California Court of Appeal Aug 25, 2022 No. E077218Unpublished
Filed 8/25/22 P. v. Tate CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077218
v. (Super.Ct.No. FWV20002032)
DOMINIQUE DESHAWN TATE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,
Judge. Affirmed.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Amanda
Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Dominque Deshawn Tate stabbed a woman multiple
times causing her serious injuries. Defendant was convicted of attempted murder,
personal use of a deadly and dangerous weapon, and personally causing great bodily
injury to the victim.
Defendant contends on appeal that (1) he was denied his state and federal
to advise the jury that although defendant had the knife, he never had the intent to kill the
victim. This was a reasonable defense in light of the evidence introduced at trial. J.B.
had testified he saw defendant standing over the victim holding a knife and Shahid was
16
behind him. The victim testified that defendant was the one who stabbed her.
Defendant’s counsel made a reasonable tactical decision, based on the evidence, to argue
there was no intent to kill. Defendant has not met his burden of showing ineffective
assistance of counsel.
C. ROMERO MOTION
Defendant contends the trial court should have struck one of his prior
convictions—his 2012 attempted burglary conviction—on the grounds he had a troubled
childhood during which he was exposed to gangs and drug dealing. This would result in
a fair and just sentence.
1. DEFENDANT’S ROMERO MOTION AND RULING
Prior to sentencing, defendant filed a motion to dismiss his prior strike conviction
of attempted burglary dating back to 2012. Defendant’s counsel provided defendant’s
background. Defendant was 30 years old. He was raised in a “gang infested
neighborhood” in Compton. His mother was a documented gang member who suffered
from drug addiction her entire life. Defendant’s father was a member of the Fruit Town
Piru gang and was not present during his childhood. Defendant lived with various
relatives when mother was in jail or rehabilitation facilities. When defendant was 12
years old, he moved in with his father in Las Vegas. When defendant was 14 years old,
his father was convicted of drug trafficking and sent to prison. Defendant moved back to
Compton and joined the Fruit Town Piru gang. Both of defendant’s siblings were gang
members and were in prison.
17
Defendant committed his first qualifying prior strike offense of attempted burglary
in 2011 when he was 20 years old. He pled guilty to attempted burglary and was
sentenced to two years. In October 2012, after being released on the attempted burglary,
he was arrested for residential burglary and pled guilty. He was sentenced to nine years
in state prison. Defendant’s counsel argued that defendant would still have a long
sentence of 24 years if the trial court struck the 2012 prior conviction. Further, both of
the prior convictions were for non-violent felonies.
The People filed opposition. The People outlined defendant’s criminal history.
As a juvenile, between 2005 and 2007, defendant had arrests or contacts with law
enforcement for vandalism, burglary, shooting at an inhabited dwelling or vehicle, grand
theft, assault with a firearm and resisting a police officer. In 2010, defendant was
convicted of carrying a concealed firearm for which he received a two-year state prison
sentence. He twice violated his probation. The facts of the 2012 offense were that
defendant and two other accomplices cut a window screen to gain access to a house.
While still on parole for that offense, he and two other suspects cut a window screen to
gain access to a home. The home was ransacked and jewelry was missing.
The People argued that the current offense was a “brutally violent crime.”
Further, defendant tried to manipulate his girlfriend to take responsibility for the crime.
In a recorded jail call, he tried to get her to testify that she stabbed the victim. He had
shown no remorse.
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The probation report set forth defendant’s convictions which included (1) a
conviction on February 5, 2010, for possession of a firearm, for which he received a two-
year sentence after his probation was revoked; (2) a conviction on January 31, 2012, for
attempted burglary for which he received a two-year state prison sentence; and (3) a
conviction on March 20, 2013, for first degree felony burglary for which he was
sentenced to nine years.
At the hearing on the Romero motion, the trial court first stated it had taken into
consideration defendant’s upbringing. However, defendant had been convicted of three
“prior felonies in relatively quick succession.” The trial court noted, “He was sentenced
in 2010 for possession of a firearm on a person in a vehicle with a prior conviction. He
received two-years state prison at that time, after a probation violation. [¶] After he was
released from state prison in September of 2011, he picked up an attempted residential
burglary, which is, of course a strike offense. He received two-years state prison on that
offense in January of 2012. [¶] In October 2012, which would have been necessarily just
strictly after his release from prison on that strike offense. He was convicted of
residential burglary . . . . The offense date was October of 2012. The conviction and
sentence was March of 2013.” He was sentenced to nine years in prison because of the
prior strike offense. He committed the instant offense while on parole.
The trial court further stated, “And the current offense was particularly violent in a
personal way, cutting the victim’s face and stabbing her, 11 stab wounds, total, and the
potential disfiguring of the victim. Certainly a great bodily injury enhancement was
found true.” The trial court found there was minimal provocation and there was some
19
sophistication as defendant fled to another state after the crime. The trial court stated,
“[O]verall, on balance, even taking into consideration his upbringing, he had a lot—three
attempts through the system, prison commitments. The system has failed to rehabilitate
him. And this is an increasing level of violence and dangerousness for all reasons stated.
[¶] I cannot say that [defendant] does not fall within the spirit of the three-strikes law.
One can argue he is a poster child for it. Being on parole for serious felonies and having
his sentencing enhanced by a second strike. . . . [¶] I think if the Court were to grant the
motion, I think it would represent, maybe, an antipathy for the strikes law, more than a
particularized determination applying it to this case and this defendant.”
The trial court concluded, “I just don’t think there is a basis in review of these as
to discretion to strike one of his prior convictions in this case. The motion is respectfully
denied.”
2. ANALYSIS
A trial court may dismiss a prior strike conviction under section 1385 “in
furtherance of justice.” (§ 1385, subd. (a).) In determining whether to strike a prior
conviction, the trial 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
20
The denial of a Romero motion is reviewed under the deferential abuse of
discretion standard. (People v. Williams, supra, 177 Cal.4th at p. 162.) “ ‘Under that
standard an appellant who seeks reversal must demonstrate that the trial court’s decision
was irrational or arbitrary. It is not enough to show that reasonable people might disagree
about whether to strike one or more of [the] prior convictions. Where the record
demonstrates that the trial court balanced the relevant facts and reached an impartial
decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling,
even if we might have ruled differently in the first instance.’ ” (People v. Romero (2002)
99 Cal.App.4th 1418, 1434.)
Here, the trial court considered defendant’s childhood, his criminal history and the
circumstances of the current crime. Defendant committed his prior offenses relatively
close together and committed each of these crimes while on probation or parole for other
offenses. Further, the circumstances of the current crime were particularly violent and
personal. Defendant attacked the victim in her own home, causing severe and gruesome
injuries. As stated by the trial court, defendant was the “poster child” for a three-strikes
sentence. The sentence imposed on defendant based on all of the circumstances was fair
and just. The trial court did not abuse its discretion by denying defendant’s Romero
motion.
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DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
FIELDS J.
22
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction and sentence, holding that the trial court did not abuse its discretion in excluding hearsay statements as unreliable and that the defendant failed to establish ineffective assistance of counsel or error in the denial of his Romero motion.
Issues
Whether the trial court erred in excluding a third party's recanted confession as inadmissible hearsay.
Whether trial counsel provided ineffective assistance by failing to further cross-examine the victim on a prior conviction and by conceding certain facts during closing argument.
Whether the trial court abused its discretion in denying the defendant's Romero motion to strike a prior conviction.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The trial court did not abuse its discretion by excluding Shahid’s pretrial statements as they were unreliable and inadmissible hearsay.”
“Defendant’s counsel made a reasonable tactical decision, based on the evidence, to argue there was no intent to kill.”