P. v. Otis

Filed 9/19/06 P. v. Otis CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County,

Fred J. Fujioka, Judge. Affirmed.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

James Otis appeals from the judgment entered following his no contest plea to first degree residential robbery for which he was sentenced to the lower state prison term of three years. On appeal, he contends the trial court abused its discretion by denying him probation. We conclude the court did not abuse its discretion by sentencing him to state prison and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As recounted at the preliminary hearing, Tyeatha Washington agreed to meet Terrance Anderson in his hotel room after he solicited her for sex near a street corner. She arrived at the hotel room with Carrie Whited, who opened the door minutes later for Otis and a male confederate. When Anderson saw the men in the room, he became frightened and attempted to leave, but Otis blocked his path. Otis then grabbed Anderson's right wrist, pulled it behind Anderson's back and choked him before pushing him down on the bed. Anderson did not resist. As Otis restrained Anderson, his confederate searched Anderson's pockets and removed over $5,000 in cash, which he gave to Otis. The confederate also took Anderson's wallet and his car keys.

Otis, Whited, and Washington[1] were each arrested and subsequently charged with first degree residential burglary and first degree residential robbery, with special allegations a person other than an accomplice was present during the burglary and the robbery was committed by defendants acting in concert (home invasion robbery).[2] Otis agreed to plead no contest to first degree residential robbery and in exchange, the court granted the People's motion to dismiss the acting in concert special allegation and the residential burglary charge. Otis entered the plea with the understanding he would be referred to the Department of Corrections for a 90-day diagnostic report pursuant to Penal Code section 1203.03,[3] and, if probation were denied then his maximum potential state prison sentence would be the four-year middle term for first degree residential robbery.[4] A diagnostic report was ordered.

At the sentencing hearing the trial court announced it had read and considered the diagnostic report recommending Otis as a suitable candidate for probation. The court stated it had also reviewed the probation report and numerous letters on Otis's behalf attesting he was a loving father, good friend, and hard worker. The court heard from several family members who presented similarly supportive statements. Otis also spoke to the court. He expressed remorse for â€