P. v.
Filed 7/17/12 P. v. Boston CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DARRELL
DWAYNE BOSTON,
Defendant and Appellant.
A129771
(Napa
County
Super. Ct.
No. CR145742)
Darrell
Dwayne Boston appeals from a judgment upon a jury verdict finding him guilty of
robbery (Pen. Code,
§ 211). The jury also found true
the allegation that defendant used a deadly weapon in the commission of the
offense (§ 12022, subd. (b)(1)).
In a bifurcated proceeding, the court considered the issue of the charged
prior convictions–whether defendant suffered multiple prior strikes and prior
serious felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)), 667, subd. (a)); and three prior prison terms
(§ 667.5, subd. (b)). The court
determined the issue of identity–that it was defendant who suffered the prior
convictions, and as to the strike convictions, the court determined that they
were brought and tried separately. The
jury then considered whether the allegations that defendant suffered the prior
convictions in three separate cases was true.
The jury found the prior conviction allegations to be true. Defendant contends that the trial court
abused its discretion in failing to strike the prior strike allegations in the
interests of justice. He also argues
that he was entitled to a jury trial on the issue of whether he was identified
as the person who suffered the alleged prior convictions. We affirm.
On
April 20, 2009, defendant, armed with a BB gun, and Marques Williams committed
a robbery of Kulbir Singh Dhillon.
Defendant approached Dhillon, as he was about to make a cash deposit of
about $33,000 in Westamerica Bank in Napa.
Defendant pulled the gun out, demanded that Dhillon give him the money,
hit Dhillon with the gun, kicked him, and said “you are dead.” Defendant took the money and fled in a car
driven by Williams. Williams knew that
Dhillon would be making the deposit based on an inside tip and surveillance of
Dhillon. Defendant and Williams were
subsequently apprehended.
At
sentencing, the trial court denied defendant’s motion to dismiss the strike
priors, but struck the section 667.5, subdivision (b) allegation. The court sentenced defendant to 25 years to
life plus one year for the dangerous or deadly weapon allegation, and imposed
two five year terms pursuant to section 667, subdivision (a) for a total term
of 36 years to life.
Defendant
contends that the trial court abused its discretion in failing to strike the
prior strike convictions in the interests
of justice under section 1385 and People
v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530 (Romero). He argues that the
convictions were stale as the first set occurred 26 years ago and the second
set of convictions occurred 18 years prior to the current offense.
In
Romero, the court held that the three
strikes law did not preclude the trial court from exercising its power under
section 1385, subdivision (a) to dismiss a prior conviction allegation in the
furtherance of justice. (
530.) We review a court’s decision not
to dismiss or strike a prior serious or violent felony conviction allegation
for abuse of discretion. (
374-375.) In ruling on a motion to
dismiss a prior strike allegation, the court must consider “ ‘whether, in light
of the nature and circumstances of his present felonies and prior serious
and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent felonies.’ ” (Id. at
p. 377, quoting People v. Williams
(1998) 17 Cal.4th 148, 161.)
Here,
the trial court denied defendant’s Romero
motion, stating “Mr. Boston has sustained 26 prior Strike allegations or
Strike convictions. Nine 211s occurred
in 1984 and an additional 17 occurred in 1992.
[¶] And I have considered [defense counsel’s] Romero motion and the motion to strike those prior Strike
convictions and I’m going to deny that request.
I believe that Mr. Boston is the type of offender that the Legislature
had in mind when [it] implemented the Three Strikes law, where you have a
person that has repeatedly violated the serious and violent felony laws as Mr.
Boston has by committing this many robbery convictions within the last 20
years, 30 years. [¶] He just
doesn’t get it that he cannot go out and rob people. And whatever I feel about Mr. Boston or
anyone feels about Mr. Boston personally–I don’t believe Mr. Boston is a bad
person, but he has committed bad crimes and he’s been a danger to our
community. He was a danger to the community
in Oakland and in San Leandro when he committed his prior
strike those prior Strike convictions.”
The
trial court did not abuse its discretion in denying the Romero motion. While
defendant contends that his prior convictions were committed years ago, the
record shows that he has spent little time out of custody over the past 26
years. He was convicted of nine counts
of robbery and one count of auto theft in 1984 and sentenced to six years. He was subsequently paroled in late 1987,
only to be returned to prison for a parole violation the following year. In December 1989, defendant was convicted of
felony auto theft and sentenced to 16 months in state prison. He was released on parole in July 1990, but
was in and out of prison for the next year and a half for parole
violations. In July 1992, he was
arrested again and subsequently charged and convicted of 17 counts of robbery
and sentenced to a prison term of 18 years.
He was ultimately discharged in that case in August 2006. The present offense occurred less than three
years later. Hence, contrary to
defendant’s argument, his record establishes that he is a career criminal who
has a lengthy and violent criminal record–the type of individual whose conduct
places him squarely within the spirit of the three strikes law.
Defendant
argues that the court abused its discretion in failing to strike the prior
offenses because it did not consider any of the facts and circumstances of the
prior offenses. He also contends that
the court failed to consider his remorse and his minimal role in the planning
of the robbery.
The
record belies defendant’s arguments. The
court had before it the probation report as well as the parties’ sentencing
memoranda, and the records of the prior convictions. The documentation provided by the People
proved defendant’s prior convictions, and the court’s comments during the
hearing reflect that it considered defendant’s character but found it was
inappropriate to strike the prior convictions given defendant’s extensive
criminal record. Defendant has not
demonstrated that the court abused its discretion in denying his
Finally,
defendant contends that he was entitled to a jury trial on the issue of whether
he was the person who committed the alleged prior convictions. He acknowledges that the California Supreme
Court has ruled that defendants are not entitled to a jury trial on the issues
of the precise facts of a prior conviction.
(People v. McGee (2006) 38
Cal.4th 682, 686, 706-707 (McGee).) He, however, raises the issue to preserve it
should he seek further review in the federal courts. We are bound by the Supreme Court’s ruling in
McGee and therefore reject
defendant’s contention. (
455.)
The
judgment is affirmed.
_________________________
RIVERA,
J.
We concur:
_________________________
REARDON, ACTING P. J.
_________________________
SEPULVEDA, J.*
* Retired Associate Justice of
the Court of Appeal, First Appellate District, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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All further statutory references are to the Penal Code.
