Opinion
C078768
05-24-2017
THE PEOPLE, Plaintiff and Respondent, v. LAFONZO RAY TURNER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F00045)
Defendant Lafonzo Ray Turner was involved in an altercation with a correctional officer after he disobeyed the officer's orders to "strip out" following a visit because he had an urgent need to use the restroom. A jury found him guilty of battery upon a nonconfined person and found an attached great bodily injury enhancement true. After admitting that he had a prior strike and had served two prior prison terms, the court sentenced defendant to 18 years in state prison.
On appeal, defendant asks us to independently review the sealed record of the hearing on his Pitchess motion to confirm that no discoverable evidence existed concerning the officer's use of excessive force. He also contends the abstract of judgment incorrectly reflects a $60 fee when the trial court orally pronounced a $30 fee. Having reviewed the sealed transcript of the Pitchess hearing, we conclude that no information was discoverable under Pitchess and its progeny. We agree the abstract of judgment erroneously reflects the fee imposed by the court under Government Code section 70373, and we direct the trial court to prepare a corrected abstract of judgment to reflect the proper fee amount. We otherwise affirm.
BACKGROUND
On September 14, 2013, defendant was an inmate at California State Prison, Sacramento. While visiting with an individual in the visitor's room, defendant told the correctional officers on duty that he needed to use the restroom. The inmate restroom was located in the "strip out room," which is a room where prisoners are searched before and after visits.
Correctional Officer Stephen Byers told defendant he would take him to the restroom once he returned from getting a bite to eat. After Officer Byers left, defendant asked Correctional Officer Kelley Moore if he could use the restroom. Officer Moore knew another inmate was using the restroom so she told him he would have to wait. Defendant became increasingly agitated and repeatedly used profanity, claiming an urgent need to use the restroom. Due to defendant's behavior, Officer Moore terminated his visit.
At the time, Officer Byers was in the "strip out room" with another inmate. Officer Moore opened the door and yelled to Officer Byers that she had terminated defendant's visit and that she would be escorting him back to the "strip out room" to process him out of the visitor's room. Officer Moore closed the door and turned to defendant for his identification card. Defendant stormed past her, opened the door, and entered the "strip out room" without authorization. Officer Moore followed.
Officer Byers approached defendant and told him to "strip out." Defendant responded, "Fuck that," and swatted Officer Byers's hand away from his arm. Both officers triggered their personal alarms.
Defendant walked to the toilet and began urinating. While standing behind defendant, Officer Byers commanded him to put his hands behind his back. Defendant refused. He again ordered defendant to put his hands behind his back so he could be cuffed. Defendant refused to comply. To prevent defendant from turning and urinating on them, Officer Byers put one hand on defendant's back and pushed him toward the wall.
Defendant continued to refuse to comply with the officers' commands that he submit to being handcuffed. Defendant suddenly spun around and used his left elbow to strike Officer Byers in his right ear, and then punched his left eye, causing a blow out orbital wall fracture of his left orbital socket. Byers also suffered a concussion as a result of the attack.
A melee ensued and several officers, who had arrived on scene, pulled Officer Byers from the fray. Defendant was eventually subdued and restrained. Defendant later said it was "personal" between him and Officer Byers. He also admitted he had been drinking.
Defendant testified on his own behalf. According to defendant, the officers denied his urgent requests to use the restroom even though the urinal was unoccupied. He claimed he followed Officer Moore's direction to go into the "strip out room" after his visit had been terminated. Once inside, he told Officer Byers he needed to urinate. Rather than allow him to use the restroom, however, Officer Byers told him to "strip out" and to turn around and "cuff up." He pulled away when Officer Byers tried to grab him and went to the toilet. He said Officer Byers aggressively pushed him into the wall, causing him to urinate on himself. Although video of the altercation showed defendant throwing the initial blow, defendant testified Officer Byers hit him first and he punched back in self-defense.
Defendant was convicted of battery on an unconfined person and the charged enhancement allegations were found true. The court sentenced defendant to an aggregate term of 18 years in prison. Defendant timely appealed.
DISCUSSION
I
Pitchess Motion
Prior to trial, defendant moved to discover complaints in Officer Byers's personnel files alleging he had used excessive force or the unlawful use of force. The trial court found defendant had satisfied the "low" good cause threshold on that issue, and conducted an in camera hearing with the custodian of records for Officer Byers's personnel records. (See City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 94 [good cause requirement embodies a relatively low threshold for discovery]; Evid. Code, § 1045, subd. (b).) After the in camera hearing, the court denied the motion, finding no records concerning the use of excessive force or complaints related to the unlawful use of force existed. Defendant requests that we review the in camera hearing to determine whether the trial court abused its discretion in so ruling. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221 ["A trial court's decision on the discoverability of material in police personnel files is reviewable under an abuse of discretion standard"].)
Evidence Code sections 1043 through 1045 and Penal Code sections 832.5, 832.7, and 832.8 codify Pitchess v. Superior Court, supra, 11 Cal.3d 531, which recognized that "a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer's personnel file that is relevant to the defendant's ability to defend against a criminal charge." (People v. Mooc (2001) 26 Cal.4th 1216, 1219, 1226.) " '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.' " (People v. Jackson, supra, 13 Cal.4th at p. 1220.)
If a defendant seeking to discover an officer's personnel records makes "a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion." (People v. Mooc, supra, 26 Cal.4th at p. 1226.) "The trial court 'shall examine the information in chambers' [citation], 'out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present.' " (Ibid.; Evid. Code, §§ 915 & 1045, subd. (b).) Thus, "both Pitchess and the statutory scheme codifying Pitchess require the intervention of a neutral trial judge, who examines the personnel records in camera, away from the eyes of either party, and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations." (Mooc, at p. 1227.)
As requested, we have reviewed the sealed transcript of the in camera proceeding in which the trial court questioned the custodian of records under oath regarding Officer Byers's personnel records. Based on our review, we conclude the trial court did not abuse its discretion in finding that no disclosable evidence responsive to defendant's request existed.
II
Abstract Of Judgment
Defendant contends the abstract of judgment improperly reflects the amount of the fee the court imposed pursuant to Government Code section 70373, which is statutorily limited to $30 per conviction. (Gov. Code, § 70373, subd. (a) [court facilities fee].) Although the court orally pronounced a $30 fee, the minute order and the abstract of judgment list the amount of the fee as $60.
Appellate courts may order correction of abstracts of judgment and minute orders that do not accurately reflect the oral statements of sentencing courts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) "[T]he abstract of judgment is not the judgment of conviction and it cannot add to or modify the judgment which it purports to digest or summarize." (People v. Caudillo (1980) 101 Cal.App.3d 122, 126.)
Here, the minute order and abstract of judgment do not accurately reflect the $30 fee imposed by the court under Government Code section 70373. We therefore direct the trial court to correct the abstract of judgment and minute order to reflect the court's oral pronouncement of a $30 court facilities fee.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the minute order and the abstract of judgment to reflect a $30 fee imposed pursuant to Government Code section 70373 and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Duarte, J.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.