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The People v. Derrick Dion Tillman

May 16, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DERRICK DION TILLMAN, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F09412)

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

P. v. Tillman 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Derrick Dion Tillman of one count of evading a peace officer, one count of possessing a firearm as a felon, and two related counts of carrying a firearm. (Veh. Code, § 2800.2, subd. (a); former Pen. Code, §§ 12021, subd. (a)(1), 12025, subd. (b)(6), & 12031, subd. (a)(2)(F), respectively.*fn1

Defendant was sentenced under the three strikes law to 50 years to life in state prison, based on consecutive 25-year-to-life sentences for the police evasion and the felon firearm possession convictions; the trial court stayed the sentences on the two firearm-carrying convictions under section 654. (§§ 667, subds. (b)-(i), 1170.12.)

On appeal, defendant contends (1) the trial court misunderstood and abused its discretion in imposing the two consecutive 25-year-to-life terms; (2) the 50-year-to-life sentence is unconstitutionally cruel and unusual; and (3) defense counsel was ineffective for failing to argue that the trial court should strike the prior "strike" conviction(s) as to one of the two current convictions sentenced upon, as authorized by People v. Garcia (1999) 20 Cal.4th 490 (Garcia). We reject contention (1); we agree with contention (3), vacate the sentence, and remand to the trial court for resentencing to permit it to exercise its discretion as authorized by Garcia; and we decline to address contention (2) at this stage, in light of the sentencing remand. We also correct a clerical error brought to our attention.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant, a parolee at large, led peace officers on a short pursuit after they sought to apprehend him on December 29, 2009.

When well-marked officers descended upon defendant as he was backing his car out of a residential driveway, he ignored their surrender commands and instead drove off, nearly striking a patrol car.

A half-mile vehicle pursuit ensued that encompassed speeds up to 50 miles per hour, the running of a stop sign and a traffic light, the taking of evasive action by other drivers, and the discard from defendant's vehicle of a loaded .38-caliber revolver and about an ounce of marijuana.

Defendant eventually pulled into a parking lot, stopped his car, and got out with his hands up. Along for the ride was defendant's adult son.

A search of defendant's car disclosed a black ski mask, black gloves, two additional black beanies, several plastic baggies, and a pair of binoculars.

As noted, this is a three strikes case. Defendant's two prior strikes comprised a 1993 conviction for attempted armed robbery and a 1999 conviction for armed robbery (sometimes referred to as a conviction in 1998 or 2000). (Defendant, who was born in 1969, also has a 1992 conviction for residential burglary that ...


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