1987). Besides the two prior strike convictions
found here, he has adult convictions for carrying a loaded firearm (1990);
cocaine transportation (1991); residential burglary (1992—a strike conviction
itself, the trial court noted, which was dismissed during the sentencing
proceeding on the 1999 robbery conviction, giving defendant a break at that
point and a chance to turn his life around then); obstructing an officer
(1996); and a pending driving under the influence case (2011).
“[S]o, as
I said, he never had a significant period of law abidingness,
ideal ones, I do believe 50 years to
life is too high, . . . these decisions the Court makes on
. . . Romero motions are
the hardest decisions I believe the Court makes. [(Italics added.)]
“However,
applying the law, Romero, and
given this record, the Court cannot say that the defendant falls outside of the
spirit of the three strikes law. . . . [T]he Court would also like to point out that
while being on parole [defendant’s] had . . . five violations. So the [C]ourt is, after . . .
individualized consideration involving the defendant, the Court is going to
deny [the Romero] motion to strike
the prior [strike] conviction.â€
B. Analysis
In
state Supreme Court held that a trial court, in applying the three strikes law
in sentencing on more than one current felony conviction, may exercise its
discretion under section 1385 to dismiss a prior strike conviction with respect
to one current conviction but not another.
(Id. at
pp. 492-493.) In short, under
stricken on a current conviction-by-conviction basis.
ultimate determination in sentencing under the three strikes scheme is whether
a defendant—considering his present felonies, his prior strike convictions, and
his background, character and prospects—“ ‘may be deemed outside the scheme’s
spirit, in whole or in part.’ †(
at pp. 498-499, quoting People v.
Williams, supra,
explained that a defendant’s overall sentence under the three strikes law is “a
relevant consideration when deciding whether to strike a prior [strike]
conviction . . . ; in fact, it is the overarching consideration
because the underlying purpose of striking prior [strike] conviction[(s)]
[under section 1385] is the avoidance of unjust sentences.†(Garcia,
Defendant
contends his trial counsel rendered ineffective assistance by failing to argue
that the trial court should strike the prior strike conviction(s) on a current
conviction-by-conviction basis, as contemplated by Garcia. We agree. As we shall explain, after the trial court
denied defendant’s Romero motion to
strike his 1993 robbery conviction as to both
of his current convictions being sentenced (and make this matter a second
strike case as to each current conviction—the police evasion and the felon
firearm possession), defense counsel was ineffective for failing to make a
conviction as to one of the two
current felony convictions being sentenced.
To
establish ineffective assistance of counsel, defendant must show (1) that
counsel failed to act as a reasonably competent attorney, and (2) that
prejudice resulted (i.e., there is a reasonable probability defendant would
have fared better in the absence of counsel’s failings). (People
v. Gates (1987) 43 Cal.3d 1168, 1183, disapproved on another point in
49 Cal.4th 405, 459.)
Defendant
has shown that his counsel failed to act as a reasonably competent
attorney. There is no conceivable reason
for defense counsel not to have made a Garcia
motion following the denial of the Romero
motion, given the trial court’s remarks regarding the disparate sentencing
choices legally available—approximately seven years versus 50 years. Defendant had nothing to lose and decades of
sentence reduction to possibly gain through a Garcia motion. (E.g., defendant
could have been sentenced under the three strikes law to 25 years to life for
one of his current felonies, and to a much lower second strike or simple
consecutive sentence on the other current felony—see Garcia, supra,
Veh. Code, § 2800.2,
subd. (a); and Pen. Code, former § 12021, subd. (a)(1).)
Likewise,
defendant has also shown his counsel’s ineffectiveness prejudiced him. In denying defendant’s Romero motion to make this a second strike case as to both current
felony convictions being sentenced (police evasion and felon firearm
possession), the trial court remarked that granting the Romero motion would result in a “maximum†sentence of only “seven
years four months.†But the trial court
later remarked that while it “believe[d] 50 years to life is too high,†and the
sentencing “choices are not ideal ones,†this lengthy sentence was compelled by
Romero. In short, the trial court’s remarks at the
hearing on defendant’s Romero motion
show the court believed the seven-year four-month sentence was too low, and the
50-year-to-life sentence too high.
Perhaps
choice, but defense counsel failed to strike, so to speak, while the iron was
hot. The trial court considered
sentence case as to both of the current convictions. Defense counsel never presented the
court. Neither did the probation report,
which framed its sentencing recommendations exclusively in terms of defendant’s
two prior strike convictions being stricken (yielding a sentence of three years
eight months); one prior strike conviction being stricken (a sentence of seven
years four months); and no prior strike convictions being stricken (a sentence
of 50 years to life).
In light
of defense counsel’s ineffective assistance of counsel, we vacate defendant’s
sentence of 50 years to life and remand to the trial court for resentencing to
permit it to exercise its discretion as authorized by Garcia.
III. Clerical
Errors
We agree
with both parties that the abstract of judgment and sentencing minute order
fail to accurately reflect the main jail booking fee of $270.17 and the main
jail classification fee of $51.34, as ordered by the trial court. We will order these clerical errors
corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
Defendant’s
sentence is vacated and we remand this matter to the trial court for
resentencing to permit it to exercise its discretion as authorized by
490. The trial court is directed to
correct the abstract of judgment to reflect a main jail booking fee of $270.17
and a main jail classification fee of $51.34, and to send, after resentencing,
a certified copy of the abstract to the Department of Corrections and
Rehabilitation reflecting the resentencing proceeding and changes to the
sentence, if any, and the correction of these two fee amounts. In all other respects, the judgment is
affirmed.
BUTZ ,
J.
We concur:
NICHOLSON , Acting P. J.
ROBIE , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2] After the trial court sentenced defendant,
the California electorate in November 2012 passed Proposition 36, which has
modified the three strikes law in a manner suggested by the trial court. Proposition 36 is not before us in this
appeal, and we express no views on it.
