P. v. Phillips

Filed 8/10/07 P. v. Phillips CA2/1

Opinion on remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEALS from judgments of the Superior Court of Los Angeles County, Martin Herscovitz, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Wylie Sylvester Phillips, Jr.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant Eddie Lee Nash.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, and Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.

Wylie Phillips and Eddie Nash appeal from the judgments entered following a joint jury trial in which each was convicted of robbery and assault, with further findings of firearm use as to Phillips (during the assault) and principal armed as to Nash (based on Phillipss firearm use during the assault). Nash was also convicted of driving a vehicle without the owners consent. (Phillips, Nash, and codefendant Ryan Gandy, who is not a party to this appeal, were acquitted of several additional charges.)^[1] In bifurcated bench proceedings, Phillips and Nash were each found to have suffered a prior felony conviction within the meaning of the Three Strikes law. Phillips and Nash contend they were denied a fair trial based on the trial courts comment during voir dire regarding the privilege against self-incrimination and that they were improperly sentenced to upper terms in violation of Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531]. We affirm.

BACKGROUND

On the evening of January 19, 2003, Los Angeles police officers, working in plain clothes and driving unmarked vehicles, were engaged in a surveillance in Reseda when they saw defendants in front of an apartment building.^[2] Gandy got into an Oldsmobile sedan parked in front of the building and drove a short distance to where a Toyota van was parked. Phillips and Nash walked over to join Gandy. Once there, Phillips and Nash got into the van and drove off without the owners consent, with the Oldsmobile following behind. The two vehicles proceeded in a circuitous route for several blocks and parked. Gandy then got into the van with Phillips and Nash. After making several turns, the van was driven to a nearby supermarket and parked in the lot. Defendants movements were observed by officers on the ground and in a police helicopter.

Gandy and Phillips got out of the van and went into the market. With faces obscured and holding firearms, they demanded that the register be opened and were given approximately $480 from the register. Gandy and Phillips then left the market and got into the van, which was driven to where the Oldsmobile was parked. Defendants got out of the van and approached the Oldsmobile.

At that point, officers drove up to defendants location. Phillips pointed a gun at one of the officers and fired it. (This conduct gave rise to the assault conviction and finding of gun use by Phillips.) The back of the Oldsmobile was rammed by a police vehicle and defendants fled, Gandy and Nash in one direction and Phillips in another. Officers pursued, and more shots were fired. A perimeter was set up around the block where the van and the Oldsmobile were parked. With the assistance of helicopter illumination and a K-9 unit, the three defendants were found in separate locations within the perimeter.

When arrested, Gandy was bleeding from a gunshot wound to his shoulder. Phillips had $253 in his pants pockets. Further investigation of the area yielded two handguns, two white T-shirts, two blue T-shirts, black sweatpants, a bandana, and a glove. Defendants hands tested negative for gunshot residue.

Defendants did not present any evidence.

DISCUSSION

1. Reference to Privilege Against Self-incrimination

During voir dire, counsel for Nash asked a prospective juror, Suppose the defendant chooses not to testify. Now, you have heard the whole case, and here the defendant doesnt get up and testify. He may not put on any evidence at all. You still have a 50/50 feeling. How do you vote now? When the prospective juror responded, Still not guilty, counsel continued, Is there anybody on this panel who has the feeling that if before you could vote for not guilty on a case, you would insist that the defendant give you his side of the story? Counsel then asked another prospective juror if she would require that the defendant get up and give you his side of the story, before you can vote for not guilty. Would you?

Immediately following that question, the court stated, Let me interrupt you for a second, and address [the prospective juror] on that general issue. [] If a criminal defendant in a criminal case chooses to exercise his privilege against self-incrimination and right to remain silent, and not testify in this case, I will tell you that he has that constitutional right and that you cannot hold that against him. You cannot even discuss it or allow it to be discussed during deliberations. [] So, if that is the state of the case, would you hold that against those defendants?

Nash soon requested a mistrial, arguing that the court said the defendant cannot be compelled to incriminate himself. [] And I think the instruction says that he cant be compelled to testify, and I think by implication you have told the jurors that when defendants testify, they incriminate themselves. Phillips joined in the mistrial request. The request was denied, but during the course voir dire the court stated, Several times myself and the attorneys have alluded to certain principles of law during the jury selection process. Obviously, no one was reading from our book of jury instructions that will be referred to at the end of the case. So keep in mind that all references to the law, either said by myself or the attorneys, were merely paraphrases. But when the case is finally submitted to you, you will receive the law in its exact wording.

When the jury was ultimately instructed, at defendants request CALJIC No. 2.60 was modified to delete the first sentence (A defendant in a criminal trial has a constitutional right not to be compelled to testify) and substitute in its place the words, A defendant in a criminal trial need not testify. (The court refused a request to further modify the instruction to include the admonition that the trial courts previous statement that defendant did not have to incriminate himself by testifying did not mean to imply that a defendant would incriminate himself if he chose to testify.)

The subject was again raised on Nashs motion for a new trial, in which Phillips joined. The motion was denied, the court noting that it had addressed the issue by the admonition given during voir dire and by modification of the jury instruction, and that its mention of the privilege against self-incrimination was no different than the situation in People v. Yu (1983) 143 Cal.App.3d 358 (where no error was found when the prosecutor referred to self-incrimination during voir dire).^[3]

Phillips and Nash contend they are entitled to a new trial because the trial courts comment during voir dire constituted an impermissible adverse comment under Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229] and its progeny on a defendants failure to testify. We disagree.

The Fifth Amendment to the United States Constitution states that no person shall be compelled in any criminal case to be a witness against himself. By giving an explanation of this concept to lay jurors that included the legal term of art self-incrimination, the trial court theoretically created the potential for the jurors to think that a defendants testimony would necessarily be incriminatory. But we perceive this potential, which is only tangentially related to a prohibited comment on the failure to testify, to be extremely slight and thus a wholly inadequate basis upon which to reverse Phillipss and Nashs convictions. (See People v. Yu, supra, 143 Cal.App.3d at p. 375.) In addition, any potential for misunderstanding was eliminated when the trial court explained that its paraphrase was not the law, and the jury was properly instructed in a manner that left no room for a legitimate adverse inference to be drawn from Phillipss and Nashs failure to testify. Accordingly, their argument must be rejected.

2. Sentencing

Upper term sentences were imposed on Phillips and Nash. As to Phillips, the court referred to four prior juvenile petitions that were sustained for burglary in 1995, for 10851 of the Vehicle Code in 1996, in 1997 grand theft of an automobile, in 1997 burglary. [] . . . The court finds that [Phillipss] prior adjudications as a juvenile are numerous and of increasing seriousness, proving that he is a serious danger to society. [] Further, the court will cite a factor in aggravation that he was on parole at the time of commission of this offense. As to Nash, the court stated that his juvenile history from 1993 to 1996, shows five petitions, sustained petitions, for crimes of [Penal Code section] 245(a)(1), receiving stolen property, failure to obey a court order, petty theft, burglary. So they are numerous and of increasing seriousness, showing the defendant is a danger to society. [] Another aggravating factor is the fact that he was on parole at the time of the commission of this offense and therefore his performance on parole was unsatisfactory.

In briefs filed in 2005, defendants contended that use of factors in aggravation of sentence that were not found by the jury was improper under Blakely v. Washington, supra, 542 U.S. 296 [124 S.Ct. 2531], although they also acknowledged that their argument had been rejected by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I). In the opinion previously filed in this case, we rejected defendants argument under the authority of Black I. (People v. Gandy et al., supra, B180517, at p. 6.)

Phillips and Nash later filed petitions for writs of certiorari in the United States Supreme Court. While the petitions were pending, that court decided Cunningham v. California (2007) ___U.S. ___ [127 S.Ct. 856] (Cunningham), and later granted Phillipss and Nashs certiorari petitions, vacated our judgment in People v. Gandy et al., and remanded the matter to us for further consideration in light of Cunningham. (Phillips v. California (Feb. 20, 2007, No. 05-10690) ___ U.S. ___ [127 S.Ct. 1230]; Nash v. California (Feb. 20, 2007, No. 05-11104) ___ U.S. ___ [127 S.Ct. 1232].) The California Supreme Court has now considered Cunningham issues in People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 Cal. Lexis 7604] (Black II) and People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___ [2007 Cal. Lexis 7606].

Black II teaches that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black II, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, at p.* 29].) It further teaches that the prior conviction exception includes not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. (Black II, at p. ___ [p.* 37].) Accordingly, based on recidivism in this record, Phillipss and Nashs contentions of sentencing error must be rejected.

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED.

MALLANO, J.

We concur:

SPENCER, P. J.

ROTHSCHILD, J.

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^[1]Gandy was a co-appellant in a prior appeal, in which we affirmed the judgments as to all three defendants. (People v. Gandy et al. (Dec. 21, 2005, B180517 [nonpub. opn.].) As explained below, the appeals of Phillips and Nash are being reconsidered on remand from the United States Supreme Court.

^[2]Unless otherwise specified, references to defendants include Gandy, as well as Phillips and Nash.

^[3]In Yu, the prosecutor stated the following: Now, [defense counsel] discussed at considerable length the defendants privilegeany defendants privilege against self-incrimination; not having to present evidence or testify. [] I want to talk about that, not as it relates to the defendant, but as it relates to a witness in this case. What he is talking about is the Fifth Amendment, the privilege against self-incrimination; you cant be compelled to give evidence that would incriminate yourself. [] That is the constitutional right the defendant has: that he cannot be compelled to testify; he doesnt have any burden of proof; he doesnt have to present any evidence. (143 Cal.App.3d at p. 374, fn. 5.)