P. v. Phillips
Filed 8/15/12 P. v.
Phillips CA3
NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW ELTON PHILLIPS,
Defendant and Appellant.
C067261
(Super.
Ct. No. 10F4852)
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.
___ [182 L.Ed.2d at p. 414].)
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
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.
___ [182 L.Ed.2d at p. 414]; 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.
