Filed 9/8/21 P. v. Phillips CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, A151534 v. (Contra Costa County COBY JEROME PHILLIPS, Super. Ct. No. 05-150124-6-01) Defendant and Appellant. PUBLIC—REDACTS MATERIAL FROM SEALED RECORD1 Defendant Coby Jerome Phillips appeals from his conviction for first degree murder and dissuading a witness from testifying. Defendant raises multiple claims of instructional error, challenges the sufficiency of the evidence supporting the dissuading a witness charges, and contends the trial court erroneously excluded impeachment evidence concerning two witnesses who testified at his trial. Defendant asks us to conduct an independent review of documents provided in camera to the trial court to determine whether records subpoenaed by the defense should have been disclosed to The trial court sealed certain records discussed in this case, which 1 were also filed under seal in this court. We have concurrently filed both public (redacted) and sealed (unredacted) versions of this opinion. (Cal. Rules of Court, rule 8.46(g)(1) & (2).) We order the unredacted version of this opinion sealed. PUBLIC—REDACTED OPINION defense counsel. Defendant also argues his trial counsel rendered ineffective assistance by failing to object to various instances of alleged prosecutorial misconduct. Finally, defendant asks us to remand to allow the trial court to exercise its discretion whether to strike the personal use of a firearm enhancement and five-year prior conviction allegations under Senate Bill No. 620 (2017–2018 Reg. Sess.) and Senate Bill No. 1393 (2017–2018 Reg. Sess.), respectively. We agree with defendant that the trial court prejudicially erred in instructing the jury on count two, and that the case should be remanded to allow the trial court to exercise its discretion with respect to the firearm and prior serious felony conviction enhancements. Otherwise, we affirm the judgment. I. PROCEDURAL AND FACTUAL BACKGROUND This case has a lengthy and complicated procedural history and factual background and involves many witnesses and individuals not relevant to the claims raised on appeal. In this background section, we summarize the facts necessary to understand the claims asserted on appeal. In appropriate sections of the discussion, we provide additional facts as necessary to analyze particular claims. A. The Charges Defendant was first tried for Darryl Grockett’s murder in 2013. After a mistrial was declared, the Contra Costa County District Attorney sought a superseding indictment, charging defendant again with Grockett’s murder and other crimes. Specifically, the January 2015 indictment charged 2 PUBLIC—REDACTED OPINION defendant with murder (Pen. Code,2 § 187, subd. (a); count one), dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count two), conspiring to dissuade a witness (§ 136.1, subd. (c)(2); count three), conspiracy to dissuade …
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