California Court of Appeal Jul 24, 2015 No. E061757Unpublished
Filed 7/24/15 P. v. Phillips 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E061757
v. (Super.Ct.No. RIF145538)
EMMANUEL PHILLIPS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Affirmed.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance by Plaintiff and Respondent.
This is defendant and appellant Emmanuel Phillips’ second appeal following a
remand for resentencing. In his first appeal, case No. E055866, this court reversed
defendant’s attempted murder convictions (counts 3, 4, & 5) and the associated
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enhancements, and directed the trial court to “prepare amended abstracts of judgment
reflecting defendant’s determinate sentence is seven years, and his indeterminate
sentence is 50 years to life.” (People v. Phillips (Oct. 10, 2013, E055866) [nonpub. opn.]
(Phillips I).) On remand, defendant was sentenced in accordance with this court’s
opinion. Defendant again appeals, challenging the sentence on remittitur. We find no
error and affirm the judgment.
I
PROCEDURAL BACKGROUND1
A jury found defendant guilty of one count of willful, deliberate, premeditated
murder (Pen. Code,2 § 187, subd. (a); count 2), three counts of attempted willful,
deliberate, premeditated murder (§§ 664, 187, subd. (a); counts 3, 4 & 5), and one count
of assault with a deadly weapon (§ 245, subd. (a)(1); count 1). The jury found true that
(1) during the murder and one of the attempted murders, defendant discharged a firearm
causing death or great bodily injury to another person (§ 12022.53, subd. (d)); (2) during
the two other attempted murders, defendant discharged a firearm (§ 12022.53, subd. (c));
and (3) during the assault, defendant inflicted great bodily injury (§ 12022.7, subd. (a))
and personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). The trial
1 The substantive facts underlying the offenses are irrelevant to the issue on appeal and are therefore not recounted here. The facts underlying the offenses are recited in this court’s opinion in defendant’s prior appeal, case No. E055866. (See Phillips I, supra.)
2 All further statutory references are to the Penal Code unless otherwise indicated.
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court sentenced defendant to state prison for a determinate term of 47 years, and an
indeterminate term of 75 years to life, plus three consecutive life terms.
Defendant subsequently appealed, challenging the sufficiency of the evidence
supporting the three attempted murder convictions, and alleging ineffective assistance of
counsel. On appeal, this court reversed defendant’s three attempted murder convictions
(counts 3, 4, 5) and the associated enhancement allegations, and directed the trial court to
“prepare amended abstracts of judgment reflecting defendant’s determinate sentence is
seven years, and his indeterminate sentence is 50 years to life” and to “forward the
amended abstracts of judgment to the appropriate agencies.” (Phillips I, supra.)
On June 27, 2014, on return of the remittitur from this court, the trial court
dismissed the three attempted murder counts and the associated enhancements, and
resentenced defendant as follows: a determinate term of three years on count 1 for
assault with a deadly weapon (§ 245, subd. (a)(1)), plus an additional three years for the
great bodily injury (§ 12022.7) enhancement and an additional term of one year for the
weapon use (§ 12022, subd. (b)(1)) enhancement; and an indeterminate term of 25 years
to life on count 2 for first degree murder (§ 187, subd. (a)), plus an indeterminate term of
25 years to life for the firearm use (§ 12022.53, subd. (d)) enhancement. The total
determinate term was seven years, and the total indeterminate term was 50 years to life.
With regard to custody credits, because it did not have updated credit information
for defendant, the trial court referred the matter to the probation department for
calculation of credits. The trial court ordered the superior court clerk to prepare an
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amended abstract of judgment and send it to the Department of Corrections and
Rehabilitation.
On July 2, 2014, an amended abstract of judgment was prepared reflecting
defendant’s determinate sentence only, and failed to indicate any credit for time served
with the notation “refer to probation department to calculate total credits for time served.”
On August 18, 2014, a timely notice of appeal was filed.
On December 23, 2014, the superior court issued two new abstracts of judgment.
One abstract of judgment indicated an indeterminate term of 50 years to life on count 2,
but misidentified the crime of conviction as assault with a deadly weapon instead of first
degree murder. The second abstract of judgment was identical to the one issued in July
2014, indicating a determinate term of seven years on count 1 with a notation that the
case was referred to the probation department to calculate total credit for time served.
On February 12, 2015, appellate counsel sent letters to the trial court noting the
errors in the abstracts of judgment and requested the court to correct the errors.
Accordingly, on February 19, 2015, the superior court issued two new corrected abstracts
of judgment. The first indicated a determinate term of seven years for count 1 and the
enhancement, and also included total credits of 2,102 days (1,828 actual plus 274
conduct) for time served; the second indicated an indeterminate term of 50 years to life
for count 2 and the enhancement, and correctly identified the crime of conviction as first
degree murder.
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II
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the case, a summary of the facts and potential arguable issues, and requesting this court
conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the entire record for potential error and find no arguable error
that would result in a disposition more favorable to defendant.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's resentencing judgment after finding no arguable error upon independent review of the record pursuant to People v. Wende.
Issues
Whether the trial court erred in its resentencing of the defendant following remand.
Whether there are any arguable issues on appeal following the trial court's correction of clerical errors in the abstracts of judgment.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We find no error and affirm the judgment.”
“Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.”