People v. Phillips CA4/1 ( 2014 )

Filed 6/11/14 P. v. Phillips CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065784
Plaintiff and Respondent,
v. (Super. Ct. No. FSB1202282)
ANTHONY PHILLIPS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino, J. David
Mazurek, Judge. Affirmed.
Law Offices of John P. Dwyer and John P. Dwyer, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Anthony Phillips of second degree murder (Pen. Code,1 § 187,
subd. (a)) and found that Phillips had used a handgun during the commission of the
homicide (§ 12022.53, subds. (b), (c), (d)). The jury was unable to reach a verdict on the
gang allegation (§ 186.22, subd. (b)(1)(C)) and that allegation was dismissed.
The court sentenced Phillips to an indeterminate term of 40 years to life in prison.
Phillips appeals contending the trial court erred in failing to instruct the jury with
CALCRIM No. 3471,2 on its own motion, to the effect that an aggressor can recover the
right to self-defense if he stopped the aggression, communicated that fact to the victim
and gave the victim the chance to stop fighting.
Phillips contends that if we consider the issue forfeited for failure to request the
instruction, we should then find trial counsel was ineffective. We will find the trial court
1 All further statutory references are to the Penal Code unless otherwise specified.
2 CALCRIM No. 3471 provides: "A person who (engages in mutual combat/ [or
who] starts a fight) has a right to self-defense only if:
1. (He/She) actually and in good faith tried to stop fighting; [AND]
2. (He/She) indicated, by word or by conduct, to (his/her) opponent, in a way that
a reasonable person would understand, that (he/she) wanted to stop fighting and that
(he/she) had stopped fighting(;/.)

[AND 3. (He/She) gave (his/her) opponent a chance to stop fighting.]
If the defendant meets these requirements, (he/she) then had a right to self-defense
if the opponent continued to fight.
[However, if the defendant used only non-deadly force, and the opponent
responded with such sudden and deadly force that the defendant could not withdraw from
the fight, then the defendant had the right to defend (himself/herself) with deadly force
and was not required to try to stop fighting(,/ or) communicate the desire to stop to the
opponent[, or give the opponent a chance to stop fighting].]
[A fight is mutual combat when it began or continued by mutual consent or
agreement. That agreement may be expressly stated or implied and must occur before the
claim to self-defense arose.]"
2
did not have a duty to give such instruction as there is no substantial evidence to support
it. Thus we will not address the claim of ineffective assistance of counsel and affirm the
judgment.
STATEMENT OF FACTS
The respondent's statement of facts accurately sets forth the facts in the light most
favorable to the trial court decision and we incorporate it here.
On May 27, 2012, Latrice Cloyd attended a gathering at a San Bernardino
apartment complex. Cloyd argued with her boyfriend, Maurice Major, a West Covina
gang member. When Major hit Cloyd in the face with a closed fist, she walked across the
street and called 911 to report the assault. When she reported the assault, Cloyd stated
that Major had a gun and drugs. Cloyd testified that she lied to the 911 operator about
the gun and drugs because she wanted to "scare" Major, the father of her child, in order to
get him to leave the party.
Cloyd sat on a brick wall across the street from the gathering for about 30 minutes.
A woman approached and told her that someone at the party was "trippin," and about to
start shooting a gun. When she looked back towards the gathering, Cloyd saw appellant,
a Delman Heights Bloods gang member, call Major over to him. Appellant and Major
then argued for about 10 minutes. Cloyd testified that appellant pulled out a gun, aimed
it at Major's chest and began firing. Cloyd heard seven or eight shots. Cloyd did not see
Major grab towards his waistband, reach into his pockets, or pull out a gun. Cloyd
watched appellant shoot Major. Major collapsed and died from the gunshots. Two
bullets struck his chest, one hit his back and one struck his arm.
3
After shooting Major, appellant put the gun away and ran off. The mother of
appellant's child, Francea Kemp, testified that appellant called her and stated that he had
been shot and would be home shortly. Ten minutes later appellant arrived at Kemp's
home, where he sometimes stayed. Appellant's elbow, where he claimed to have been
shot, appeared to have a scratch or scrape. Appellant told Kemp that something
happened when he got into an argument. Appellant said that Major argued with him, but
appellant told him to "just be cool." Appellant said that Major3 kept clutching at
something and so appellant cautioned the party crowd to back up because he did not
know what Major might do. Appellant told Kemp that he knew Major had a gun.
Appellant told Kemp that because Major "wouldn't let it go," appellant determined
"at that point it was going to be him or me." Appellant told Kemp that at that point, both
men started shooting. In her testimony, Kemp agreed that appellant said that Major
"actually started shooting back at him[.]" Kemp testified that she could not recall if
appellant said that Major had actually pointed a gun at appellant. However, Kemp told
an investigating police officer that although appellant said that Major was acting "like he
had a gun," appellant never actually saw Major with a gun. Kemp further reported to
police that appellant told her that he shot first and Major returned fire.
Law enforcement processed the murder scene. Detective Brian Lewis testified
that he observed nine shell casings and bullet fragments. Lewis also observed six bullet
3 In his statements to Kemp, appellant did not identify the person he shot as Major.
However, as this point is not in dispute, respondent has referred to this "other person" as
Major.
4
holes in the side of the apartment building, and a possible bullet strike to an adjacent tree.
All of the shell casings recovered from the scene were scattered within 18 feet of one
another. The shell casings were around Major's body. The recovered shell casings, as
well as the bullet fragments, were later determined by forensic analysts to have been fired
from the same .40-caliber Smith & Wesson handgun. No guns were recovered near
Major's body or from the scene.
San Bernardino Sheriff's Department Crime Lab analyst Jason McCauley testified
that he analyzed a gunshot residue kit collected from Major. Seven gunshot residue
particles were found on Major, five particles on his left hand and two on his right.
McCauley testified that anything within 12 feet of a discharging gun would be exposed to
gunshot residue particles, so if Major had been within that distance from the shooter, it
would not be unusual for him to have particles on him.
Appellant was arrested the next day at Kemp's house. When the police arrived,
appellant instructed Kemp to not let them in unless they had a warrant. Appellant told
Kemp that police cannot come in a house without a warrant. After his arrest, appellant
agreed to speak with Detective Albert Tello. Appellant initially denied knowing anything
about the shooting. However, when Tello confronted him with the accountings of
witnesses, appellant recalled that he had been at the scene of the crime. However,
appellant stated that he left before the shooting. After he left, he heard shots, saw people
running, and heard the police coming. When Tello asked appellant why he had initially
said he was never there, appellant did not answer. He just looked down.
5
In a jail house call from appellant to Kemp, appellant spoke with Kemp about the
fact that she had been called to testify. Appellant asked Kemp if she had her "blueprint"
ready.
Defense Evidence
Appellant testified that he went to a gathering. For protection, he took his loaded
.40-caliber Smith & Wesson handgun. Appellant knew Major, as the two had been
friendly while in jail together. However, at the gathering, the two argued about a
misunderstanding. Appellant knew Major was intoxicated and armed with a revolver.
Although Major was being overly aggressive to appellant, appellant wished to "give
[Major] a pass." Appellant never showed his gun to Major, or pulled it out.
Despite appellant's effort to find peace with Major, Major pulled out his gun and
began firing at appellant. Appellant ran for cover. Appellant feared for his life. As
appellant attempted to find cover, he pulled out his gun and returned fire. Appellant
testified that he only shot at Major because Major began shooting at him first and
appellant was afraid. On cross-examination, appellant clearly detailed the sequence of
events: Major went for his gun and appellant ran for cover. Major began firing his gun
at appellant, and only then did appellant return fire.
Appellant further testified on cross-examination that before the shooting, appellant
never let Major know that he was also armed with a gun. Appellant only returned fire to
defend himself. Appellant threw the gun away in a trash can the next day. Finally,
appellant admitted that he had a "Crip Killer 187'' tattoo and acknowledged that he had
killed a Crip in this case, Major.
6
DISCUSSION
Phillips admitted he shot the victim. He testified he shot the victim following an
unprovoked attack by the victim who produced a revolver and began shooting at Phillips.
The defenses offered were self-defense and imperfect self-defense. The court instructed
the jury on the principles applicable to those defenses and on murder as well as voluntary
manslaughter. Neither the defense nor prosecution requested CALCRIM No. 3471. Nor
did either side argue the principle of when an aggressor can regain the right of self-
defense. Instead, Phillips argues the trial court had a duty to so instruct even in the
absence of a request.
A. Legal Principles
A trial court has the duty to instruct on all material issues presented by the
evidence even though no request has been made by counsel. This is often referred to as a
"sua sponte" duty. (People v. Breverman (1998) 19 Cal.4th 142, 157.) The sua sponte
duty to instruct applies where there is substantial evidence to support a defense and the
defendant is relying on the defense or the proposed defense is not inconsistent with the
defendant's theory of the case. (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.)
B. Analysis
CALCRIM No. 3471 applies to cases where there is substantial evidence of
mutual combat or where the defendant was the initial aggressor, but communicated to the
opponent that he or she wanted to terminate the fight and gave the opponent an
opportunity to stop the fighting. Under that scenario, the instruction provides that the
initial aggressor can regain the right to self-defense where, notwithstanding the
7
communicated effort to stop the fight, the opponent continues. Phillips argues such
instruction was appropriate in this case. We disagree.
There are basically two possible sets of "facts" presented in this case. The eye
witnesses testified that Phillips called the victim over to him, they argued loudly and then
Phillips pulled out his handgun and started shooting. The victim fell where he was
standing.
Phillips's version of the events was that the victim approached him and looked
"aggressive," by which Phillips meant the victim's facial features were "aggressive." The
victim did not make aggressive physical movements. For his part, Phillips testified that
he tried to calm the victim and avoid a confrontation. According to Phillips, the victim
suddenly started shooting at Phillips who ran away and only shot back in self-defense as
he attempted to reach cover. In short, Phillips's version was that he was never the
aggressor.
While the parties disagreed over the facts of the events, there was no contention by
anyone that there was mutual combat. Mutual combat consists of fighting by mutual
agreement or consent. (People v. Ross (2007) 155 Cal.App.4th 1033, 1046-1047.) On
appeal Phillips cannot point to any evidence of mutual consent or implied agreement but
argues since Phillips and the victim were in rival gangs, the jury could imply an
agreement to engage in mutual combat. We find no basis in this record for such
inference and the parties did not argue mutual combat to the jury.
Turning to the second principle of CALCRIM No. 3471, that the aggressor can
recover the right of self-defense, we find there is no evidence in this record to justify the
8
instruction. The only preshooting "aggression" that counsel claims the jury could use to
think Phillips was the initial aggressor is that Phillips and the victim had a loud argument.
Respectfully, loud argument is not the type of activity referred to in the self-defense
instruction. Neither Phillips nor the victim would have the right to use force merely
because there was a "loud argument" without any apparent threat of physical force. The
prosecution's case was built on the evidence that Phillips started the fight by pulling his
gun and shooting at the victim. The defense was that the victim started the fight by
shooting at Phillips before he even took his gun out of his pocket.
There is no possible scenario from this evidence from which the jury could have
found that Phillips was the aggressor, and communicated the desire to stop the fight and
that the victim, given the opportunity to stop, failed to do so. Simply put, the jury was
properly instructed on all of the relevant principles of self-defense and related lesser
included offenses. The parties vigorously disputed the facts and, at the end of the trial,
the jury rejected Phillips's version of the events and properly convicted him of murder.
As we have noted above, since we find CALCRIM No. 3471 had no application to
these facts we decline to address the claim of ineffective assistance of counsel or the
question of which standard of harmless error should apply.
9
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
10