P. v. Phillips 3/23/07 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C051711

Case Date: 06/13/2007

Preview:Filed 3/23/07

P. v. Phillips 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, Plaintiff and Respondent, v. PRESTON L. PHILLIPS, Defendant and Appellant. C051711 (Super. Ct. No. 05F05718)

Defendant Preston L. Phillips pled no contest in Merced County to receiving stolen property (a car) and reckless driving. In a related

action, he was charged in Sacramento County with carjacking and second degree robbery of a cell phone. The Sacramento County court granted

his motion to dismiss the carjacking count but denied the motion as to the charge of robbery, for which defendant was then tried and convicted by a jury. He was sentenced to the upper term of five years in state

prison for the robbery and was ordered to pay various fines and fees. On appeal, defendant contends (1) the rejection of his motion to dismiss the robbery charge denied him due process of law and

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exposed him to double jeopardy, and (2) imposition of the upper term violated his right to a jury trial on the aggravating factors used to enhance his sentence. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND On May 27, 2005, Kisha Singleton drove from her Sacramento home to a restaurant to pick up dinner for her family. When she

discovered the restaurant was closed, she called her husband on her cell phone to discuss alternate dinner plans. While she talked on

the phone, she pulled over to the side of the road and stopped, leaving the engine running. When Singleton hung up the phone, defendant appeared at the passenger side window of her car, then went around the back and "charged" towards the driver's side window. He reached inside the

open window with his left hand and tried to pull Singleton out, saying, "[G]et the fuck out of [the] car. Just get the fuck out of the car." I will not hurt you.

Defendant had his right hand

in his pants, moving it around as if he had a gun. When Singleton did not comply with his demand, defendant opened the door from the inside and yanked her out. As she was

being pulled from the car, Singleton took the keys out of the ignition and grabbed her cell phone and purse. Once she was out of the car, defendant forcefully grabbed the keys and cell phone from her hands. He struggled to take her purse

from her, but finally let go, jumped in the car, and drove away. Singleton ultimately called the Sacramento Police Department, reported what had happened, and gave a physical description of

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defendant.

Several weeks later, Singleton identified defendant

in a photo lineup. On June 10, 2005, City of Merced police officer Jim Gurden noticed defendant, driving a car in front of him, acting nervous, and repeatedly looking at Gurden in the rearview mirror. Gurden

called dispatch and learned that the car defendant was driving had been stolen in a carjacking in Sacramento. Defendant evaded

a pursuit by Gurden, but was later apprehended and taken into custody. The Merced County District Attorney's office charged defendant with unlawful taking or driving of a car, receiving stolen property (the car), reckless driving, driving with a suspended license, resisting arrest, and possessing a switchblade knife. All counts

were alleged to have occurred "on or about June 10, 2005." Defendant entered a negotiated plea of no contest to receiving the stolen car and reckless driving. dismissed in the interest of justice. The remaining charges were The trial court imposed but

suspended a sentence of two years in prison, and placed defendant on probation under various conditions, including that he serve eight months in jail. In the meantime, on June 20, 2005, the Sacramento County District Attorney's office charged defendant with carjacking and robbery (the forcible taking of Singleton's cell phone), both of which were alleged to have occurred "on or about May 27, 2005." Prior to the commencement of trial of the Sacramento County action, defendant moved to dismiss both counts based on Penal Code section 654's prohibition against multiple prosecution of offenses 3

arising from the same act or course of conduct. Court (1966) 63 Cal.2d 822 (hereafter Kellett).)

(Kellett v. Superior

Finding carjacking to be akin to a robbery involving theft of a vehicle, the trial court ruled the carjacking charge was barred by defendant's no contest plea to receiving stolen property in the Merced County action, and therefore dismissed the carjacking charge. But the court declined to dismiss the charge of robbery involving the cell phone, finding the "objectives and the purpose and the intent behind [that charge] was much different from the intent and objective behind the [carjacking]." A jury found defendant guilty of the robbery charge, and the trial court imposed the upper term, in part based upon defendant's prior convictions as both a juvenile and an adult. DISCUSSION I Defendant contends that dismissal of the robbery charge was required by the prohibition against multiple prosecutions in Penal Code section 654, as interpreted in Kellett, supra, 63 Cal.2d 822. (Further section references are to the Penal Code.) Section 654, subdivision (a) states: We disagree.

"An act or omission that

is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal

or conviction and sentence under any one bars a prosecution for the same act or omission under any other."

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In Kellett, the California Supreme Court interpreted this statutory bar against multiple prosecutions. In that case, police

officers were dispatched to the scene of a "disturbance" and saw Kellett holding a pistol. They arrested him, and he was charged

that same day with exhibiting a firearm in a threatening manner, a misdemeanor. (

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