P. v. Phillips CA1/3

Filed 3/22/13 P. v. Phillips CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, A136896 v. KARL PHILLIPS, (City & County of San Francisco Super. Ct. No. 216220) Defendant and Appellant.

Defendant Karl Phillips appeals his conviction for second degree robbery, based upon a guilty plea entered after the trial court had denied his motion to suppress evidence. His appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 raising no issues. Defendant was informed of his right to file a supplemental brief, which he has not done. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment. Factual and Procedural History On July 28, 2011, the San Francisco District Attorney filed a first amended complaint alleging that defendant committed robbery in the second degree (Pen. Code, § 211),1 and that he inflicted injury on a dependent adult likely to cause great bodily injury (§ 368, subd. (b)(1)). The complaint further alleged that defendant suffered a prior conviction for second degree robbery (§§ 667, subd. (d) & (e), 1170.12, subd. (b) & ( c)),

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

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that the prior conviction was a serious felony (§ 667, sub. (a)(1)), and that it constituted a prison prior (§ 667.5, subd. (b)). Pursuant to section 1538.5, defendant moved to suppress all defendant‟s statements, all physical evidence seized from defendant upon arrest, and all observations by police officers, including the identification of defendant. At the preliminary hearing, the victim, Jack Burns, was the only witness to testify. He testified that around 9:00 a.m. on June 5, 2011, he was walking on Willow Street when four men approached him, one of whom he identified as defendant. Defendant asked him, “Are you looking for a lady?” and Burns responded “yes.” After accompanying defendant and the three other men to a store to purchase alcohol, the group walked further down Willow Street to a point at which defendant and the others pushed Burns onto the ground. Defendant then took his iPod, Diamondbacks hat, and iPhone. Defendant told Burns he had a knife and that Burns should not tell anyone what had occurred. The men searched through Burns‟ pockets before leaving. Burns identified himself in a still shot taken from a July 5 surveillance videotape which showed three people walking down Willow Street. At the conclusion of the preliminary hearing, defense counsel requested a ruling on the motion to suppress evidence. The court responded, “there is nothing for me to suppress at this time,” “that‟s not an issue before me” as there “are no statements that are being introduced. There is no physical evidence that is being introduced. And there are no observations by the police officers being introduced. The only evidence before me is the testimony of the victim who has identified the defendant in court.” 2 The trial court held defendant to answer on all counts. On April 11, 2012, defendant filed another motion to suppress, seeking to suppress the same evidence as in the earlier motion. Officer Kevin Coleman and Inspector Brian Danker were called as witnesses at the hearing on the motion. Officer Coleman testified that on June 25, 2011, he was with Officer Guiney and Officer Byrne when they saw