Opinion
G058151
09-21-2020
THE PEOPLE, Plaintiff and Respondent, v. DUSTIN SCOTT FLAMING, Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19NF0683) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed in part, reversed in part and remanded with directions. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Dustin Scott Flaming of one count of dissuading a witness by force (Pen. Code, § 136.1, subd. (c)(1); count 1) and one count of false imprisonment by menace or violence (§§ 236, 237, subd. (a); count 2). The court found true allegations that defendant had suffered two prison priors. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise stated.
The court sentenced defendant to four years in state prison as follows: (1) the middle term of three years on count 1; (2) the middle term of two years on count 2, which was stayed pursuant to section 654; and (3) one year for one of the prior prison terms. The court struck the other prior prison term enhancement.
Defendant raises four issues on appeal. First, he contends the court erred by failing to give a unanimity instruction on the false imprisonment count (count 2). Second, he claims the court improperly instructed the jury on the dissuading a witness count (count 1). Third, he seeks independent review of the court's Pitchess ruling with respect to one officer's records and further argues the court erred by denying his Pitchess motion without conducting an in camera review with respect to another officer. Finally, he contends his two prior prison term enhancements (§ 667, subd. (b)) should be stricken pursuant to a recent statutory amendment. We disagree with defendant's claims of instructional error, but we agree the court failed to conduct an adequate Pitchess review of one officer's records. Defendant's prior prison term enhancements also must be stricken. We accordingly conditionally reverse the judgment and remand to the court with directions to hold a new Pitchess hearing and to modify the judgment by striking defendant's two prior prison term enhancements. In all other respects we affirm the judgment.
(Pitchess v. Superior Court (1974) 11 Cal.3d 531.) --------
FACTS
In March 2019, defendant's mother, Coriene, lived with her two daughters and one of her sons. Defendant did not live with his mother.
On March 9, 2019, Officer Joshua Contreras was dispatched to Coriene's residence around noon. He spoke with defendant on the telephone. Defendant sounded inebriated. Later in the day, defendant sent two text messages to Coriene. One message said, "If I see you or him again, I will deal with you both." Defendant was referring to Coriene and defendant's brother. The other message said defendant would kill his brother.
After receiving the text messages, Coriene called the police, and Contreras was dispatched again to her house around 3:00 p.m. When Contreras arrived, he spoke with Coriene, and she showed him the text messages. According to Contreras, Coriene appeared to be "very nervous" and she said the text messages had scared her. At trial, Coriene testified she had called the police because she was worried about defendant's "stability," but she denied saying she was scared.
About three or four hours after defendant sent the text messages, he entered Coriene's house through the back, sliding door. Coriene sent a text message to another daughter who lived elsewhere. She told her daughter defendant was in her house, and she asked her daughter to call the police. At trial, Coriene testified she wanted her daughter to call the police because she was worried a stranger was in the house and was worried about defendant's stability. She testified she did not call the police herself because she did not want her children in the house to "hear anything like this."
For the third time that day, Contreras arrived at the house around 6:00 p.m., this time with other officers. Contreras and two other officers, Maccubbin and King, knocked on the door, announced they were police officers, and asked for the door to be opened. They did not receive a response at first. Contreras eventually heard Coriene say, "Everything is okay." She repeated this statement and further said, "You can go." He believed her voice sounded "shaky and distressed." He also saw Coriene through a window and testified she appeared to be "stiff," "extremely agitated," and in tears. Coriene again stated, "Everything is okay. You can go now."
Contreras then heard a male voice say, "Come back with a warrant." After Coriene repeated the same statement, Maccubbin asked if she was being told what to say. She nodded her head up and down. When asked if she was being held against her will or if defendant was preventing her from opening the door, she again nodded her head up and down and whispered, "Yes." She then shut the window blinds. At trial, Coriene testified she did not open the door because defendant had a duffel bag in his hand and was about to leave. She also denied being held against her will or that she felt threatened by defendant.
After the window blinds were closed, Maccubbin kicked at the door several times, and the officers made several commands for someone to open the door. Defendant eventually opened the door and was arrested. Contreras took a statement from Coriene. She said she was scared because of the text messages defendant had sent earlier in the day. She also said defendant was not allowed to be at her house and that he had told her not to open the door for the police because someone would get hurt. She further said she was afraid defendant would hurt her. According to Contreras, Coriene appeared to be scared and was crying.
At trial, Coriene's daughter, who had called the police at Coriene's request, testified that she went to the house when the police were interviewing Coriene. She testified Coriene told the officers that defendant did not threaten her, prevent her from opening the door, or scare her.
DISCUSSION
Defendant contends the court committed several instructional errors. He also claims the court committed Pitchess error. Finally, he argues we should strike his prior prison terms pursuant to a recent statutory amendment. For the reasons discussed below, the court committed Pitchess error with respect to one officer's records, and defendant's prior prison term enhancements should be stricken. Defendant's remaining contentions have no merit. A unanimity instruction on the count for false imprisonment by menace was not required.
Defendant claims the court should have given the jury a unanimity instruction on the false imprisonment by menace charge in count 2. According to defendant, the People "emphasized two separate sets of menace." He argues "some of the jurors may have found [him] guilty of menace through the text messages [he had sent earlier in the day], while other jurors may have relied upon the menacing statement in the house [when defendant said someone would get hurt if Coriene opened the door]." "We review defendant's claims of instructional error de novo." (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
At the outset, we note defendant did not request any unanimity instruction in the trial court proceedings. We nevertheless address the merits because defendant contends the court was required sua sponte to provide the instruction. We accordingly do not address defendant's alternative contention that his trial counsel rendered ineffective assistance by failing to request a unanimity instruction. On the merits, we conclude a unanimity instruction was not necessary because the People made a clear election to rely on defendant's threat inside the house as the menacing act causing the false imprisonment.
In a criminal case, "the jury must agree unanimously the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.'" (Ibid.) A unanimity instruction typically includes something along these lines: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed." (CALCRIM No. 3500.)
Here, defendant claims the People introduced evidence of two separate acts of menace: (1) the text messages defendant had sent to Coriene earlier in the day when he threatened Coriene and his brother; and (2) his statement in the house that someone would get hurt if Coriene opened the door. The People disagree and contend the prosecution made an election during oral argument specifying that the threat inside the house constituted the menacing act. The People accordingly argue a unanimity instruction was unnecessary.
Based upon our review of the record, the People made a clear election. During closing argument, the prosecutor discussed the elements of false imprisonment by menace. When addressing the element of menace, the prosecutor stated: "[W]e have to now consider, was it by menace? Again, the definition of menace, I'll throw up here again. Was there a verbal or physical threat of harm? She told the officer that the defendant told her if she opened the door, someone would get hurt. She quickly clarified to the police officer, by that, she believed specifically the defendant would hurt her if she tried to open the door. This is a classic verbal threat of harm. It is, by definition, restricting or confining someone by menace." (Italics added.) The prosecutor also displayed a Power Point presentation during closing argument that did not reference defendant's text messages in any of the slides discussing false imprisonment by menace. Instead, the presentation included a slide regarding menace and the following statement: "Defendant told her if she opened the door, 'someone would get hurt.'" Based on these statements, the People clearly relied on defendant's threat inside the house as the menacing act.
Defendant nevertheless claims the People did not make an election because the prosecutor discussed defendant's text messages when addressing the element of menace. But defendant relies on portions of the People's rebuttal argument that have nothing to do with the false imprisonment charge. In rebuttal, the prosecutor generally explained: "It's relevant, the [text messages are] relevant because it explains why [Coriene] was acting the way she was acting and started the whole event, but why it's not a separate charge, that's not for you all to consider." When discussing the element of menace, the prosecutor reiterated defendant's threat inside the house: "The defendant said to [Coriene], 'If you open the door, someone's going to get hurt.' It doesn't matter whether he was standing right next to her or in the kitchen because by saying those words, it has terrorized her and shocked her to where she's immobilized and she can't open the door. It's psychological fear, and it does not require any signs of physical struggles or damages." To emphasize that defendant's threat inside the house caused fear, the prosecutor noted: "[Coriene's] fear was consistent throughout the entire time. It started with the text message, and she told Officer Contreras directly, these text messages are causing me to be scared for my own safety." These statements do not suggest the People relied on the text messages as the menacing act for the charge of false imprisonment.
Defendant's reliance on People v. Davis (2005) 36 Cal.4th 510 and People v. King (1991) 231 Cal.App.3d 493 is misplaced because the prosecution never made a clear election in either of those cases. In Davis, the prosecution presented evidence of "two distinct acts of robbery . . . but did not elect which of those two it was relying on to prove the robbery . . . ." (Davis, at p. 560.) The court accordingly found the defendant was entitled to a unanimity instruction. (Id. at p. 561.) Likewise, in King, the court found a unanimity instruction was required where the defendant was convicted of possession of methamphetamine for sale, there was evidence the drugs were found at three different locations and could have belonged to others, and the prosecution did not make any election. (King, at p. 499.)
Here, not only did the People make a clear election, but defendant's counsel also told the jury during closing argument that the act of menace was defendant's threat inside the house. Defendant's counsel stated: "The statement that I'm referring to is the statement that essentially is the DA's theory of where the threat, the menace, the violence comes from. That statement is, he told me that if I opened the door, someone would get hurt." Later, defendant's counsel repeated: "[The People's] theory . . . is that it was the threat—my client's alleged statement that . . . if you open the door, someone would get hurt, that that's the menace and the violence that caused or prevented her from reporting the criminal threat or . . . prevented her from leaving the house."
For these reasons, the court did not err by failing to provide a unanimity instruction, and we need not address the parties' harmless error arguments. The court's jury instruction on the count for dissuading a witness by force was correct.
On the dissuading a witness charge in count 1, the court instructed the jury with CALCRIM No. 2622, which stated among other things: "To prove that the defendant is guilty of the crime of intimidating a witness in violation of . . . section 136.1, the People must prove that: [¶] 1. The defendant maliciously tried to prevent CORIENE . . . from making a report that she or another was a victim of a crime; [¶] 2. CORIENE . . . or another was a victim of a criminal threat; [¶] AND [¶] 3. The defendant knew he was trying to prevent CORIENE . . . from reporting victimization and intended to do so." (Italics added.) The CALCRIM form instructions provide the following explanation for how the various options should be completed for the second element of the crime: "<insert name/description of person defendant allegedly sought to influence> was a (witness/ [or] crime victim)." (CALCRIM No. 2622.)
Defendant contends the court erred in its recitation of the second element by instructing the jury that it needed to find Coriene "or another was a victim of a criminal threat." (Italics added.) He claims this allowed "the jury to pick from a smorgasbord of potentially threatened victims, including Coriene, [defendant's] brother who he said he wanted to kill, the two scared special needs sisters in the house who Coriene said she wanted to protect, and the police who tackled and arrested [defendant]." But defendant did not challenge the instruction in the trial court proceedings. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 [party forfeits challenge to instructions that correctly state the law even if the instructions are misleading in the particular case].) We nevertheless address the merits because defendant contends the alleged error violated his constitutional rights. We accordingly do not address defendant's alternative contention that his trial counsel rendered ineffective assistance by failing to request a proper version of the instruction.
Defendant's argument, however, is simply wrong. It is based on an incorrect reading of the statute and a conflation of the target of defendant's intimidation with the person victimized by the underlying crime, i.e., the crime the report of which defendant sought to suppress. Specifically, defendant summarized his argument as follows: "The information charged appellant in count one with intimidating a witness in violation of section 136.1, and specifically the information alleged the witness to be Coriene . . . . [Citation.] The applicable jury instruction listing the elements was CALCRIM No. 2622. The court incorrectly modified the instruction to state as the second element, 'CORIENE . . . or another was a victim of a criminal threat.' [Citation.] The instruction should not have included 'or another,' as the prosecution needed to prove beyond a reasonable doubt that Coriene . . . was the victim of the criminal threat."
Defendant's conclusion is not correct. The prosecution needed to prove beyond a reasonable doubt that Coriene was the person sought to be dissuaded, not that she was the sole victim of a criminal threat. While it is true that the person sought to be dissuaded may also be the victim of the underlying crime, section 136.1 is also violated if the person sought to be dissuaded is merely a witness to the underlying crime. Section 136.1, subdivision (b)(1) provides: [E]very person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense . . . . [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge." (Italics added.) Here, the "smorgasbord" defendant identifies, (Coriene, defendant's brother, the scared sisters, and even the police officers), were all persons that Coriene reasonably could have believed were potential victims of a criminal threat. (§ 136, subd. (3) ["'Victim' means any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other state or of the United States is being or has been perpetrated or attempted to be perpetrated] (italics added).) Accordingly, it was appropriate, even necessary, to include Coriene as both a victim of a criminal threat and as a witness defendant sought to dissuade from reporting a criminal threat made against "another person."
Moreover, even if defendant's flawed analysis is correct (which it is not) and even if the court erred (which it did not) by instructing the jury it needed to find that Coriene "or another" was a victim of a criminal threat, any error was harmless beyond a reasonable doubt. The parties' closing arguments focused on Coriene as the victim of a criminal threat and as a person who was dissuaded from reporting a crime. (People v. Aledamat (2019) 8 Cal.5th 1, 9; People v. Concha (2010) 182 Cal.App.4th 1072, 1088.) The People argued, "Element Number 2, she was a crime victim. Now, the law defines a victim if there's a federal or state crime has been committed against him or her. This is where it gets more dicey. [¶] In this case, when we say she was a crime victim, we're referring to that she was a victim of criminal threats, and that's these threats sent on text message . . . . When we're saying she was prevented from reporting that she was a victim, we're saying she was a victim of criminal threats on a text message." Defendant's counsel similarly focused on Coriene and argued she was not the victim of any criminal threats. Thus, even if defendant's argument were correct, and assuming the court erred by modifying CALCRIM No. 2622, any error was harmless.
Relying on Cool v. United States (1972) 409 U.S. 100, defendant argues reversal is required without a harmless error inquiry because the purported instructional error lowered the People's burden of proof. But Cool is distinguishable. In Cool, the court reversed a counterfeiting conviction based on an instruction that directed the jury "to ignore defense testimony unless it believe[d] beyond a reasonable doubt that the testimony is true." (Id. at p. 100.) Because the instruction placed an improper burden on the defense, it also reduced the People's burden of proof. (Id. at p. 104.) Unlike the instruction in Cool, the instruction here did not lower the People's burden of proof, and there could not have been the slightest doubt that the parties regarded Coriene as the target of the alleged criminal threat. There was no cumulative error.
Defendant contends the cumulative effect of the instructional errors compels reversal. Because we reject defendant's primary contentions of error on appeal, there was no cumulative error. The Pitchess motions.
Before trial, defendant moved to discover the personnel records of Contreras and Maccubbin. (Pitchess, supra, 11 Cal.3d 531.) Defendant sought records from the police department personnel files concerning, among other things, "[l]ack of credibility/falsifying police reports" and "[p]rior acts involving moral turpitude." The police department had no objection to allowing the inspection of Contreras's records, but objected to the inspection of Maccubbin's records. Accordingly, the court found good cause to review Contreras's files (People v. Samuels (2005) 36 Cal.4th 96, 109), conducted an in camera review (Evid. Code, § 1045, subd. (b)), but found no discoverable items (see People v. Mooc (2001) 26 Cal.4th 1216, 1226-1232 (Mooc).) The court denied defendant's motion to discover Maccubbin's personnel records without conducting an in camera review. Relying on People v. Sanderson (2010) 181 Cal.App.4th 1334 (Sanderson) and Eulloqui v. Superior Court (2010) 181 Cal.App.4th 1055, the court reasoned a Pitchess motion should not be granted in cases where the defendant merely claims the police are lying.
A. Defendant's Pitchess Motion Regarding Contreras's Personnel Records
The parties agree we should independently review the confidential proceedings regarding Contreras. (Mooc, supra, 26 Cal.4th at p. 1229.) We have reviewed the sealed transcript of the in camera hearing. The court placed the custodian of records for the Placentia Police Department under oath in the presence of the police department's counsel. The custodian stated he had reviewed Contreras's personnel file and internal affairs investigation files. He then testified there was no relevant information in the files. The court asked whether there were any complaints in the files, and the custodian said there were none. But the court did not question the custodian about what records were present in the files or what records had been reviewed to reach the conclusion that no documents were responsive. The Pitchess motion was not limited to a narrow request for production of any citizen complaints, but instead requested the production of six categories of documents. The court did not independently review the files but deferred to the custodian's judgment. "[T]he locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion." (Ibid.)
The instant case is like People v. Guevara (2007) 148 Cal.App.4th 62 (Guevara). In Guevara, the custodian of records testified that none of the officers' personnel files contained information responsive to the Pitchess motion. (Id. at p. 68.) The trial court did not review any documents from the personnel files or a sealed document listing what the custodian of records had reviewed. (Ibid.) The Court of Appeal reversed the judgment and remanded for a new Pitchess hearing. (Id. at p. 64.) The court explained the custodian of records "must establish on the record what documents or category of documents were included in the complete personnel file" when he or she does not produce the entire file for the court's review. (Id. at p. 69.) The court further held "if it is not readily apparent from the nature of the documents that they are nonresponsive or irrelevant to the discovery request, the custodian must explain his or her decision to withhold them." (Ibid.)
Like the Guevara court, we conditionally reverse the judgment and remand for the court to conduct a new Pitchess hearing where it must personally review the records or obtain a list of their contents and confirm the conclusion of the custodian of records. If the court finds there was discoverable evidence, it must then determine if defendant was prejudiced from the denial of discovery.
B. Defendant's Pitchess Motion Regarding Maccubbin's Personnel Records
With respect to Maccubbin's files, defendant argues the court erred by denying his motion without conducting an in camera review because he satisfied all of the statutory requirements set forth in Evidence Code section 1043, subdivision (b). "Evidence Code sections 1043 through 1045 codify [Pitchess]. 'The statutory scheme carefully balances two directly conflicting interests: the peace officer's just claim to confidentiality, and the criminal defendant's equally compelling interest in all information pertinent to the defense.' [Citation.] The legislation achieves this balance primarily through a procedure of in camera review, set forth in [Evidence Code] section 1045, subdivision (b), whereby the trial court can determine whether a police officer's personnel files contain any material relevant to the defense, with only a minimal breach in the confidentiality of that file." (People v. Jackson (1996) 13 Cal.4th 1164, 1220.) To obtain an in camera review of the records, a defendant must file a motion supported by "affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records." (Evid. Code, § 1043, subd. (b)(3).)
To establish materiality, the defendant "must propose a potential defense to the pending charge, articulate how the discovery might lead to or constitute evidence providing impeachment or supporting the defense, and describe an internally consistent factual scenario of claimed officer misconduct." (Garcia v. Superior Court (2007) 42 Cal.4th 63, 72.) The factual scenario of officer misconduct must be "plausible when read in light of the pertinent documents." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025.)
"'Pitchess rulings are reviewed for abuse of discretion.'" (People v. Anderson (2018) 5 Cal.5th 372, 391.) "Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records." (People v. Samayoa (1997) 15 Cal.4th 795, 827.)
Here, defendant's counsel submitted a declaration in support of the Pitchess motion stating the requested records were necessary to impeach the officers and "to accurately determine if the officers have been untruthful, manufactured evidence, manufactured probable cause or violated the constitutional rights of other individuals in the past to determine if the officer has any credibility at trial." The declaration further denied the various statements made in the police report prepared by Contreras. For example, the declaration stated Coriene never told the officers she was being held against her will or was prevented from opening the door, never told Contreras that defendant told her not to open the door or someone would get hurt, and did not tell Contreras she was afraid defendant would hurt her if she opened the door or that she was scared for her safety.
Sanderson, supra, 181 Cal.App.4th 1334 and Thompson, supra, 141 Cal.App.4th 1312 are instructive. In Sanderson, the trial court found the defendant did not establish good cause for the court to conduct an in camera review pursuant to the defendant's Pitchess motion. (Sanderson, at p. 1336.) Two police officers heard the defendant make certain threats in a telephone conversation. (Id. at p. 1337.) The Pitchess motion sought to discover the officers' personnel records relating to dishonesty and falsified police reports. (Id. at p. 1338.) The defendant's counsel also submitted a declaration claiming the police report was false and stating the defendant denied making the statements attributed to him. (Ibid.) The Court of Appeal held the trial court did not abuse its discretion in denying the Pitchess motion because the "defendant simply denied making the statement attributed to him; he did not deny making the phone call or engaging in a telephonic conversation . . . ." (Id. at p. 1340.) According to the Court of Appeal, the "[d]efendant failed to present 'an alternate version of the facts' regarding the reason and nature of his telephonic exchange" so it was within the trial court's discretion to determine the "defendant's version of events was not plausible 'based on a reasonable and realistic assessment of the facts and allegations.'" (Id. at p. 1341.)
In Thompson, the Court of Appeal similarly concluded the trial court did not err in finding the defendant did not establish good cause to conduct an in camera review pursuant to the defendant's Pitchess motion, which denied all allegations in the relevant police report. (Thompson, supra, 141 Cal.App.4th at pp. 1316-1317, 1319.) The Court of Appeal concluded the defendant failed to provide a factual showing that was "plausible by any rational standard." (Id. at p. 1315.) The defendant did not "present a factual account of the scope of the alleged police misconduct, and [did] not explain his own actions in a manner that adequately support[ed] his defense." (Id. at p. 1317.)
Like the defendants in Sanderson and Thompson, defendant did not present a plausible alternate version of the facts. As cogently argued by the Attorney General, "[Defendant] did not deny that Coriene had asked her daughter to call the police when [defendant] was at the house, did not explain why Coriene wanted to contact the police, did not explain what the male voice inside the house had said, and he failed to provide a reason for Coriene not opening the door when the police arrived and announced their presence. He also failed to explain Coriene's appearance of being frightened when she was standing at the window and did not present a factual account regarding the scope of the alleged police misconduct." He only asserted the officers' version of events was false. "The same could be said by every defendant regarding every police officer witness in every trial." (Eulloqui v. Superior Court, supra, 181 Cal.App.4th at p. 1069.)
Defendant relies on Brant v. Superior Court (2003) 108 Cal.App.4th 100 (Brant) and People v. Johnson (2004) 118 Cal.App. 4th 292 (Johnson). Brandt is inapposite for a very simple reason. The Brandt court reviewed a trial court ruling that denied an in camera review of documents pursuant to a Pitchess motion that alleged an alternate version of the facts, unlike the instant case where there was a total absence of an alternate version. And in Johnson, the arresting officer's credibility was directly placed in issue, unlike the instant case where Maccubin's credibility was not shown to be at issue. The material credibility issues consisted of (1) the credibility of Coriene's responses to questions asked by Maccubin, and (2) the credibility of Contreras's report of the questions he (Contreras) had heard Maccubin ask of Coriene.
Thus, in Brant, the defendant alleged good cause for an in camera review of officer personnel records "by providing his own version of the events." (Brant, supra, 108 Cal.App.4th at p. 108.) The defendant was charged with possession of a controlled substance. (Id. at p. 103.) His Pitchess motion asserted the arresting officers did not have reasonable suspicion to detain him because the officers lied about loud music inside the defendant's car as a reason to stop him when the noise actually came from nearby nightclubs. (Id. at p. 108.)
In Johnson, we concluded the defense counsel's declaration set forth good cause for an in camera review of officer personnel records. (Johnson, supra, 118 Cal.App. 4th at pp. 303-304.) Contrary to the arresting officer's statements, the declaration stated the defendant never asked the officer for certain drugs or took possession of packages of narcotics. (Id. at p. 303.) The interaction between the arresting officer and the defendant, and what was said between them at the time of the arrest, was plainly material to the defense. We held the defense counsel's declaration "set forth a sufficient factual foundation showing [the officer's] truthfulness was material to the case." (Ibid.) Here, in contrast, defendant's counsel's declaration asserted good cause was shown by defendant's denial of the truth of Contreras's report that Maccubin had asked questions of Coreiene and Contreras's report of Coriene's nonverbal responses. No suggestion was made that Contreras's report was based on hearsay statements by Maccubin, rather than a report of what Contreras had personally heard and observed at the scene. Thus, the police department's counsel rightly conceded that Contreras's files could be reviewed, but not Maccubin's.
Defense counsel's declaration did not present an alternate description of his encounter with the officers or directly question Maccubin's credibility. The court accordingly acted within its discretion by denying defendant's motion without conducting an in camera review of Maccubbin's records. "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) Here, we cannot conclude that is the case.
Finally, and not incidentally, we note that Maccubbin did not testify at trial. His credibility never did become an issue, so any error in discovering materials in his personnel file was harmless. We modify the judgment to strike the prior prison term sentencing enhancements.
Effective January 1, 2020, Senate Bill No. 136 (S.B. 136) amended section 667.5, subdivision (b) to provide that a one-year prior prison term enhancement only applies for prior sexually violent offenses as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) "The amendment applies retroactively to all defendants whose judgments are not yet final as of [January 1, 2020]." (People v. Petri (2020) 45 Cal.App.5th 82, 94.)
Here, the court sentenced defendant to one year for one prior prison term and struck another prior prison term enhancement. Defendant argues his two one-year enhancements under section 667.5, subdivision (b) should be stricken pursuant to S.B. 136. The Attorney General concedes S.B. 136 applies because defendant's case is not yet final on appeal and further agrees defendant's prior prison terms were not for sexually violent offenses. We agree with the parties and accept the Attorney General's concession. We accordingly strike defendant's prior prison term enhancements.
DISPOSITION
The judgment is conditionally reversed, and the matter is remanded to the court with directions to hold a new Pitchess hearing regarding Contreras's records. If the court finds there is discoverable information, it shall determine whether defendant was prejudiced from the denial of discovery. If the court confirms the lack of discoverable evidence or finds that defendant was not prejudiced from the denial of discovery, the judgment shall be reinstated. The judgment also is modified to strike defendant's two prior prison term enhancements under section 667.5, subdivision (b). Unless the court determines that defendant was prejudiced from the denial of discovery and grants a new trial, the clerk of the court is directed to prepare an amended abstract of judgment reflecting the above modification and shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.