Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of the County No. PA054133 of Los Angeles, Sanjay T. Kumar, Judge.
Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Steven D. Matthews, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Pursuant to our orders on remand, the trial court held an in camera hearing to review certain police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 and Evidence Code section 1043, determined there were no discoverable documents, dismissed Counts 2 and 3, and resentenced defendant and appellant Christopher Prevedello (defendant) on Counts 1, 4, 5, 6, and 7. On appeal, defendant requests that we review the sealed transcript of the in camera hearing on the Pitchess motion to determine if the trial court abused its discretion in ruling on that motion. Defendant also contends that the trial court failed to exercise its discretion in resentencing defendant to consecutive terms on Counts 4, 6, and 7 and that he received ineffective assistance of counsel at the resentencing hearing.
We have reviewed the transcript of the in camera proceeding held pursuant to our order on remand and determined that the trial court did not abuse its discretion in determining that there were no discoverable documents in the relevant files. We further hold that defendant forfeited his claims concerning his consecutive sentences on Counts 6 and 7, the trial court properly exercised its discretion in resentencing defendant to a consecutive term on Count 4, and defendant’s ineffective assistance of counsel claim cannot be determined from the record on appeal and must be raised, if at all, by way of a petition for a writ of habeas corpus. We therefore affirm the trial court’s orders after remand denying defendant’s Pitchess motion and sentencing defendant to consecutive terms on Counts 4, 6, and 7.
PROCEDURAL BACKGROUND
This section is taken verbatim from our opinion on the original appeal. (People v. Prevedello (March 16, 2009, B199210) [nonpub. opn.].)
In an amended information, the Los Angeles County District Attorney charged defendant in Count 1 with possession for sale of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11378-a felony; in Count 2 with possession of a controlled substance, morphine, in violation of Health and Safety Code section 11350, subdivision (a)-a felony; in Count 3 with possession of a controlled substance, oxycodone, in violation of Health and Safety Code section 11350, subdivision (a)-a felony; in Count 4 with possession of a controlled substance, morphine and oxycodone, with a firearm in violation of Health and Safety Code section 11370.1, subdivision (a)-a felony; in Count 5 with possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1)-a felony; in Count 6 with possession of ammunition by a felon in violation of section 12316, subdivision (b)(1)-a felony; and in Count 7 with possession of a deadly weapon, metal knuckles, in violation of section 12020, subdivision (a)(1)-a felony. The District Attorney alleged as to Count 1 that, in the commission of that offense, defendant was personally armed with a firearm within the meaning of section 12022, subdivision (c). The District Attorney further alleged, as to all counts, that defendant had been convicted of four felonies within the meaning of section 1203, subdivision (e)(4); that defendant had suffered four prior convictions resulting in prison terms within the meaning of section 667.5, subdivision (b); and that defendant had suffered one prior conviction of a serious or violent felony within the meaning of sections 1170.2, subdivisions (a) through (d) and 667, subdivisions (b) through (i) (the Three Strikes Law).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was convicted after jury trial on all seven counts. The trial court sentenced defendant on Count 1 to the middle term of two years, doubled to four years pursuant to the Three Strikes Law, plus an additional four years pursuant to section 12022, subdivision (c), for a total of eight years; on Count 2 to one-third the middle term of two years, or eight months, doubled to 16 months to run consecutively with Count 1; on Count 3 to one-third of the middle term of two years, or eight months, doubled to 16 months to run consecutively with Count 2; on Count 4 to the middle term of two years, doubled to four years with execution of that sentence stayed pursuant to section 654; on Count 5 to the middle term of two years, doubled to four years with execution of that sentence stayed pursuant to section 654; on Count 6 to one-third the middle term of two years, or eight months, doubled to 16 months to run consecutively with Count 3; on Count 7 to one-third the middle term of two years, or eight months, doubled to 16 months to run consecutively with Count 6; and, pursuant to section 667.5, subdivision (b), to an additional consecutive sentence of two years. The aggregate sentence was 15 years four months.
The conviction on Count 4 was for a violation of Health and Safety Code section 11370.1, subdivision (a). As discussed below, the middle term sentence for a violation of that section is three years, not two years. In pertinent part, section 11370.1, subdivision (a) provides: “Notwithstanding Section 11350 or 11377 or any other provision of law, every person who unlawfully possesses any amount of a substance containing cocaine base, ... while armed with a loaded, operable firearm is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years.”
2. Ruling on Original Appeal
On appeal from the judgments of conviction, we held as follows: “The judgments of conviction on Counts 2 and 3 are reversed, those charges are remanded to the trial court with instructions to dismiss them, and the sentence on Count 4 shall be increased to six years. The judgments of convictions on Counts 1, 4, 5, 6, and 7 are reversed for the limited purpose of remanding the case to the trial court for a determination of the proper scope of defendant’s discovery request and an in camera inspection of Officer Jaramillo’s personnel records to determine whether they contain information relevant to defendant’s misconduct defense. If, after in camera review, the trial court determines there is no discoverable information in the relevant personnel records, the original judgments of conviction on Counts 1, 4, 5, 6, and 7, which we have otherwise affirmed, shall be reinstated, and the trial court shall resentence defendant in accordance with this opinion. If the trial court determines that there is discoverable material, it should be turned over to defendant so that he may determine if it would have led to any relevant, admissible evidence that could have been presented at trial. If defendant can demonstrate that he was prejudiced by the denial of discovery, the trial court shall order a new trial. If defendant cannot demonstrate any such prejudice, the original judgments of conviction on Counts 1, 4, 5, 6, and 7 shall be reinstated, and the trial court shall resentence defendant in accordance with this opinion.” (People v. Prevedello (March 16, 2009, B199210) [nonpub. opn.].)
3. Proceedings on Remand
On September 3, 2009, the trial court held an in camera hearing to review Officer Jamarillo’s personnel records to determine if they contained complaints regarding the fabrication of police reports or suspect statements. Following that hearing, the trial court determined that the relevant personnel records did not contain any discoverable information.
On September 25, 2009, the trial court held a sentencing hearing. On Counts 1, 5, 6, and 7, the trial court reinstated defendant’s original sentences without modification. Pursuant to our opinion on the original appeal, the trial court dismissed Counts 2 and 3. Over defense counsel’s objections, the trial court sentenced defendant on Count 4 to a consecutive sentence of one-third the middle term of three years, or one year, doubled to two years pursuant to sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). The resentencing resulted in an aggregate sentence of 14 years, 8 months.
DISCUSSION
A. In Camera Review
Relying on People v. Mooc (2001) 26 Cal.4th 1216, defendant requests that we review the records of the in camera proceeding as to Officer Jamarillo to determine if any discoverable information was withheld. Consistent with customary procedure, the transcript of the in camera hearing held by the trial court has been made part of the record on appeal but has been sealed, and appellate counsel for defendant has not been permitted to review it. We have made an independent examination of that transcript and conclude that the trial court did not abuse its discretion in refusing to disclose the contents of Officer Jamarillo’s personnel file.
B. Consecutive Sentences
Defendant contends that the trial court abused its discretion when it ordered the sentences for Counts 4, 6, and 7 to run consecutively. According to defendant, the trial court merely adopted the reasoning of the original sentencing judge when imposing a consecutive sentence on Count 4, or otherwise relied on improper criteria, and it gave no reasons for imposing consecutive sentences on Counts 6 and 7.
The Attorney General counters that defendant forfeited his claims about sentencing error by failing to object to them. In the alternative, the Attorney General argues that, by adopting the original sentencing judge’s rational for the sentence on Count 4, the trial court exercised its discretion appropriately and defendant has failed to demonstrate affirmatively a failure to exercise discretion as to Counts 6 and 7.
In People v. Gonzalez (2003) 31 Cal.4th 745, 751, the Supreme Court explained the forfeiture rule in the context of discretionary sentencing decisions of the trial court as follows: “In [People v.] Scott [(1994) 9 Cal.4th 331], this court prospectively announced a new rule: A party in a criminal case may not, on appeal, raise ‘claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ if the party did not object to the sentence at trial. (Scott, supra, 9 Cal.4th at p. 353.) The rule applies to ‘cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons’ (ibid.), but the rule does not apply when the sentence is legally unauthorized (id. at p. 354).”
As to the issue of forfeiture, defendant’s trial counsel objected to the consecutive sentence on Count 4 on the grounds that it was “excessive” and “in the interest of justice, ” thereby preserving that contention on appeal. But his trial counsel made no objection to the consecutive sentences imposed on Counts 6 and 7. His contentions on appeal as to those sentences have therefore been forfeited. (People v. Gonzalez, supra, 31 Cal.4th at p. 755 [failure to object in the trial court on two of the three grounds raised on appeal forfeited appeal on those two grounds].)
As to defendant’s objection to the consecutive sentence on Count 4, the Supreme Court has stated the requirements for imposing such sentences as follows: “In deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists. (See § 669; Cal. Rules of Court, rule 4.425(a), (b).) Factual findings are not required. In imposing an upper term, the court must set forth on the record ‘facts and reasons’ (§ 1170, subd. (b)), including the ‘ultimate facts that the court deemed to be circumstances in aggravation.’ (Cal. Rules of Court, rule 4.420(e).) But it need only cite ‘reasons’ for other sentencing choices (§ 1170, subd. (c)), and the reasons given for imposing a consecutive sentence need only refer to the ‘primary factor or factors’ that support the decision to impose such a sentence (Cal. Rules of Court, rule 4.406(a), (b); see § 1170, subd. (c); see People v. Tran (1996) 47 Cal.App.4th 759, 774 [54 Cal.Rptr.2d 905])” (People v. Black (2007) 41 Cal.4th 799, 822.).
In sentencing defendant on Count 4, the trial court stated: “Count 4 is one third the midterm of three years, which is one year doubled to two years. Pursuant to the Three-Strikes law, that term is consecutive for the same reasons that [the original sentencing judge] ordered Counts 2 and 3 consecutive and because it concerns a different narcotic than in Count 1.” [¶]... [¶] “Okay, thank you. The term in Count 4 is consecutive for the same reasons that [the original sentencing judge] ordered Counts 2 and 3 consecutive and because it concerns a different narcotic than in Count 1 and because of the defendant’s prior criminal history.”
The trial court gave at least three reasons for imposing a consecutive sentence on Count 4: the same reasons the original sentencing judge relied upon in imposing sentence on Counts 2 and 3; the narcotics involved in Count 4 (oxycodone and morphine) were different than the narcotic in Count 1 (methamphetamine); and defendant’s criminal history. Thus, the record clearly reflects that the trial court exercised its discretion in a rational manner in imposing a consecutive sentence on Count 4. Moreover, that some of the reasons given were the same as those relied upon by the original sentencing judge does not suggest that the trial court refused or failed to exercise its sentencing discretion. Rather, at most, it appears that the trial court agreed with the original sentencing judge’s rationale as to Counts 2 and 3, and applied that rationale in modifying the sentence on Count 4 once Counts 2 and 3 were dismissed.
Defendant also argues that two of the reasons specified by the trial court-that the narcotics were different in Counts 1 and 4 and defendant’s criminal history-were improper criteria upon which to base a consecutive sentence under California Rules of Court, rule 4.425 because the different narcotics factor related to an element of the crime and defendant’s prior criminal history had already been used to enhance his sentence. Defendant, however, did not object on either of these grounds in the trial court. He therefore forfeited those claims. (People v. Gonzalez, supra, 31 Cal.4th at p. 755.)
C. Ineffective Assistance of Counsel
Defendant contends that he did not receive effective assistance of counsel at the resentencing hearing. According to defendant, his counsel’s failure to submit a sentencing memorandum, failure to point to mitigating factors, and failure to argue certain facts and law each fell below the standard for effective assistance of counsel and resulted in an excessive sentence.
To prevail on an ineffective assistance of counsel claim, a defendant must show that the conduct of his trial counsel about which he complains fell below the standard of reasonableness and that he was prejudiced by that conduct. (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) But, on appeal, we cannot determine a defendant’s claim of ineffective assistance of counsel unless the reasons for his trial counsel’s actions or inactions are reflected in the record. If the record sheds no light on why trial counsel acted or failed to act as challenged, we cannot determine an ineffective assistance claim, unless there is no plausible or satisfactory reason for his failure to act. (People v. Cunningham (2001) 25 Cal.4th 926, 1003; People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069.)
The record does not reflect why defendant’s trial counsel failed to submit a sentencing memorandum, failed to point to certain mitigating factors, or failed to argue the law and facts that defendant contends he should have argued during the sentencing hearing. And, we cannot conclude on this record that there are no plausible or satisfactory reasons for those alleged failures to act. Although a sentencing memorandum was not filed, defense counsel presumably made during oral argument the same arguments he would have submitted in writing. And, defense counsel’s decision to make certain arguments during the hearing-such as emphasizing the nonviolent nature of the crimes at issue-but not to make others-such as emphasizing that defendant cared for his son at the mother’s home where deadly weapons and narcotics were located-may well have been tactical. Thus, absent some further explanation for the reasons behind trial counsel’s alleged failures during the sentencing hearing, we cannot determine the ineffective assistance of counsel claim on appeal. The issue is “more appropriately litigated in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
DISPOSITION
The trial court’s orders on remand from which defendant appeals are affirmed.
We concur: TURNER, P. J., KRIEGLER, J.