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The People v. Phillip James Dering

December 21, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PHILLIP JAMES DERING, DEFENDANT AND APPELLANT.



(Monterey County Super. Ct. No. SS091218A)

The opinion of the court was delivered by: Elia, J.

P. v. Dering CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On August 5, 2009, the Monterey County District Attorney filed an amended information in which appellant was charged with assault by means of force likely to produce great bodily injury or with a deadly weapon (a bottle) (Pen. Code, § 245, subd. (a)(1), count one) and battery with serious bodily injury. (§ 243, subd. (d), count two).*fn1 The information alleged that appellant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)); had served two prior prison terms within the meaning of section 667.5, subdivision (b); and had suffered a prior serious and violent felony conviction within the meaning of sections 1170.12, subdivision (c)(1) and 667, subdivision (a)(1).

Following a jury trial, appellant was found not guilty of assault with a deadly weapon, but guilty of assault by force likely to produce great bodily injury and guilty of battery with serious bodily injury. In addition, as to the assault charge, the jury found appellant personally inflicted great bodily injury on the victim. After appellant waived jury trial on the priors, the court found all prior conviction allegations to be true.

On December 18, 2009, the court denied appellant's motion to strike his prior strike conviction, denied probation and sentenced appellant to an 18-year state prison term composed of the following: the upper term of four years on count one doubled by virtue of appellant's prior strike conviction (§ 1170.12), plus three years for the great bodily injury enhancement (§ 12022.7) and a five-year enhancement pursuant to section 667, subdivision (a)(1) and two one-year prior prison terms pursuant to section 667.5, subdivision (b).

Appellant filed a timely notice of appeal.

On appeal, appellant raises four issues. First, he contends that the trial court erred in failing to give a self-defense instruction. Second, he was denied the effective assistance of counsel because trial counsel did not request a self-defense instruction. Third, the trial court erred by imposing a one-year prison term for the same prior conviction for which the trial court imposed a five-year prison term. Finally, the trial court erred in imposing a court facilities assessment.

For reasons that follow, we find no merit in appellant's contentions and affirm the judgment.

Facts and Proceedings Below

At approximately 3 p.m. on April 24, 2009, William Traficanti was in his car, which was stopped at a red light, when his attention was drawn to two men having an animated conversation on the sidewalk approximately 75 to 90 feet away. Traficanti could not hear the conversation, but the men appeared perturbed. Traficanti described the men as "a black man and a white man." Traficanti saw the white man, later identified as appellant, walk away for about five to 10 steps, then turn around and walk back.*fn2 Appellant walked up to the black man, later identified as David Williams, grabbed him by the collar of his shirt and threw him down onto the pavement on his back.*fn3 Traficanti stated that he felt "like [he] could almost hear the guy's head hit the concrete." Traficanti saw appellant kick Williams in the back of the head "at least once, perhaps twice." Then, appellant turned and walked away. At no time did Traficanti see Williams throw a punch at appellant.

Traficanti called 911 on his cell phone and went to aid Williams. When Traficanti reached Williams he appeared to be unconscious and seemed to be having trouble breathing. Traficanti could smell beer on Williams. Later, he saw a broken beer bottle in the gutter nearby. When asked by defense counsel if he saw a cut on appellant's head, Traficanti said that he did not notice one while he was sitting in traffic. However, later, when he saw appellant after the police had apprehended him, appellant had a wound to his head that was bleeding.

Two other people witnessed the incident. Jacinta Atilano testified that she was in her car and saw at least part of the fight. Atilano said that she looked over and "saw a tall black man basically getting hit by a shorter white man." In court, Atilano identified appellant as the white man.*fn4 According to Atilano, she saw appellant hit Williams with a beer bottle; the blow knocked Williams down. Thereafter, appellant walked away, turned back and punched Williams while Williams was on the ground. At this point, Williams was "throwing up blood" and was "totally defenseless."

Atilano testified she was about 10 feet from the men and never heard them speak a word. After appellant left the scene, Atilano went to help Williams and could smell alcohol on his breath. When Atilano identified appellant in the field, she noticed that he appeared to be injured, but she could not recall seeing any injuries on him when he left the fight. Atilano testified that she did not see Williams hit appellant.

Bob Lord, a parks and recreation worker, was doing his last park roundup check when he noticed that the traffic was stopped and that two "guys" were walking up the street. It appeared to Lord that they were arguing. Lord could not hear what they were saying due to the fact that they were 100 feet away and he has a "hearing problem." Lord did not pay much attention to what was going on. He reached down to grab his water bottle and when he looked back up he saw appellant hit Williams in the head. Immediately, Williams went down "like a sack of rocks." He saw appellant walk away, turn around and then kick Williams in the head. Appellant picked up a jacket or other article of clothing and then went back up the street.

Lord never saw Williams throw a punch, or make any aggressive moves, nor did he recall seeing an injury to appellant's head or face. Lord did not know what started the fight and he never saw either man use a bottle as a weapon. After the fight, Lord went to help Williams; he did not smell any alcohol on him.

Salinas Police Officer Rodolfo Roman testified that he responded to a 911 call "of a subject beating up on a 62 year old male." When he arrived on scene, Williams, who appeared to be unconscious, was being placed in an ambulance. Williams had blood on his face. He did not open his eyes or speak. Officer Roman talked to witnesses and collected evidence. Nearby, he found a bank card belonging to Williams, an iPod, a baseball cap, a jacket that the medics had cut off Williams and a set of keys. In the street the officer found an unopened 40 ounce bottle of beer.

Paramedic Travis Simpson and emergency medical technician Laura Heredia treated Williams at the scene. Williams was unconscious and lying in a puddle of vomit. At one point, Williams "woke up" for a few seconds, resisted the pain of being positioned on a back board then fell unconscious again. His lower lip was "busted." He had a very swollen right eye, "significant" head trauma and an obvious fresh deformity in his frontal area -- a baseball size hematoma, quite a bit of blood on his face and a laceration to the right side of his face. According ...


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