Opinion
2d Crim. No. B297896
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN PHILLIPS, Defendant and Appellant.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. TA130215)
(Los Angeles County)
Kevin Phillips appeals following a remand for resentencing. Appellant and codefendants Marvin L. Vital and Christopher Ladd were convicted by a jury of the first-degree special-circumstance gang murder of Markice Brider (Pen. Code, §§ 187, subd. (a), 189, 190.2, subd. (a)(22)). The jury also found true allegations as to each defendant that Vital, a principal, personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (b), (c), (d), & (e)(1)). All three defendants were sentenced to life without the possibility of parole, plus an enhancement of 25 years to life pursuant to section 12022.53, and Vital was also sentenced to a consecutive seven-year term on the firearm possession count.
All statutory references are to the Penal Code unless otherwise stated.
In appellant's prior appeal from the judgment, we struck a parole revocation fine erroneously imposed against him and remanded for the trial court to exercise its discretion whether to strike his section 12022.53 enhancement in light of Senate Bill No. 620 (2017-2018 Reg. Sess.), which went into effect on January 1, 2018. (People v. Phillips (June 20, 2018, B272498 [nonpub. opn.].) Following a hearing on remand, the court declined to strike the enhancement. Appellant contends the court's ruling amounts to an abuse of discretion. We disagree and affirm.
STATEMENT OF FACTS
We reiterate verbatim the facts set forth in our prior unpublished opinion, of which we take judicial notice. (Evid. Code, §§ 452, subd. (a), 459, subd. (a); Cal. Rules of Court, rule 8.1115(b).)
The Shootings of Vital
In 2013, appellants were members of the Grape Street Crips criminal street gang, whose territory includes the area in and around the Jordan Downs housing complex on 101st Street in Watts. On August 4, Vital was shot in the arm as he was arriving at his residence. Six expended .45-caliber shell casings were found on the street near his house. When questioned by the police, Vital was uncooperative and declined to offer any information regarding the identity of the shooter or shooters.
Unless otherwise indicated, all further date references are to the year 2013.
On September 23, Ladd's mother, Crystal Hodges, rented a Hyundai Accent. Hodges rented the vehicle at about 11:45 a.m., "loaned" it to Ladd shortly thereafter, and he returned it to her at about 8:00 p.m. that night.
At about 2:30 p.m. that same day, Vital was sitting outside his girlfriend's apartment in Jordan Downs. A car drove up and one or more of its occupants fired several gunshots at Vital, who suffered a grazing wound to his head. Vital went to the hospital for treatment. When officers arrived at the hospital to speak with Vital about the incident, he ripped off his monitoring equipment and went home. At about 4:00 or 4:30 p.m., Vital's neighbor Tiffany Denham called her friend Tiffany Cooley and said she had heard Vital say "'I'm gonna go get those niggas.'"
That same day, Phillips left his house in a blue Chrysler minivan that belonged to his live-in girlfriend Laneshia Harbour. That afternoon, Phillips told Harbour he was going to the hospital to visit a friend who had been shot.
The Shooting of Kevin White
Kevin White was a member of the Bounty Hunter Bloods gang, a Grape Street Crips rival, whose territory includes the area in and around the Nickerson Gardens housing complex on 114th Street in Watts. On September 23 at about 7:25 p.m., White was in the front yard of his residence at Nickerson Gardens when a Chevrolet Tahoe pulled up to the curb. White briefly approached the Tahoe, then turned and ran back into his yard. Two men got out of the Tahoe and repeatedly shot White, killing him. Four bullets recovered from White's body and eleven casings recovered from the scene were fired by a 9-millimeter handgun, and two other casings recovered from the scene were fired by a .45-caliber handgun.
White's neighbor, Ashley Green, witnessed the shooting and was shot in the leg after she called out to White. Latrice Antwine, who was at White's residence when the shootings occurred, saw a grayish blue minivan stopped in the street with the passenger side doors opened. Someone got in the minivan and it sped away with the passenger door still open.
The Shooting of Markice Brider
Markice Brider was a member of the rival P.J. Watts Crips gang, whose territory includes the area in and around the Imperial Courts housing complex on 114th Street in Watts. On the evening of September 23, Brider was visiting his girlfriend Latrisian McMeans at her apartment in Imperial Courts. At about 7:35 p.m., Brider walked out of McMeans's apartment and several gunshots rang out. McMeans looked outside and saw three men getting into a minivan she later identified as Harbour's. Two of the men entered the minivan through the sliding door on the rear passenger side, while the other got in the front passenger seat. McMeans saw one of the men put a weapon into his waistband. Before the minivan drove off, McMeans heard one of the men say, "Fuck you, nigga" and "[t]his is Grape," which she interpreted as a reference to the Grape Street gang.
McMeans ran outside and found Brider, who had been shot six times. A gunshot wound to his head was fatal. The four bullets recovered from his body and four casings recovered from the scene of the shooting were fired by a 9-millimeter handgun, and four additional casings recovered from the scene were fired by a .45-caliber handgun.
The Stop and Search of the Minivan and Phillips' Arrest
At about 8:50 p.m. that night, Los Angeles Police Officer Roberto Yanez was on patrol less than a mile from Jordan Downs when he saw a blue Chrysler minivan pulling away from a curb with the rear passenger sliding door open. Officer Yanez activated his lights and conducted a traffic stop of the minivan. After conducting the stop, the officer also noticed that one of the minivan's rear brake lights was not working.
Phillips was driving the minivan and fellow Grape Street Crips members Donte Welch and Thomas Bramlett-Payton were in the front and rear passenger seats, respectively. After additional officers arrived, Phillips was ordered out of the minivan and Officer Yanez asked him for his driver's license. Phillips responded that his identification was inside the minivan on or near the driver's seat. The officer checked the driver's seat but did not find Phillips' identification. As Officer Yanez returned to the area from which the minivan had pulled away, Officer Noel Sanchez began looking around the driver's seat for Phillips's identification and saw a handgun in plain view under the driver's seat.
Phillips, Welch, and Bramlett-Payton were arrested and Phillips' cellphone was seized from his person. A loaded .40-caliber handgun and a loaded .45-caliber handgun were found under the minivan driver's seat. Vital's cellphone was found behind the front passenger seat. It was subsequently determined that the .45-caliber handgun matched the expended .45-caliber casings recovered from the scenes of the White and Brider shootings. McMeans identified the minivan as the one she had seen when Brider was shot, and Antwine said it was similar to the one involved in White's shooting.
Video Surveillance Camera Evidence
Jordan Downs, Nickerson Gardens, and Imperial Courts all have police-monitored video surveillance and license plate recognition cameras. Recordings from these cameras on the day of the shootings were played at trial. At about 4:40 p.m. on September 23, the cameras at Jordan Downs recorded images of a blue minivan pulling into the parking lot, followed shortly thereafter by the rented Hyundai. Ladd is then shown exiting the Hyundai and walking to the occupants of the minivan, which included Phillips and an unidentified individual. Ladd then walked away in one direction while Phillips and the unidentified individual walked toward Vital's apartment. At 4:46 p.m., Ladd returned to the Hyundai with an unknown male and drove away.
At 5:07 p.m., Phillips returned to the parking lot accompanied by Welch and Bramlett-Payton. About 20 minutes later, an unknown individual approached Phillips and handed him a white object. At about 6:27 p.m., Phillips drove away in the minivan along with two other men. When the minivan drove away, it had a license plate.
Between 7:14 p.m. and 7:16 p.m., the minivan and Hyundai were seen traveling together in Nickerson Gardens. The minivan no longer had a license plate and only one of its taillights was operable. The cameras lost sight of the vehicles at about 7:25 p.m. Shortly thereafter, the vehicles could be seen driving at a high rate of speed on Compton Avenue in Nickerson Gardens.
At 7:35 p.m., the minivan and Hyundai were seen traveling together east on 114th Street in Imperial Courts. The minivan stopped in front of Brider's residence and the Hyundai drove around the minivan. One of the men in the minivan got out with a gun in his left hand and shot Brider. Two other men got out of the minivan and also fired at Brider as he was lying on the ground. All three men got back into the minivan and drove off. The Hyundai made a u-turn and followed the minivan.
At the time of the shooting, Vital had limited mobility in his right hand as a result of his own shooting in August.
Additional Evidence
Cellular telephone records indicated that at 6:40 p.m. on the day of the shootings, Phillips sent Harbour a text stating that a friend had been shot. At about 6:54 p.m., Vital's cellphone sent a text to Phillips' phone stating, "come out." Vital and Ladd's cellphones had also utilized cellular towers in the vicinity of Brider's murder around the time he was shot.
A photograph found on Vital's cellphone (which was recovered from the minivan) depicted a .45-caliber handgun that resembled one of the guns found in the minivan. Vital's fingerprints were also found on the window of the minivan's rear passenger sliding door. In May 2015, while executing a search warrant at a Grape Street Crips hangout, officers found the 9-millimeter handgun used in the shootings of White and Brider.
Gang Expert Testimony
Los Angeles Police Officer Francis Coughlin testified as the prosecution's gang expert. The Grape Street Crips' primary activities include murder, robbery, illegal firearm possession, and narcotic sales. When the shootings occurred, appellants were all documented members of the gang. For the past 20 years, the Grape Street Crips have been at war with the P.J. Watts Crips and the Bounty Hunter Bloods. The latter two gangs were united against the Grape Street Crips. When presented with a hypothetical tracking the facts of the case, Officer Coughlin opined that the shootings were committed for the benefit of the Grape Street Crips because they were in retaliation for an attack on one of its members. When a gang commits an act of violence against a rival gang member, that member's gang typically retaliates with a greater degree of violence.
DISCUSSION
Appellant contends the court abused its discretion on remand by declining to strike his section 12022.53 enhancement. We conclude otherwise.
When appellant was initially sentenced, the trial court had no authority to strike his section 12022.53 enhancement. Effective January 1, 2018, however, section 12022.53 was amended to permit trial courts to strike enhancements for crimes in which a firearm was personally and intentionally discharged causing death. (§ 12022.53, subds. (b), (c), (d), & (e)(1).) Subdivision (h) of section 12022.53 now states that "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
The trial court's refusal to strike or dismiss an enhancement allegation for purposes of sentencing is reviewed for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) Applying this standard of review, we must defer to the trial court's decision unless appellant met his burden of showing that the ruling "is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) Absent such a showing, the court is presumed to have acted to achieve legitimate sentencing objectives and its discretionary decision to impose a particular sentence will not be disturbed on appeal. (Id. at pp. 376-377.)
At the resentencing hearing, appellant's attorney argued that the court should exercise its discretion to strike his section 12022.53 enhancement because the evidence against him was largely circumstantial, he did not personally possess or discharge a firearm, and he fully cooperated after the police pulled him over. Counsel also argued that the enhancement "is arbitrary, it's cruel, and it's useless" because appellant had been sentenced to life without the possibility of parole (LWOP).
At the conclusion of the hearing, the court stated: "After careful consideration of what is available in the discretion of the court, considering the factors that are already on the record and . . . with regards to mitigation and aggravation that the court used to sentence [appellant], . . . and also supplemented by the arguments and what . . . would be described by the defense as minimum participation by [appellant] . . . , the court is choosing not to exercise its discretion and not to change [appellant's] sentence . . . . "
The court did not abuse its discretion in declining to strike the enhancement. In arguing otherwise, appellant asserts that "[t]reating [him] the same as the actual shooters is not consistent with fundamental fairness or the interest[s] of justice." We are not persuaded. "[S]ection 12022.53, subdivision (e)(1), 'is expressly drafted to extend the enhancement for gun use in any enumerated serious felony to gang members who aid and abet that offense in furtherance of the objectives of a criminal street gang.' [Citation.] This subdivision provides a 'clear expression of legislative intent' [citation] to 'severely punish aiders and abettors to crimes by a principal armed with a gun committed in furtherance of the purposes of a criminal street gang. It has done so in recognition of the serious threats posed to the citizens of California by gang members using firearms.' [Citation.]" (People v. Garcia (2002) 28 Cal.4th 1166, 1172.)
Appellant also offers as he did below that the enhancement "serves no purpose" because he was sentenced to LWOP. He claims that "[b]ecause appellant already is imprisoned for the remainder of his life, the enhancement imposes no actual punishment on [him], does not deter him or others from committing crime and does not protect society or increase public safety." For the first time in his reply brief, he refers to Justice Chin's concurring opinion in People v. Cleveland (2004) 32 Cal.4th 704. In that case, Justice Chin suggested the Legislature may want to consider providing "that if the trial court imposes a sentence of death or LWOP on any count, it need not impose any other sentence, including enhancements." (Id. at p. 770 [conc. opn. of Chin, J.].) The Legislature, however, has yet to do so. Moreover, because appellant is serving an LWOP sentence, he suffers no actual prejudice from the imposition of an additional enhancement of 25 years to life. Any error in declining to strike the enhancement is thus harmless. (See People v. Garnica (1994) 29 Cal.App.4th 1558, 1564 [trial court did not err in imposing multiple LWOP sentences, and any error in imposing more than one such sentence would not warrant reversal because the defendant suffered no prejudice].)
For the first time on appeal, appellant also claims the section 12022.53 enhancement was imposed in violation of rule 4.420(c) of the California Rules of Court (rule 4.420(c)). According to appellant, the rule dictates that "the trial court could properly use the fact of the gang crime to impose the [LWOP] term only if the court struck the firearm enhancement, which also was predicated upon the gang finding." (Citation omitted.)
This claim was not raised below and is accordingly forfeited. In any event, appellant misreads rule 4.420(c). The rule provides in pertinent part that "[t]o comply with section 1170 (b), a fact charged and found as an enhancement may be used as a reason for imposing a particular term only if the court has discretion to strike the punishment for the enhancement and does so." (Italics added.) Section 1170, subdivision (b) addresses the trial court's authority to select the low, middle, or upper term in imposing a determinate sentence. As the statute makes clear, "the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." (§ 1170, subd. (b).) Rule 4.420(c) merely reiterates this limitation. The rule has no application where, as here, the court imposes an LWOP term. (See People v. Coyle (2009) 178 Cal.App.4th 209, 219 [recognizing that "LWOP's are indeterminate terms with no minimum terms"].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
Ricardo R. Ocampo, Judge
Superior Court County of Los Angeles
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.