People v. Irving CA1/2

Filed 7/27/22 P. v. Irving CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A162754 v. DISHON IRVING, (San Francisco County Super. Ct. Nos. SCN223356, CT14030279) Defendant and Appellant.

Defendant Dishon Irving appeals after the trial court denied his motion to strike a five-year enhancement for a prior serious felony at resentencing. Irving contends that the trial court improperly relied on evidence obtained in violation of Irving’s constitutional rights in denying the motion. We disagree and affirm. BACKGROUND I. Verdict and Prior Appeal On April 13, 2015, the jury found Irving and his codefendant guilty of two counts of robbery. The trial court sentenced Irving to 14 years in prison that included a five-year prior serious felony enhancement under Penal Code section 6671 and a one-year prior prison term enhancement under

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

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section 667.5. Irving appealed and this court affirmed the conviction in an unpublished opinion. (People v. Irving (Feb. 28, 2020, A148581) [nonpub. opn.] (Irving I).)2 One of the challenges Irving raised in his prior appeal was that the trial court erred in admitting a jail call Irving made in which he told a co-defendant that the victims of the robbery would not be testifying at trial. This court decided the issue as follows in its opinion: “Irving claims the trial court erred by admitting the previously discussed January 19 jail call because the prosecutor uncovered it using the contact list from his cell phone, which police obtained without a warrant in violation of the Fourth Amendment as held in Riley v. California (2014) 573 U.S. 373 (Riley). “Irving’s phone was found in the backseat of Gould’s car at the time he and his co-defendants were apprehended. The search of the car took place after Irving and Gould were removed from the car and handcuffed. Irving was in the rear passenger-side seat before he was taken out of the car. The contents of Irving’s cell phone were downloaded on January 1, 2014, hours after Irving was taken into custody, by a San Francisco police officer who did not first obtain a warrant. That same month, the prosecution produced the download of Irving’s phone, including his contacts and associated information, to the defense attorneys representing Irving, Gould, and Singleton. At some point after July 14, 2014, when the prosecutor’s original jail call request was made, he used the contacts from Irving’s phone to request all calls from Irving to those contacts and ultimately discovered the January 19 jail call. About six months after the download but several weeks or more before the prosecutor’s use of them, the United States Supreme Court