California Court of Appeal Apr 26, 2023 No. E079235Unpublished
Filed 4/26/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079235
v. (Super.Ct.No. FVA013693)
CHRISTY CLINTON PHILLIPS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. Affirmed.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Christy Clinton Phillips appeals the San Bernardino
County Superior Court’s denial of her motion made pursuant to Penal Code section 1170
1
seeking a second hearing under People v. Franklin (2016) 63 Cal.4th 261, and its denial
of her section 1172.6 petition for resentencing.1 We will affirm.
BACKGROUND
In January 2002, when defendant was 16 years old, a jury convicted her of first
degree murder (§ 187, subd. (a), count 1) and torture (§ 206, count 2) of an elderly
woman, crimes defendant committed when she was 15. The jury also convicted
defendant of first degree burglary of the victim’s home (§ 459, count 3) and found true
the allegations she used deadly weapons when torturing and murdering the victim
(§ 12022, subd. (b)(1)). The court sentenced her to 25 years to life for the murder, a
consecutive term of life with the possibility of parole for the torture, and one year for one
of the weapon enhancements. It also imposed and stayed a one-year sentence on the
other enhancement and an upper term of six years for the burglary.
On March 16, 2022, defendant filed a petition for resentencing pursuant to section
1172.6. Two weeks later, she filed an amended petition (i) seeking resentencing pursuant
to section 1170 because, due to changes to the Penal Code made by Senate Bill 567
(Stats. 2021, ch. 731, eff. Jan. 1, 2022), the trial court was not permitted to impose the
upper term for the burglary conviction, and (ii) requesting a hearing pursuant to People v.
Franklin, supra, 63 Cal.4th 261 (Franklin hearing) on the grounds she had been talked
1 Section 1170.95 was renumbered as section 1172.6 without change in the text, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) For the sake of simplicity, we refer to the provision by its new numbering. All further statutory references are to the Penal Code.
2
into waiving her appearance at her first Franklin hearing and her counsel’s assistance at
that hearing had been ineffective.
The trial court denied defendant’s amended petition in a written order. It
explained it was not authorized to entertain resentencing relief for defendant because she
had been convicted and committed to the custody of the Secretary of the Department of
Corrections and Rehabilitation for more than 120 days, and neither the Secretary, the
Board of Parole Hearings, or the district attorney of the county in which she was
convicted had recommended recall and resentencing of previously ordered sentence and
commitment.
The court also found defendant is not entitled a second section 1203.01 Franklin
evidence preservation hearing. It noted a Franklin hearing had taken place in September
2019, which provided defendant the opportunity to supplement the record with
information relevant to her eventual youth offender parole hearing. Defendant had
waived her personal presence and the court found that, in all events, her lack of
attendance at the hearing did not have legal significance because (i) section 1203.01 does
not contemplate a defendant’s personal presence, and (ii) the hearing, which took place
nearly 20 years after defendant’s conviction, cannot be considered a critical stage of the
proceedings.
Defendant timely noticed this appeal from the denial of her amended petition and
we appointed appellate counsel to represent her.
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DISCUSSION
Defendant’s counsel filed a brief under the authority of People v. Wende (1979) 25
Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S 738. The brief sets forth
statements of the case and facts, and requests this court to independently review the entire
record on appeal. Counsel also suggests three potentially arguable issues:
(i) Whether the trial court erred in denying defendant’s request for a new Franklin
hearing; (ii) whether the court erred in finding that defendant was not eligible for relief
under subdivision (d)(1) of section 1170; and (iii) whether the categorical exclusion from
resentencing relief violates equal protection.
We offered defendant an opportunity to file a personal supplemental brief, which
she has not done.
Counsel filed a brief pursuant to Wende, supra, 25 Cal.3d 436, before the Supreme
Court’s opinion in People v. Delgadillo (2022) 14 Cal.5th 216 became final. Because the
opening brief and our notice to defendant referred to Wende, we conducted independent
review of the record on appeal. (People v. Kelly (2006) 40 Cal.4th 106.) We found no
arguable issues.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
CODRINGTON J.
FIELDS J.
5
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's motion for a second Franklin hearing and her petition for resentencing under Penal Code section 1172.6, finding no arguable issues upon independent review.
Issues
Whether the trial court erred in denying defendant’s request for a new Franklin hearing.
Whether the court erred in finding that defendant was not eligible for relief under subdivision (d)(1) of section 1170.
Whether the categorical exclusion from resentencing relief violates equal protection.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court also found defendant is not entitled a second section 1203.01 Franklin evidence preservation hearing.”