Opinion
E072715
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL PHILLIPS, Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF145538) OPINION APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed as modified and remanded with directions. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Emmanuel Phillips of, among other things, assault by means of force likely to produce great bodily injury. They also found true an allegation he personally used a deadly weapon during the assault. After appeal of his original sentence, the trial court ultimately sentenced him to a total determinate term of seven years and an indeterminate term of 50 years to life, including a one-year consecutive term for the personal use of a deadly weapon enhancement.
On appeal, Phillips argues the trial court erred by staying his sentence for the personal use of a deadly weapon enhancement rather than striking it. The People agree. We agree with the parties and strike the enhancement.
I
FACTS
In 2008, Phillips stabbed victim B.W. with a screwdriver.
In 2011, a jury convicted Phillips on five different charges. Phillips appealed the verdict, and in 2013 this court reversed three of his convictions and associated enhancements. (See People v. Phillips (Oct. 10, 2013, E055866) [nonpub. opn.].) Phillips's remaining two convictions on remand were for assault using force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), unlabeled statutory citations refer to this code) with enhancements for personally inflicting great bodily injury and using a deadly weapon (§§ 12022.7, subd. (a), 12022, subd. (b)(1)) and murder (§ 187, subd. (a)) with an enhancement for using a gun (§12022.53, subd. (d)).
The murder conviction involves events occurring on a different date than the assault. The facts concerning the murder are omitted from this opinion because they aren't relevant to the issues on appeal. --------
The trial court resentenced Phillips to a total term of seven years plus 50 years to life. This included a consecutive one-year enhancement for Phillips's personal use of a deadly weapon.
On January 24, 2018, the California Department of Corrections and Rehabilitation sent the trial court a letter which was filed on February 16, 2018, informing them that imposing the one-year enhancement for personal use of a deadly weapon was improper. The letter noted the one-year enhancement didn't apply to crimes such as Phillips's assault. In response, the trial court stayed the enhancement pursuant to section 654.
Phillips timely appealed.
II
ANALYSIS
Phillips argues the trial court erred by staying the one-year enhancement rather than striking it, and the People agree. We agree with the parties.
Section 12022, subdivision (b)(1), forbids a court from imposing a one-year sentence enhancement if "use of a deadly or dangerous weapon is an element of that offense." (§ 12022, subd. (b)(1).) Here, "[t]he assault by means of force likely to produce great bodily injury was [Phillips's] stabbing of the victim . . . . Hence, his use of this deadly weapon was an element of the offense, within the meaning of section 12022, subdivision (b), even though the crime was pleaded as an assault by means of force likely to produce great bodily injury rather than as an assault with a deadly weapon." (People v. McGee (1993) 15 Cal.App.4th 107, 115 (McGee).)
At sentencing, the trial court acknowledged the original sentence was contrary to section 12022, subdivision (b)(1)'s prohibition against imposing a one-year enhancement in cases like Phillips's. However, the trial court wrongly concluded the solution was to stay the sentence under section 654. Because the sentence was unauthorized as a matter of law, the trial court should have stricken the enhancement rather than stay it. (See McGee, supra, 15 Cal.App.4th at p. 118.) " '[I]t is well settled . . . that [a] court acts in "excess of its jurisdiction" and imposes an "unauthorized" sentence when it erroneously stays or fails to stay execution of a sentence under section 654.' " (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1004, fn. 2.) Therefore, the trial court acted in excess of its jurisdiction when it stayed the one-year sentence enhancement under section 654. We exercise our independent authority to correct the error and strike the enhancement.
III
DISPOSITION
We modify Phillips's sentence to strike the one-year sentence enhancement for personal use of a deadly weapon. We remand the matter for the limited purpose of directing the trial court to ensure a corrected abstract of judgment is prepared and forwarded to the California Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: CODRINGTON
Acting P. J. MENETREZ
J.