People v. Phillips CA3

Filed 8/21/23 P. v. Phillips CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C097264

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE- 2021-0013307) v.

ANTONIO MONTRELL PHILLIPS,

Defendant and Appellant.

A jury found defendant Antonio Montrell Phillips guilty of assault with a deadly weapon (firearm) (Pen. Code, § 245, subd. (a)(2)),1 with a true finding on the enhancement alleging that he personally used a firearm (§ 12022.5, subd. (a)), as well as misdemeanor battery (§ 242) and grossly negligent discharge of a firearm (§ 246.3, subd. (a)).

1 Undesignated statutory references are to the Penal Code.

1

The trial court found true that defendant had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and was subject to a five-year sentence enhancement for that same prior (§ 667, subd. (a)). At sentencing, the court granted defendant’s request to dismiss the strike prior and dismiss the prior serious felony enhancement. The court imposed the low term of two years in prison for assault with a firearm as well as the low term of three years for the firearm enhancement and added eight months (one-third the middle term) for negligent discharge of a firearm. The trial court imposed no additional time for the battery charge; thus, defendant’s aggregate sentence was five years eight months in custody. Defendant timely appealed; the case was fully briefed on May 11, 2023, and assigned to this panel shortly thereafter. On appeal, defendant contends that: (1) defense counsel rendered ineffective assistance by failing to request dismissal of the firearm enhancement, and (2) the court erred in imposing fines and fees without determining defendant’s ability to pay, citing People v. Dueñas (2019) 30 Cal.App.5th 1157. Defendant also argues ineffective assistance of counsel as to the Dueñas issue. As we will explain, we disagree with defendant’s contentions and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In the early hours of November 18, 2021, five or six individuals attacked Marcus Crumb outside a convenience store. During the incident, defendant pointed a gun at Soukoun Hin’s head and then struck him twice with the gun. He also fired the gun multiple times into the air. Defendant testified that he operates a hot dog cart and would from time to time give hot dogs to Crumb, who was homeless. On the night of November 18, 2021, defendant had fallen asleep in his car and was awakened by a commotion. Defendant