P. v. Phillips

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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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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. I will not hurt you.
Just get the fuck out of the car.” 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. The remaining charges were
dismissed in the interest of justice. 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

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arising from the same act or course of conduct. (Kellett v. Superior
Court (1966) 63 Cal.2d 822 (hereafter Kellett).)
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.) We disagree.
Section 654, subdivision (a) states: “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. (§ 417.) He was later charged in a second case
with being a convicted felon in possession of a pistol capable of
being concealed, a felony. (§ 12021.) After entering a plea of
guilty to the misdemeanor and being sentenced to 90 days in jail,
Kellett moved to dismiss the felony offense, citing section 654.
The Supreme Court held that the trial court erred in denying the
motion: “When, as here, the prosecution is or should be aware of
more than one offense in which the same act or course of conduct
plays a significant part, all such offenses must be prosecuted
in a single proceeding unless joinder is prohibited or severance
permitted for good cause. Failure to unite all such offenses will
result in a bar to subsequent prosecution of any offense omitted if
the initial proceedings culminate in either acquittal or conviction
and sentence.” (Kellett, supra, 63 Cal.2d at p. 827, fn. omitted,
italics added.)
Here, defendant contends the same act or course of conduct
played a significant part in both the receiving stolen property
charge in Merced County and the carjacking and robbery charges
in Sacramento County. We disagree.
An act or course of conduct plays a “significant part” in two
different offenses if “the evidence needed to prove one offense
necessarily supplies proof of the other.” (People v. Hurtado

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(1977) 67 Cal.App.3d 633, 636, citing People v. Flint, (1975) 51
Cal.App.3d 333, 338.) That is not the case here.
Because the trial court dismissed the carjacking charge,
the charge at issue is the allegation that defendant committed
robbery in taking the victim’s cell phone. Robbery is defined
as “the felonious taking of personal property in the possession
of another, from his person or immediate presence, and against
his will, accomplished by means of force or fear.” (§ 211.)
The victim testified that after defendant forcefully removed her
from her car, he grabbed her cell phone from her hand and tried
unsuccessfully to take her purse before jumping in the car and
speeding away. Although the parties’ stipulated that the victim
told investigators she dropped the cell phone in the car at some
point, her trial testimony was sufficient to prove that defendant
robbed her of her cell phone after he removed her from the car and
already had control of the car keys.
Section 496, on the other hand, makes it a crime to knowingly
receive property “that has been stolen or that has been obtained
in any manner constituting theft or extortion” or to knowingly
withhold any property from the owner. (§ 496, subd. (a).) In the
Merced County prosecution, defendant admitted the crime of receiving
the victim’s stolen car. Evidence necessary to prove that charge
did not necessarily supply proof of the charge of robbery regarding
the cell phone, which occurred after defendant had taken possession
of the victim’s car. Moreover, the evidence supports the court’s
conclusion that defendant’s objective in robbing the victim of
her cell phone was different from his objective in taking the car.

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The victim’s cell phone, which could be used for purposes unrelated
to the carjacking, had value to defendant separate from that of the
victim’s car.
Accordingly, the trial court correctly denied defendant’s
motion to dismiss the robbery charge.
II
We also reject defendant’s claim that imposition of the upper
term for the robbery ran afoul of the Sixth Amendment of the United
States Constitution as interpreted in Apprendi v. New Jersey (2000)
530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi) and Blakely v.
Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely).
In Apprendi, the Supreme Court held that other than the fact of
a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be tried to a jury and
proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at
p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory
maximum is the maximum sentence that a court could impose based
solely on facts reflected by a jury’s verdict or admitted by the
defendant. Thus, when a sentencing court’s authority to impose an
enhanced sentence depends upon additional fact findings, there is
a right to a jury trial and proof beyond a reasonable doubt on the
additional facts. (Blakely, supra, 542 U.S. at p. 303-305
[159 L.Ed.2d at pp. 413-414].)
In Cunningham v. California (2007) ___ U.S. ___ [166 L.Ed.2d
856] (hereafter Cunningham), the Supreme Court held that by
“assign[ing] to the trial judge, not to the jury, authority to
find the facts that expose a defendant to an elevated ‘upper term’

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sentence,” California’s determinate sentencing law (DSL) “violates
a defendant’s right to trial by jury safeguarded by the Sixth and
Fourteenth Amendments.” (Id. at p. ___ [166 L.Ed.2d at p. 864],
overruling People v. Black (2005) 35 Cal.4th 1238 on this point,
vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [2007
WL 505809].)
Here, however, the trial court cited as a basis for imposing
the upper term the fact that defendant’s prior criminal adjudications
and convictions both as a juvenile and an adult were “numerous or
increasing[ly] serious,” as well as the facts that defendant was on
probation for a prior criminal conviction when he committed the crime
in this case and that he had served a prison term for another prior
criminal conviction.
The imposition of the upper term based on these facts did not
violate the rule of Apprendi, Blakely, and Cunningham because that
rule does not apply to a aggravated sentence based on a defendant’s
prior convictions. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d
at p. 455].)
One valid aggravating factor is sufficient to expose defendant
to the upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.)
Here, there were three valid aggravating factors relating to his
prior criminal adjudications and convictions. We are satisfied
beyond a reasonable doubt that the trial court would have imposed
the upper term based on those three valid factors alone, indeed, that
it would have done so based solely on the prior criminal convictions.
Therefore, any error in considering the facts that defendant had
engaged in violent conduct, indicating he is a danger to society,

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when he robbed the victim, and that defendant’s prior performances
on probation or parole were “abysmal,” was harmless.
DISPOSITION
The judgment is affirmed.
SCOTLAND , P.J.
We concur:
DAVIS , J.
RAYE , J.

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