P. v. Phillips

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Filed 5/26/20 P. v. Phillips CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
BARBARA LYNN PHILLIPS,
Defendant and Appellant.
E072762
(Super.Ct.No. RIF079858)
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Raymond Mark DiGuiseppe, 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, Michael P. Pulos and Joseph C.
Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found defendant and appellant Barbara Lynn Phillips guilty of first degree
murder. (Pen. Code,1 § 187, count 1.) The jury also returned true findings on the special
circumstance allegations that the murder was committed while engaged in the
commission of a kidnapping (§ 190.2, subd. (a)(17)(B)) and that the murder was
intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). The jury further
found true the allegation that defendant personally used a firearm in the commission of
the murder. (§§ 12022.5, subd. (a) & 1192.7, subd. (c)(8).) A trial court sentenced her to
life without the possibility of parole, plus four years on the personal firearm use
enhancement. (See People v. Phillips (May 8, 2001, E026884) [nonpub opn.].)2
Defendant filed a petition for resentencing under section 1170.95, which the court
denied.
Defendant filed a timely notice of appeal. We affirm.
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2 We reserved ruling on the People’s request for judicial notice, filed on
November 12, 2019, for consideration with this appeal. The People requested this court
to take judicial notice of our unpublished opinion in People v. Phillips, supra, E026884.
We hereby grant the request. (Evid. Code, § 452, subd. (d).)

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FACTUAL BACKGROUND3
Defendant’s realtor alerted her and her husband, Lester Wilson, that the back door
to their house was unlocked and open. They went to the house, and Wilson discovered
that two TV’s and a VCR were missing. Defendant and Wilson became extremely upset.
Wilson grabbed a gun and left with defendant in their car. Defendant suspected that the
victim had stolen these items. The victim had previously lived with them for a few
weeks.
Defendant and Wilson went to the home of M.D., the victim’s brother, who lived
with his girlfriend, and her three children. Wilson held a gun to M.D.’s head, while he
repeatedly asked M.D. where the stolen items were and where the victim was. M.D. did
not know, so Wilson and defendant forced M.D., his girlfriend, and the children to go and
look for the victim with them. Wilson threatened he would not hesitate to “blow” M.D.’s
girlfriend and her children away if they did not do what he said. Wilson and M.D. went
in one car, and defendant followed behind them in another car with the girlfriend and the
children.
They spotted the victim walking down the street. Wilson pulled the car over,
pointed the gun at the victim, and ordered him to get into the car. The victim complied,
and Wilson repeatedly asked the victim where the stolen property was. The victim
denied knowing anything. Both cars drove to the victim’s friend’s home to look for the
3 This statement of facts is taken from our prior unpublished opinion in People v.
Phillips, supra, E026884.

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property, but it was not there. Both cars then drove to Wilson and defendant’s house and
Wilson told everyone to go inside. Wilson repeatedly asked where the stolen property
was, while he was pointing the gun at the victim. Defendant was very angry and kept
yelling at them and asking where her property was. Wilson then shot the victim in the
knee cap, from about one to one-and-one-half feet away, while defendant was yelling.
Wilson dragged the victim into the bedroom, put duct tape around his wrists and body,
and tied rope around his legs. Wilson then put some D-size batteries in a glove, put the
glove on his hand, and started beating the victim’s face, while saying, “Where’s my TV
and VCR?” Defendant was in the living room, saying the same thing. The victim then
wrote down directions to where the property could be found.
Wilson and M.D. went out to go find the stolen property. When Wilson left, he
gave the gun to defendant. Wilson and M.D. did not find the property, so they returned
to the house. M.D. then begged defendant to let them go, but she refused. Wilson left
the house again and returned later with three friends. Wilson beat the victim some more.
M.D. could hear the victim crying, screaming, and moaning when he was hit. The
victim’s face was bloody, and his eyes were swollen shut. Wilson also took his dog’s
choke chain and choked the victim with it.
At one point, defendant left the house to go to the store. She bought several cans
of lye at the store. Wilson had said that he was going to take the victim’s body
somewhere and dump lye over it, so that it would dissolve.

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Wilson later recovered the stolen property. However, even after recovering it,
Wilson and his friends continued to beat the victim. They also forced him to drink a
glass of urine when he asked for something to drink. Defendant was present when this
occurred.
M.D. continued to beg defendant to let them go, but she refused, and even stated
that they were going to kill the victim. M.D. went with defendant to run an errand, and
when they returned to the house, Wilson and M.D.’s girlfriend were dragging the victim
out of the room. M.D. took over for his girlfriend because she was crying. They put the
victim in the backseat of Wilson’s car. After attempting to clean up the room and all of
the blood from the beatings, Wilson wanted to let M.D., M.D.’s girlfriend, and the
children go. Defendant did not want to let them go but wanted them dead. After
discussing it, they let them go, and Wilson warned them not to call the police.
Defendant and Wilson drove Wilson’s car down the freeway, with the victim in
the backseat, when the car stalled. Wilson took the victim out of the car and shot him.
Defendant heard five gunshots. Wilson then pushed the victim’s body over the guard
rail. The victim’s dead body was found in the drainage ditch the next morning.
ANALYSIS
The Alleged Instructional Error Was Harmless
Defendant argues the court erred in summarily denying her section 1170.95
petition, claiming the court relied solely on the true finding on the torture-murder special-
circumstance allegation (hereinafter, torture-murder allegation). Specifically, she

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contends the trial court gave an erroneous jury instruction that included torture in the list
of felonies on which the jury could base a felony-murder special circumstance under
section 190.2, subdivision (a)(17). As such, the jury was improperly permitted to find the
torture-murder allegation true without finding defendant had the intent to kill. Thus, she
argues the jury’s true finding on that allegation was not a reliable basis for concluding
that she was ineligible for relief under section 1170.95. We conclude that the alleged
instructional error was harmless, since the evidence clearly showed defendant acted with
the intent to kill.
A. Procedural Background
On January 7, 2019, defendant filed a petition for resentencing under section
1170.95 in the superior court and requested the court to appoint counsel to assist her. The
People filed a response, arguing that Senate Bill No. 1437 was unconstitutional, and that
defendant’s petition should be summarily denied because the jury’s true finding on the
torture-murder allegation established she had the intent to kill, which meant that she
could not make a prima facie showing for relief under section 1170.95.
On March 25, 2019, the public defender filed a reply to the People’s response,
defending the constitutionality of Senate Bill No. 1437.
The court held a hearing on the petition on April 19, 2019. The deputy public
defender represented defendant and requested a 90-day stay. The prosecutor stated, “It
—torture murder, kidnap, special circumstance, LWOPP [sic]. There were CALJICs

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given that required intent to kill.” The court said it was inclined to summarily deny the
petition, and defense counsel objected. The court proceeded to deny the petition.
B. Relevant Law
On September 30, 2018, the Governor signed Senate Bill No. 1437. (People v.
Martinez (2019) 31 Cal.App.5th 719, 722-723.) “The legislation, which became effective
on January 1, 2019, addresses certain aspects of California law regarding felony
murder and the natural and probable consequences doctrine by amending Penal Code
sections 188 and 189, as well as by adding Penal Code section 1170.95, which provides a
procedure by which those convicted of murder can seek retroactive relief if the changes
in law would affect their previously sustained convictions.” (Id. at pp. 722-723.) “Senate
Bill 1437 was enacted to ‘amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to kill, or was
not a major participant in the underlying felony who acted with reckless indifference to
human life [as described in section 190.2, subdivision (d)].’ ” (Id. at p. 723; see § 189.)
“Section 1170.95 permits those ‘convicted of felony murder or murder under a
natural and probable consequences theory [to] file a petition with the court that sentenced
the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on
any remaining counts . . . .’ [Citation.] An offender may file a petition under section
1170.95 where all three of the following conditions are met: ‘(1) A complaint,
information, or indictment was filed against the petitioner that allowed the prosecution to

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proceed under a theory of felony murder or murder under the natural and probable
consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second
degree murder following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder[;] [¶] [and]
(3) The petitioner could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.’ [Citation.] A trial court
receiving a petition under section 1170.95 ‘shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner falls within the provisions of
this section.’ [Citation.] If the petitioner has made such a showing, the trial court ‘shall
issue an order to show cause.’ [Citation.] The trial court must then hold a hearing ‘to
determine whether to vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same manner as if the petitioner
had not been previously been [sic] sentenced, provided that the new sentence, if any, is
not greater than the initial sentence.’ ” (People v. Gutierrez-Salazar (2019) 38
Cal.App.5th 411, 417 (Gutierrez-Salazar); see § 1170.95.)
C. The Court Properly Denied the Petition
Relying on People v. Pearson (2012) 53 Cal.4th 306 (Pearson), defendant
contends that the jury instructions erroneously permitted the jury to sustain the torture-
murder allegation “based on a finding that she either acted with ‘the intent to kill’ or
‘with reckless indifference to human life and as a major participant’ in the alleged

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kidnapping.” Thus, it permitted the jury to find the torture-murder allegation true without
the requisite finding that she had the intent to kill.
Section 190.2, subdivision (a)(17), concerns special circumstance findings when a
murder is committed during an enumerated felony. However, the special circumstance of
torture is in a separate subdivision—it is not part of the enumerated list. (§ 190.2,
subd. (a)(18).) As explained in Pearson, “[u]nder subdivision (c) of section 190.2, a
defendant who aided and abetted the murder but was not the actual killer is generally
eligible for capital punishment only if he or she acted with the intent to kill. The
exception in subdivision (d) of the same statute, allowing a true finding for a nonkiller
defendant who acts as a ‘major participant’ in a predicate felony and with ‘reckless
indifference’ to human life, applies only to the felony-murder special circumstances listed
in section 190.2, subdivision (a)(17) and not to the torture-murder special circumstance
set out in subdivision (a)(18).” (Pearson, supra, 53 Cal.4th at pp. 322-323.) Moreover,
“the torture-murder special circumstance requires proof ‘[t]he murder was intentional and
involved the infliction of torture.’ ” (Id. at p. 322.) The special circumstances under
section 190.2, subdivision (a)(17), require only proof that “[t]he murder was committed
while the defendant was engaged in, or was an accomplice in, the commission of” one of
the enumerated felonies. (§ 190.2, subd. (a)(17).)
The record shows that the court here instructed the jury as follows: “If you find
the defendant in this case guilty of murder in the first degree, you must then determine
whether one or more of the following special circumstances are true or not true: murder

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involving infliction of torture and murder in the course of kidnapping. [¶] . . . [¶] If you
find that the defendant was not the actual killer of a human being, or if you’re unable to
decide whether the defendant was the actual killer or an aider and abettor, you cannot
find the special circumstance to be true unless you’re satisfied beyond a reasonable doubt
that such defendant with the intent to kill aided, abetted . . . or assisted any actor in the
commission of the murder in the first degree, or with reckless indifference to human life
and as a major participant, aided, abetted . . . or assisted in the commission of the crime
of kidnapping which resulted in the death of a human being, namely, [the victim].”4
Specifically, defendant claims the jury was told this instruction applied to both
special circumstances allegations and “was effectively instructed that it could and should
find the torture special circumstance to be true upon sufficient proof that [she] either
acted with ‘the intent to kill’ or ‘with reckless indifference to human life and as a major
participant’ in the alleged kidnapping.” She argues that, as in Pearson, the trial court
“erred in including torture in the list of felonies on which the jury could base a felony-
murder special circumstance under section 190.2, subdivision (a)(17)” since the intent
requirement for the torture special circumstance is different than that required for the
enumerated special circumstances. (Pearson, supra, 53 Cal.4th at p. 322.)
4 We reserved ruling on defendant’s request for judicial notice, filed on October
11, 2019, for consideration with this appeal. Defendant requested this court to take
judicial notice of the clerk’s transcript of the written jury instructions given at trial and
the reporter’s transcript of the oral instructions given and the closing arguments. We
hereby grant the request. (Evid. Code, § 452, subd. (d).)

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We recognize that the jury instructions were somewhat unclear. However, to the
extent defendant is contending that the court erred in its instruction by effectively
instructing the jury it could find the torture-murder allegation true without finding she
acted with the intent to kill, any error was harmless. The court in Pearson concluded that
the torture-murder finding had to be vacated because of the jury instruction given, which
was similar to the instruction given in the instant case. (Pearson, supra, 53 Cal.4th at
p. 324.) However, it found that the instructional error was not harmless beyond a
reasonable doubt because the evidence as to whether the defendant acted with the intent
to kill, or merely with reckless indifference to life, was not definitive, due to evidence of
the defendant’s intoxication and conflicting narratives. (Id. at p. 323.) In contrast, in the
instant case, the evidence of defendant’s intent to kill was clear. As indicated in our
previous opinion, when M.D. begged defendant to let his girlfriend and her children go,
defendant refused and stated they were going to kill the victim. Later, her codefendant,
Wilson, wanted to let M.D., his girlfriend, and the children go; however, defendant did
not want to let them go, but wanted them dead. Moreover, Wilson said he was going to
take the victim’s body somewhere and dump lye over it so that it would dissolve.
Defendant went to the store and bought several cans of lye at the store. At another point,
she told Wilson that if he was not going to shoot the victim, she would. During an
interview, she told the police she did not approve of the torture and would have “shot him
and been done with it.” (People v. Phillips, supra, E026884.) Therefore, the alleged

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instructional error was harmless because the evidence clearly showed that defendant
acted with the intent to kill.
Furthermore, we note that defendant’s argument for reversal is based on the claim
the court relied solely upon the true finding on the torture-murder allegation in denying
her petition. However, at the hearing on the petition, the prosecutor reminded the court
that there was both a torture-murder finding and a kidnapping special-circumstance
finding. The court denied the petition, but there is no indication it relied solely upon the
torture-murder allegation finding in doing so.
Moreover, defendant does not dispute that the kidnapping special-circumstance
finding was proper. Kidnapping is one of the felonies as to which the jury needed to find
only that defendant, if not the actual killer, acted as a major participant and with reckless
indifference to human life. (Pearson, supra, 53 Cal.4th at p. 323; § 190.2,
subd. (a)(17(B).) The jury was instructed that, to find the special circumstance true, it
had to find the murder was committed while defendant “was engaged in or was an
accomplice in the commission of a kidnapping.” It was further instructed that “[e]very
person who unlawfully and with physical force or by any other means of instilling fear
. . . holds [or] detains . . . or compels any other person without his or her consent and
because of a reasonable apprehension of harm, to move for a distance that’s substantial in
character, is guilty of the crime of kidnapping.” The evidence that defendant acted as a
major participant in the kidnapping, with reckless indifference to human life, is clear. As
stated in our previous opinion, defendant and Wilson forced M.D., his girlfriend, and her

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children to go and look for the victim with them; defendant drove M.D.’s girlfriend and
her children. The evidence shows she also personally used a gun to hold M.D., his
girlfriend, and her children against their will. (People v. Phillips, supra, E026884.)
Since the kidnapping special-circumstance finding was not affected by the alleged
instructional error, no reversal is required. (See Pearson, supra, 53 Cal.4th at p. 324
[“The error does not, however, require reversal of the judgment of death, because
numerous special circumstance findings remain, unaffected by the instructional error.”].)
We conclude the court properly denied defendant’s section 1170.95 petition, and
no reversal is required.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
FIELDS
J.
MENETREZ
J.

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