Opinion
F086314
04-19-2024
THE PEOPLE, Plaintiff and Respondent, v. TOBIN WAYNE PHILLIPS, Defendant and Appellant.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF166772A, John W. Lua, Judge.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT
In a prior opinion (People v. Phillips (Nov. 28, 2022, F081859) [nonpub. opn.]), this court affirmed a judgment of conviction against Tobin Wayne Phillips (defendant) but remanded for resentencing. This appeal is taken from the judgment entered on remand. Defendant's appellate counsel makes no claims of error and requests our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having conducted such a review and finding no arguable issues, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We incorporate by reference the factual and procedural background set forth in People v. Phillips, supra, F081859. To briefly summarize, defendant was prosecuted for the brutal killing of an infant child. He was charged with murder (Pen. Code, § 187; count 1) and assault upon a child under eight years of age resulting in death (id., § 273ab, subd. (a); count 2). (All undesignated statutory references are to the Penal Code.) The murder was alleged to have been willful, deliberate, and premeditated (§ 189, subd. (a)), and to have involved the infliction of torture (§ 190.2, subd. (a)(18)). For enhancement purposes (§ 12022.1), it was alleged defendant committed the offenses while a felony charge was pending against him in the State of Washington.
A jury found defendant guilty as charged and sustained the enhancement allegation. Sentencing took place in October 2020. On count 1, the trial court imposed the mandatory sentence of life in prison without the possibility of parole (LWOP). The punishment for count 2 was a mandatory prison sentence of 25 years to life, which was stayed pursuant to section 654. As to both counts, a two-year enhancement was imposed under section 12022.1 but stayed pursuant to subdivision (d) of the same statute.
In the prior appeal, defendant successfully argued for retroactive application of Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518). "Previously, where ... section 654 applied, the sentencing court was required to impose the sentence that 'provides for the longest potential term of imprisonment' and stay execution of the other term. [Citation.] As amended by Assembly Bill 518, . section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence." (People v. Mani (2022) 74 Cal.App.5th 343, 379.) Based on this change in the law, our court remanded the cause for a new sentencing hearing.
The remittitur in People v. Phillips, supra, F081859 issued on February 17, 2023. On remand, defense counsel filed a sentencing memorandum requesting the trial court to discretionarily "stay execution of the LWOP sentence for murder and instead impose a 25 to life sentence on [count 2]." Defendant was resentenced on May 22, 2023. The trial court again imposed LWOP as the principal term and stayed the indeterminate life term. Punishment for the enhancement was also stayed. Defendant filed a timely notice of appeal and requested the appointment of counsel, which was granted.
In December 2023, defendant's appointed counsel filed an opening brief pursuant to Wende, supra, 25 Cal.3d 436, requesting independent review of the appellate record for arguable issues. Counsel attested to having given the required notice to defendant, providing him with a copy of the Wende brief, and informing defendant he had 30 days to submit his own supplemental brief. (See People v. Kelly (2006) 40 Cal.4th 106, 124.) On or about December 26, 2023, this court provided separate notice to defendant of his right to file a supplemental brief. Defendant never responded.
DISCUSSION
"[T]he constitutional right to assistance of counsel entitles an indigent defendant to independent review by the Court of Appeal when counsel is unable to identify any arguable issue on appeal. California's procedure for securing this right requires counsel to file a brief summarizing the proceedings and the facts with citations to the record, and requires the appellate court to review the entire record to determine whether there is any arguable issue." (People v. Kelly, supra, 40 Cal.4th at p. 119.)
"[A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel's professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment." (People v. Johnson (1981) 123 Cal.App.3d 106, 109; see People v. Garcia (2018) 24 Cal.App.5th 314, 325 [describing an arguable issue "as one that is not frivolous"].)
We have independently reviewed the record on appeal and are satisfied no arguable issues exist. Appellate counsel has fulfilled his obligations under Wende.
DISPOSITION
The judgment is affirmed.
Before Pena, Acting P. J., Meehan, J. and Snauffer, J.