People v. Phipps
| Decision Date | 09 July 2019 |
| Docket Number | E065254 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. NAPOLEON DAJON PHIPPS et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
The court has reviewed the petition for rehearing filed July 22, 2019. The petition is denied. The opinion filed in this matter on July 9, 2019, is modified as follows:
On page 32, the paragraph that begins, "Because we conclude the encounter . . . ," change the word "magistrate" to "trial court." The paragraph should read:
Because we conclude the encounter between Officer Diaz and defendants was consensual, we need not determine whether the officer had reasonable suspicion to detain them. The trial court properly denied the motions to suppress.
On pages 83-84, add footnote No. 25 at the end of the paragraph that begins, "As already noted, . . ." and ends, ". . . their claim of error has been forfeited." The paragraph and footnote should read:
As already noted, a defendant may challenge on appeal "any instruction given, refused, or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (§ 1259.) "But '[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.'" (People v. Buenrostro (2018) 6 Cal.5th 367, 428.) Because neither defendant requested the trial court instruct on causation, and neither objected the instructions given did not adequately address the legal issues fairly raised by the evidence, their claim of error has been forfeited.1
There is no change in the judgment.
Acting P. J.
MILLER
J.
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. ) Reversed in part with directions; affirmed in part with directions.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Napoleon Dajon Phipps.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Patrick Wilson.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Daniel Rogers, Adrianne S. Denault and Christopher Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants Napoleon Dajon Phipps (Phipps) and Christopher Patrick Wilson (Wilson) appeal from their convictions for robbery, murder, attempted murder, and shooting at an occupied motor vehicle. Wilson also appeals from his additional convictions for being a felon in possession of a firearm.
Broadly speaking, defendants argue: (1) the trial court erred by denying their motions to suppress evidence; (2) the trial court erred by excluding exculpatory evidence; (3) the trial court erred by admitting expert testimony from a gang expert, and the evidence to support gang enhancements and a gang special circumstance was insufficient; (4) sufficient evidence does not support Wilson's conviction for attempted murder; (5) the trial court committed various instructional errors; (6) the trial court erred at sentencing; and (7) the errors cumulatively require reversal. The People concede some of the claims of sentencing error, and concede remand is necessary for the trial court to consider whether to strike Wilson's five-year sentence enhancement for a prior serious felony conviction.
We reverse for insufficient evidence Wilson's conviction on count 7 for attempted murder. We also agree with defendants the trial court erred by not instructing the jury that grossly negligent discharge of a firearm is a lesser included offense of shooting at an occupied motor vehicle; reverse defendants' convictions on count 5; and remand for thetrial court to reduce the convictions to the lesser included offenses and resentence defendants, unless the People elect to retry defendants on the greater offense within the statutory period. In addition, on remand the trial court shall: (1) correct Phipps's abstract of judgment to reflect the accurate sentence for attempted murder on count 7 of life in state prison with a mandatory minimum parole period of 15 years; (2) reduce Phipps's firearm sentence enhancement on count 7 from 25 years to life to 20 years in state prison; (3) correct Wilson's abstract of judgment to reflect he and Phipps are jointly and severally liable for the restitution award for count 1; and (4) determine in the first instance whether to exercise its discretion under recent statutory amendments to strike sentence enhancements for firearm use and whether to strike Wilson's five-year sentence enhancement for having suffered a prior conviction for a serious felony offense.
In all other respects, the judgments are affirmed.
Following a jury trial, defendants were convicted of two counts of second degree robbery (Pen. Code,2 § 211, counts 1, 3); one count of shooting at an occupied motor vehicle (§ 246, count 5); one count of first degree murder of Anthony Junius (Anthony)3 (§ 187, subd. (a), count 6); and one count of attempted first degree murder of MarcusJunius (§§ 664, 187, subd. (a), count 7). Wilson was also convicted on three counts of being a felon in possession of a firearm. (§ 12021, subd. (a)(1), counts 2, 4, 8.) The jury also found true all enhancement allegations, to wit, multiple gang (§ 186.22, subd. (b)(1)(C), (b)(1)(A), (b)(4)(B)) firearm (§ 12022.53, subds. (b)(1), (c), (d), (e)(1)), and special circumstance allegations (§ 190.2, subd. (a)(21), (22)), and found true that Wilson suffered a prior conviction for a serious or violent felony (§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and a prior serious felony (§ 667, subd. (a)(1)).
The trial court sentenced Phipps to state prison for 102 years to life without the possibility of parole, plus 17 years four months. Wilson was sentenced to state prison for 124 years to life without the possibility of parole, plus 47 years eight months.
Defendants timely appealed.
On August 19, 2011, around 5:40 p.m., "two young men" robbed a liquor store on North Grove Avenue in Ontario. The two men took all the money that was in the cash register (between $400 to $500), cigarettes, and a bottle of vodka. A few weeks later, the store's cashier reviewed a photographic lineup and identified Wilson as "100 percent" the person who pointed a gun at his head during the robbery and identified Phipps "90 percent" as the second person involved in the robbery. When interviewed later, after the shooting at the Circle K, Phipps admitted to participating in the robbery.
On the evening of August 23, 2011, around 7:00 p.m., two men robbed a gas station convenience store on East Fourth Street in Ontario. The men took money from the cash register (between $30 to $40). Almost two weeks later, the cashier identified Wilson from a photographic lineup as the man who pointed a gun at him during the robbery, but he was unable to identify the second man involved. When interviewed later, after the shooting at the Circle K, Phipps admitted to participating in the robbery.
In the early morning hours on September 5, 2011, Earz Dudley4 (Dudley) arrived at a Circle K5 with Anthony, Anthony's cousin Marcus (Dudley knew him as "Little Rele"), Eddie Smith (Smith), and Germane or Jermaine Braddock (Braddock) (Dudley knew him as "B") in a rented Kia SUV (SUV). Braddock was the driver, and Dudley was in the passenger seat. Earlier that evening, Dudley had taken a handgun fromAnthony and placed it on the floorboard of the SUV for safekeeping. The men drove to the Circle K to buy beer and parked on the north side of the store. Dudley entered the store, but he was unable to purchase the beer because it was too close to 2:00 a.m. Dudley walked back to the SUV.
Just then, Miranda Timken (Timken) arrived at the Circle K, driving her Chevy Malibu (Malibu), with Latrice Nash (Nash), Wilson, and Phipps.6 She parked in a space on the eastside of the store, by the front doors. Timken saw the SUV parked on the side of the Circle K. Dudley returned to the store to buy cigars, noticed the Malibu, and entered the store. Timken got out of her car and entered the store as Dudley walked out; he held the door open for her.
Wilson exited the driver's side of the Malibu. Phipps got out of the rear passenger door and stood next to the car. As Dudley walked out of the store, Wilson said, 7 Dudley ignored Wilson and walkedback to the SUV. When he got back to the SUV, he said, "Let's go," "[l]et's get out of here," and "[t]his man is tripping." Anthony then hopped out of the backseat of the SUV.
While Dudley was walking back to the SUV, Wilson started to pull the Malibu out of the parking spot, and Phipps walked east within the parking lot to the rear of the Malibu. At the same time, Shunnanee Sanders (Sanders) drove her white Toyota Corolla (Corolla) into the east side parking lot at the front of the store. Sanders had to wait before she could park because Wilson was driving out of the parking lot in the wrong direction and nearly hit her...
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