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Filed 7/24/15 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

v.

EMMANUEL PHILLIPS,

Defendant and Appellant.

E061757

(Super.Ct.No. RIF145538)

OPINION

APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. 

Affirmed.

David McNeil Morse, under appointment by the Court of Appeal, for Defendant 

and Appellant.

No appearance by Plaintiff and Respondent.

This is defendant and appellant Emmanuel Phillips’ second appeal following a 

remand for resentencing. In his first appeal, case No. E055866, this court reversed 

defendant’s attempted murder convictions (counts 3, 4, & 5) and the associated 
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enhancements, and directed the trial court to “prepare amended abstracts of judgment 

reflecting defendant’s determinate sentence is seven years, and his indeterminate 

sentence is 50 years to life.” (People v. Phillips (Oct. 10, 2013, E055866) [nonpub. opn.]

(Phillips I).) On remand, defendant was sentenced in accordance with this court’s 

opinion. Defendant again appeals, challenging the sentence on remittitur. We find no 

error and affirm the judgment.

I

PROCEDURAL BACKGROUND1

A jury found defendant guilty of one count of willful, deliberate, premeditated 

murder (Pen. Code,2 § 187, subd. (a); count 2), three counts of attempted willful, 

deliberate, premeditated murder (§§ 664, 187, subd. (a); counts 3, 4 & 5), and one count 

of assault with a deadly weapon (§ 245, subd. (a)(1); count 1). The jury found true that 

(1) during the murder and one of the attempted murders, defendant discharged a firearm 

causing death or great bodily injury to another person (§ 12022.53, subd. (d)); (2) during 

the two other attempted murders, defendant discharged a firearm (§ 12022.53, subd. (c)); 

and (3) during the assault, defendant inflicted great bodily injury (§ 12022.7, subd. (a))

and personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). The trial 

 

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 The substantive facts underlying the offenses are irrelevant to the issue on 

appeal and are therefore not recounted here. The facts underlying the offenses are recited 

in this court’s opinion in defendant’s prior appeal, case No. E055866. (See Phillips I, 

supra.)

2 All further statutory references are to the Penal Code unless otherwise indicated.
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court sentenced defendant to state prison for a determinate term of 47 years, and an 

indeterminate term of 75 years to life, plus three consecutive life terms.

Defendant subsequently appealed, challenging the sufficiency of the evidence 

supporting the three attempted murder convictions, and alleging ineffective assistance of 

counsel. On appeal, this court reversed defendant’s three attempted murder convictions 

(counts 3, 4, 5) and the associated enhancement allegations, and directed the trial court to 

“prepare amended abstracts of judgment reflecting defendant’s determinate sentence is 

seven years, and his indeterminate sentence is 50 years to life” and to “forward the 

amended abstracts of judgment to the appropriate agencies.” (Phillips I, supra.)

On June 27, 2014, on return of the remittitur from this court, the trial court 

dismissed the three attempted murder counts and the associated enhancements, and 

resentenced defendant as follows: a determinate term of three years on count 1 for 

assault with a deadly weapon (§ 245, subd. (a)(1)), plus an additional three years for the 

great bodily injury (§ 12022.7) enhancement and an additional term of one year for the 

weapon use (§ 12022, subd. (b)(1)) enhancement; and an indeterminate term of 25 years 

to life on count 2 for first degree murder (§ 187, subd. (a)), plus an indeterminate term of 

25 years to life for the firearm use (§ 12022.53, subd. (d)) enhancement. The total 

determinate term was seven years, and the total indeterminate term was 50 years to life.

With regard to custody credits, because it did not have updated credit information 

for defendant, the trial court referred the matter to the probation department for 

calculation of credits. The trial court ordered the superior court clerk to prepare an 
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amended abstract of judgment and send it to the Department of Corrections and 

Rehabilitation.

On July 2, 2014, an amended abstract of judgment was prepared reflecting 

defendant’s determinate sentence only, and failed to indicate any credit for time served 

with the notation “refer to probation department to calculate total credits for time served.”

On August 18, 2014, a timely notice of appeal was filed.

On December 23, 2014, the superior court issued two new abstracts of judgment. 

One abstract of judgment indicated an indeterminate term of 50 years to life on count 2, 

but misidentified the crime of conviction as assault with a deadly weapon instead of first 

degree murder. The second abstract of judgment was identical to the one issued in July 

2014, indicating a determinate term of seven years on count 1 with a notation that the 

case was referred to the probation department to calculate total credit for time served.

On February 12, 2015, appellate counsel sent letters to the trial court noting the 

errors in the abstracts of judgment and requested the court to correct the errors.

Accordingly, on February 19, 2015, the superior court issued two new corrected abstracts 

of judgment. The first indicated a determinate term of seven years for count 1 and the 

enhancement, and also included total credits of 2,102 days (1,828 actual plus 274 

conduct) for time served; the second indicated an indeterminate term of 50 years to life 

for count 2 and the enhancement, and correctly identified the crime of conviction as first 

degree murder.
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II

DISCUSSION

After defendant appealed, upon his request, this court appointed counsel to 

represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of 

the case, a summary of the facts and potential arguable issues, and requesting this court 

conduct an independent review of the record.

We offered defendant an opportunity to file a personal supplemental brief, but he 

has not done so.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have 

independently reviewed the entire record for potential error and find no arguable error 

that would result in a disposition more favorable to defendant. 

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MILLER

J.