Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael L. Schuur, Judge. Los Angeles County Super. Ct. No. VA095938
Kelly M. Cronin, under appointment by the Court of Appeal, for Defendant and Appellant.
ZELON, J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Chung L. Mar, and James William Bilderback III, Deputy Attorneys General, for Plaintiff and Respondent.
Anthony Bynum was convicted of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), with the special allegation found true that he had served two prior prison terms within the meaning of section 667.5, subdivision (b). On appeal, Bynum argues that the Court of Appeal should review the in camera proceedings conducted by the trial court pursuant to Bynum’s motion for production of documents under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and Evidence Code section 1043; that his conviction should be reversed because he did not knowingly and intelligently waive his constitutional rights before admitting his prior convictions; and that the trial court committed sentencing error. We affirm the conviction but remand for resentencing.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of June 19, 2006, two Los Angeles County deputy sheriffs, Leon Moore and David Auner, made a traffic stop of a car with a female driver and a male passenger, Bynum. Both officers approached the car. As Moore approached the car, he observed that Bynum was squirming a lot. Auner saw that Bynum was attempting to conceal a handgun. The officers directed both occupants out of the vehicle. Auner recovered the loaded gun from the passenger side floorboard of the car.
Bynum was charged with possession of a firearm by a felon (§ 12021, subd. (a)(1)), with four prior felonies alleged in the information. It was also alleged that Bynum had three prior convictions within the meaning of section 667.5, subdivision (b). Prior to trial, Bynum moved for production of documents containing personnel information concerning Moore and Auner. The trial court found that Bynum had made a prima facie showing with respect to the issue of false or fabricated reports, conducted an in camera review of potentially relevant documents, and concluded on the record that they contained no discoverable evidence.
At the start of the trial, Bynum elected to admit his prior felony convictions in order to prevent the jury from learning the nature of his prior offenses.
Bynum was convicted by jury of possession of a firearm by a felon. He elected to have a court trial rather than a jury trial on the prior conviction allegations. The court found that Bynum had two prior convictions within the meaning of section 667.5, subdivision (b). The trial court imposed the high term of three years for the offense on the grounds that Bynum was exhibiting “increasing criminality. He was on parole at the time of this offense. He served prior prison terms and his performance on parole was unsatisfactory. As a matter of fact,” the court continued, “he’s here again for the same charge which he was on parole for, carrying a gun.” The court found no circumstances in mitigation. The court also imposed one-year terms for each of the prior convictions, for a total prison sentence of five years.
Bynum appealed.
DISCUSSION
I. Pitchess Issues
Bynum requests that we review the trial court’s in camera proceeding in which it examined the potentially relevant materials produced by the custodian of records in response to his Pitchess motion. While conceding that such a review is customarily performed, the Attorney General makes the extraordinary contention that we should not review the in camera proceeding because the trial court is presumed to have regularly performed its duties. (Evid. Code, § 664.) According to the Attorney General, Bynum has an obligation to make a prima facie case that the trial court erred in performing its review before this court reviews the in camera proceedings.
The Attorney General is, not surprisingly, silent on exactly how Bynum is supposed to make a prima facie case that the trial court erred at a hearing from which Bynum and his counsel were excluded and the transcript sealed. The case on which the Attorney General relies for applying the official acts presumption, People v. Sullivan (2007) 151 Cal.App.4th 524, does not remotely stand for the proposition that a defendant should have to make a virtually impossible showing of trial court error at a hearing from which he was barred before an appellate court may review the trial court’s determination. Rather, the Sullivan case involved how a reviewing court should proceed on an appeal challenging the adequacy of the admonitions given a defendant who elected to represent himself when the transcript of the hearing at which he waived counsel was missing and unavailable. (Id. at p. 548.) With no record in existence, the Sullivan court had no alternative but to presume that the trial court regularly performed its duty to properly advise the defendant before permitting him to waive the right to counsel. (Id.at p. 550.) The Sullivan court never suggested that it would apply the official acts presumption to defeat review of an extant record—indeed, such an extension would no doubt surprise that court, as it clearly signaled its interest in reviewing the salient transcript by independently attempting to obtain a reporter’s transcript when one was not included in the record on appeal. (Id. at p. 548, fn. 5.)
The instant matter is not one in which meaningful review is precluded by the absence of a record, so People v. Sullivan, supra, 151 Cal.App.4th 524, is entirely inapplicable here. If we were to accept the Attorney General’s argument, defendants would be prevented from seeking an appeal of in camera hearings except under extraordinary circumstances where the trial court made some statement outside the in camera hearings that would tend to demonstrate that it had failed in its duties. We reject that argument.
At the in camera proceedings the trial court appropriately inquired whether the custodian had produced all potentially responsive documents concerning false or fabricated reports and described thoroughly in the sealed transcript of the hearing the document produced by the custodian of records and reviewed by the court. We have reviewed the sealed record of the proceedings and conclude the trial court appropriately exercised its discretion in finding the incident reviewed was not relevant to Bynum’s case and, therefore, disclosure of material from the officers’ personnel files was not appropriate.
II. Admission of Status as a Felon
In his opening appellate brief, Bynum asserted that he was not properly advised of his Boykin-Tahl rights (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122, overruled in part by Mills v. Municipal Court (1973) 10 Cal.3d 288, 306, fn. 16) prior to admitting his prior felony convictions in the course of his trial for being a felon in possession of a firearm under section 12021, and that his admission was therefore not knowing, intelligent and voluntary. The Attorney General observed that the California Supreme Court has determined that factual stipulations as to one’s status as a felon as an evidentiary fact necessary to this charge is not subject to the admonition and waiver requirements of Boykin and Tahl. (People v. Newman (1999) 21 Cal.4th 413, 422.) In reply, Bynum concedes that the trial court was not required to give him full Boykin-Tahl advisements before he admitted his prior convictions. The trial court did not err here.
III. Sentencing Issues
In his opening brief and a supplemental brief filed after People v. Black (2007) 41 Cal.4th 799 (Black II), Bynum raised constitutional and state law challenges to his sentence. Some of the issues discussed by Bynum were resolved by the decision in Black II and other recent cases, such as the propriety of a judge, rather than a jury, determining whether a defendant’s prior convictions are of increasing seriousness, parole status at the time of the offense, and parole performance. (Black II, at pp. 819-820; People v. Yim (2007) 152 Cal.App.4th 366, 370-371.)
Other issues raised by Bynum have no merit. Bynum contends that the trial court used an improper factor as the basis for imposing the upper term, as “increasing criminality” is not an aggravating factor listed in the California Rules of Court, Rule 4.421. As Bynum anticipated, we understand the trial court to have been referring to the aggravating factor that a defendant’s prior convictions are of “increasing seriousness.” (Cal. Rules of Court, Rule 4.421(b)(2).) Next, Bynum argues that he did not waive a jury trial on his prior convictions for sentencing purposes, and if he did, the waiver was not knowing and voluntary. This contention is belied by the record. When Bynum admitted his convictions, the determination as to whether the remaining issues could be the basis for imposing one-year sentence enhancements was deferred. After the guilty verdict, he waived a jury trial on the remaining elements of the section 667.5, subdivision (b) enhancements. It is apparent from the transcript that Bynum and his counsel understood his admission of the prior convictions to be for all purposes rather than for the elements of the substantive offense only. Bynum has not demonstrated that this waiver was not knowing and voluntary.
Bynum has, however, raised an issue with respect to the dual use of facts that requires us to remand the matter for resentencing. The trial court relied on Bynum’s prior convictions both as a justification for imposing the upper term sentence for the offense and to enhance his sentence with two additional one-year terms under section 667.5, subdivision (b). This was error. (People v. McFearson (2008) 158 Cal.App.4th 810, 816.) Like the court in McFearson, we conclude that the correct course is to remand the matter to the trial court for resentencing. “When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.” (People v. Price (1991) 1 Cal.4th 324, 492, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) The Attorney General argues this court “can safely conclude that there is no reasonable probability that the trial court would have imposed a lesser sentence in the absence of the purported error,” but offers no explanation for the basis upon which we may so safely conclude. We do not know whether, if the trial court had not improperly considered Bynum’s prior convictions as aggravators and as the basis for the enhancements, it would have imposed a midterm sentence with enhancements; whether it would have chosen to impose an aggravated sentence but then to strike the two enhancements; or whether it would have imposed the same sentence that it settled on here, basing the upper term on recidivism factors other than prior convictions (in this case, parole status and poor parole performance) to comply with constitutional requirements and to avoid the dual use problem while imposing the enhancements based on Bynum’s prior prison terms. Also complicating any assessment of what the trial court might have chosen in the proper exercise of its discretion is the fact that, as Bynum points out, the trial court’s conclusion that his offenses were increasing in seriousness is not supported by the record in light of Black II’s determination (after sentence had been imposed here) that the relative seriousness of offenses is gauged by reference to their ranges of punishment. (Black II, supra, 41 Cal.4th at p. 820.) We simply cannot discern what the trial court would have done if it had accommodated this statutory issue of dual use in the context of the evolving constitutional requirements applicable to California criminal sentencing.
We recognize that there are grounds for finding forfeiture here for the failure to object to this error of state law in the trial court (see, e.g., People v. Scott (1994) 9 Cal.4th 331, 353), but as the Attorney General declined to argue that the issue was forfeited, we do not decide the issue on that basis.
Whether a defendant’s parole status question falls within the prior conviction exception is currently before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677. Based on the California Supreme Court’s construction of the prior conviction exception in Black II, supra, 41 Cal.4th 799, we anticipate that it will consider a defendant’s status on parole to be a “fact that increases the penalty for a crime beyond the prescribed statutory maximum” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490) but that need not be submitted to a jury. (See People v. Yim, supra, 152 Cal.App.4th at p. 370 [holding that parole status and performance on parole, because they may be determined by reference to court records, may constitutionally be determined by the trial court rather than submitted to the jury].) Assuming this to be the case, there was no violation of the Sixth Amendment for the trial judge to have engaged in additional fact finding with respect to other aggravating circumstances once a single constitutionally compliant aggravating circumstance was identified. (Black II, at p. 816 [“imposition of the upper term does not infringe upon the defendant’s constitutional right to a jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions”].)
The Attorney General does not contest this assessment, but observes that Bynum had four prior felony convictions, which means that his prior convictions are numerous, under California Rules of Court, Rule 4.421(b)(2) whether or not they are of increasing seriousness. While this is true, it is irrelevant, because the court made no finding of numerosity and relied on the increasing seriousness of the convictions rather than on their sheer number. The fact that a related factual finding that was not made would have been supported by the record if it had been made does not tend to show that the factual finding challenged here was supported by the record.
Accordingly, we cannot say the trial court would have imposed an aggravated sentence if it had not considered the prior convictions in aggravation or if it had been aware that Bynum’s record did not demonstrate increasing criminality under Black II, supra, 41 Cal.4th at page 820. Neither can we say that the trial court would have imposed or stricken the two enhancements if it had realized it could not use them for both aggravating Bynum’s sentence and imposing enhancements. Therefore, a remand for resentencing is appropriate to permit the trial court to exercise its discretion anew consistent with the many developments in constitutional and statutory law since sentence was originally imposed in this matter.
DISPOSITION
The sentence is vacated and the matter remanded for resentencing. In all other respects, the judgment is affirmed.
We concur: PERLUSS, P. J.,WOODS, J.