People v. Scott CA2/6

Filed 2/18/15 P. v. Scott CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B252018 (Super. Ct. No. SA078285) Plaintiff and Respondent, (Los Angeles County)

v.

DEMONE SCOTT,

Defendant and Appellant.

Demone Scott appeals his conviction by plea to five counts of robbery (Pen, 1 Code, § 211) and personal use of a firearm (§ 12022.53, subd. (b)). Pursuant to the negotiated plea, appellant was sentenced to 19 years state prison. Appellant claims that the plea agreement violates section 1192.7 (limiting plea bargains in serious felony cases) and the trial court erred in finding a factual basis for the firearm enhancement (§ 1192.5). We affirm. Factual and Procedural History On July 26, 2011, Antoine Hicks and Jamico Wright robbed the Home Deport in Hawthorne. (Count 4; § 211.) Wright and Hicks forced the employees into the back office at gunpoint and ran to a freeway embankment where appellant and Darnell Hedgeman were supposed to be waiting in the getaway car. After Hicks and Wright were arrested, the

1 All statutory references are to the Penal Code unless otherwise stated.

police discovered that appellant was involved in the planning and execution of the robbery and committed identical Home Depot robberies dating back to 2008. In the other robberies, appellant forced the victims at gunpoint to go to the store safe to access the money. A month after July 26, 2011 robbery, appellant told Hawthorne Police Detective Bradley Jackson that he was involved in the robbery and admitted committing two Home Depot robberies in 2008, a 2009 Home Depot robbery in Compton, and a 2011 Home Depot robbery in Marina del Rey. Appellant was shown store surveillance photos of the prior robberies and identified himself. Appellant's sister, Terrishia Banks, was shown the photos and cried, "Oh, my God. That's my brother!" The photos depicted appellant pointing a handgun at the robbery victims. Appellant was charged with seven counts of robbery (§ 211; counts 4, 5, 6, 10, 12, 14, and 20), two counts of attempted robbery (§§ 664/211; counts 16 and 18), and two counts of kidnapping for purposes of robbery (§ 209, subd. (b); counts 9 and 13). Each count alleged that appellant personally used a firearm (§ 12022.53, subd. (b)) and that a principal was armed with a firearm (§ 12022, subd. (a)(1)). After the preliminary hearing, appellant pled no contest to five counts of robbery and admitted that he personally used a firearm with respect to count 4, the July 26, 2011 robbery. (§ 12022.53, subd. (b).) Pursuant to the negotiated plea, appellant was sentenced to 19 years state prison, thereby avoiding potential life terms for aggravated 2 kidnapping. (§ 209, subd. (b)(1).) Section 1192.7 Appellant argues that the plea agreement violates section 1192.7 which prohibits plea bargains in serious felony cases unless: (1) there is insufficient evidence to prove the people's case; (2) the testimony of a material witness cannot be obtained; or (3) a reduction or dismissal of the charge would not result in a substantial change in sentence. (§ 1192.7, subd. (a).) Appellant forfeited the error by not objecting at trial. (People v. Lee (1999) 20 Cal.4th 47, 57; People v. Gonzales (1986) 188 Cal.App.3d 586, 590.) The statute