Filed 6/11/14 P. v. Phillips CA4/1
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                    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(;/.)
        <Give element 3 in cases of mutual combat.>
        [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.]"
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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.

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       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.
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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.



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         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.

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                                       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

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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.




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                                DISPOSITION

    The judgment is affirmed.




                                              HUFFMAN, Acting P. J.

WE CONCUR:



               O'ROURKE, J.


                   AARON, J.




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