People v. Phillips CA5

Filed 10/8/24 P. v. Phillips CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F086006 Plaintiff and Respondent, (Super. Ct. No. SC074125A) v.

NICHOLAS EUGENE PHILLIPS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Elizabet Rodriguez, Judge. Jason Szydlik, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Poochigian, J. and Smith, J.

INTRODUCTION In 2023, appellant’s 1998 sentence was recalled pursuant to Senate Bill No. 483 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 728, § 3) because the sentence included a now invalid prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).1 During the resentencing hearing, the trial court stated it had “not received any information that would warrant imposing the upper term.” However, on each of appellant’s domestic violence great bodily injury enhancements (§ 12022.7, former subd. (d)), the court imposed an additional term of five years, which is the upper term for that enhancement. On appeal from resentencing, the parties agree, as do we, that the record indicates the trial court was unaware that it was imposing the upper term, and therefore was unable to exercise “ ‘informed discretion’ ” at sentencing. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) We vacate appellant’s sentence and remand the matter for resentencing. BACKGROUND I. Initial Conviction and Sentence. In 1998, a jury convicted appellant of willful, deliberate, and premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a); count 1), aggravated mayhem (§ 205; count 2), and assault with a deadly weapon (§ 245, subd. (a)(1); count 3). As to counts 1 and 3, the jury found true the enhancement allegation for personal infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, former subd. (d)). As to counts 1 and 2, the jury found true the enhancement allegation for personal use of a deadly or dangerous weapon (§ 12022, former subd. (b)). In a bifurcated proceeding, the trial court found true allegations appellant had two prior strike convictions (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1)) and served a prior prison term (§ 667.5, subd. (b)).