People v. Phillips

Full title: THE PEOPLE, Plaintiff and Respondent, v. MATTHEW ELTON PHILLIPS, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)

Date published: Aug 15, 2012

C067261 (Cal. Ct. App. Aug. 15, 2012)

Opinion

C067261 Super. Ct. No. 10F4852

08-15-2012

THE PEOPLE, Plaintiff and Respondent, v. MATTHEW ELTON PHILLIPS, Defendant and Appellant.

BLEASE

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT: It is ordered that the opinion filed herein on July 31, 2012, be modified as follows: 1. On page 3, footnote 2, delete the second sentence of the footnote and the parenthetical that follows so the footnote will read:

Defendant also had four prior prison terms. (§ 667.5, subd. (b).)

2. On page 10, insert the following at the beginning of the first full paragraph (immediately preceding "It is reasonably probable . . . ."):

The record before us is fully developed regarding criterion (1) of the Strickland test of prejudice just
noted. Consequently, we may determine this criterion ourselves. (Cooper, supra, 566 U.S. _ .)

3. On page 10, the last paragraph, beginning "Defendant must now be given the opportunity, as Frye provides," is modified to read as follows:

However, the record is not fully developed regarding criterion (2) of the Strickland test of prejudice noted above—i.e., prosecutorial cancellation or trial court refusal. The current record shows factors favoring and disfavoring acceptance of the six-year plea offer (or the eight-year offer), especially on the trial court's part. Consequently, defendant must now be given the opportunity, as Frye provides, to demonstrate a reasonable probability that the six-year plea offer (or, at the least, that the eight-year plea offer) would have been entered without the prosecution canceling it or the trial court refusing to accept it.

4. On page 11, in the Disposition, add the following language after the citation to Cooper and Frye and before the sentence that begins "Should defendant not make this showing, . . .":

Presuming defendant accepts the offer, the trial court can then exercise its discretion in determining whether to resentence defendant pursuant to the plea agreement. (See Cooper, supra, 566 U.S. __ ; see also In re Alvernaz, supra, 2 Cal.4th at p. 943.)

There is no change in the judgment. Appellant's petition for rehearing is denied.

By the Court:

BLEASE, Acting P. J. BUTZ, J.

DUARTE, J.