Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA087041, Eleanor J. Hunter, Judge.
Jean Ballantine, 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, Michael C. Keller and David A. Wildman, Deputies Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
In May 2008, we conditionally reversed the convictions of defendant and appellant Kennard Watkins (defendant) and remanded for the trial court to conduct a Pitchess hearing. On remand, the trial court conducted the Pitchess hearing and ordered discovery disclosed to defendant. Defendant was unable to develop any evidence to establish that he had been prejudiced at his trial by the erroneous denial of discovery because the persons identified in the Pitchess materials were unavailable, could not remember the relevant incident, or refused to cooperate. The trial court ordered defendant’s conviction reinstated and, per our mandate, resentenced defendant.
People v. Watkins (May 16, 2008, B200861) [nonpub. op.].
For purposes of this opinion, we adopt the spelling of defendant’s first name reflected in the parties’ briefs.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We conclude that, even if defendant’s counsel rendered ineffective assistance by not moving for additional Pitchess discovery pursuant to Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107 (Alvarez), defendant cannot demonstrate the prejudice necessary to establish a violation of his Sixth Amendment right to the effective assistance of counsel. We also reject defendant’s other claims of error.
BACKGROUND
As reflected in our prior opinion, the evidence at defendant’s trial showed that defendant was arrested on a parole warrant by Los Angeles Police Department officers Enrique Hernandez and Jose Diaz-Ibarra. The officers discovered rock cocaine and a glass pipe in defendant’s possession.
Prior to his trial, defendant made a Pitchess motion seeking the disclosure of complaints against Officers Hernandez and Diaz-Ibarra indicating dishonesty and filing false police reports. The trial court denied the motion on the ground that it was not supported by a sufficient showing of good cause. A jury subsequently convicted defendant of one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and one count of misdemeanor possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)).
Defendant admitted three prior strikes; the trial court struck two of those pursuant to defendant’s Romero motion. The trial court sentenced defendant to an aggregate term of seven years in state prison, consisting of (1) the middle term of two years on the possession of a controlled substance count, doubled to four years due to defendant’s prior strike conviction; (2) a consecutive three-year violent felony enhancement pursuant to Penal Code, section 667.5, subdivision (a); (3) a concurrent one-year prior-prison-term enhancement, pursuant to section 667.5, subdivision (b); and (4) a concurrent six-month sentence on the misdemeanor count.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Statutory references are to the Penal Code unless stated otherwise.
Defendant appealed. This court conditionally reversed his convictions on the ground that defendant’s Pitchess motion was supported by a plausible allegation of police misconduct and that the trial court had erred by not conducting an in camera inspection of the arresting officers’ personnel records. We also held that the trial court had erred by imposing the three-year violent felony enhancement pursuant to section 667.5, subdivision (a). We directed the trial court on remand to conduct an in camera inspection of the arresting officers’ personnel records to determine whether they contained information relevant to defendant’s misconduct defense. If the personnel records contained no such information or defendant was unable to demonstrate he was prejudiced at his original trial by the denial of such discovery, the convictions were to be reinstated and the trial court was to resentence defendant.
On remand, the trial court held an in camera Pitchess hearing and ordered discovery turned over to defendant relating to a single incident involving Officer Diaz-Ibarra. As discussed post, defense counsel investigated the Pitchess information but because witnesses could not be located, declined to cooperate, or could not recall the incident, he was unable to develop information relevant to defendant’s misconduct defense. The trial court and defense counsel concluded nothing further could be done concerning the Pitchess proceeding.
The trial court found that defendant had failed to establish prejudice from its original error and reinstated defendant’s convictions. On resentencing, the trial court again imposed an aggregate seven-year term in state prison. The trial court structured the sentence as follows: (1) the upper term of three years on the possession of a controlled substance count, doubled to six years due to defendant’s prior strike conviction; (2) a consecutive one-year prior-prison-term enhancement pursuant to section 667.5, subdivision (b); and (3) a concurrent six month sentence on the misdemeanor count. Defendant timely appealed.
The trial court’s June 1, 2009 minute order and the July 24, 2009 abstract of judgment both incorrectly reflect the sentence as including a three-year violent felony enhancement pursuant to section 667.5, subdivision (a). When there is a discrepancy between the trial court’s oral pronouncement of sentence and the minute order or abstract of judgment, the trial court’s oral pronouncement controls. (People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.) We order the minute order and the abstract of judgment corrected.
DISCUSSION
A. Failure to Obtain Additional Pitchess Discovery
1. Additional Background
After the in camera hearing, the trial court ordered disclosure of records concerning an allegation of misconduct in 2003 against Officer Diaz-Ibarra and two other officers. According to defense counsel, the materials identified two civilians and several police officers as witnesses or complainants to the alleged misconduct. Defense counsel was unable to locate the civilians. Some of the officers said they did not remember the incident; others refused to speak with defense counsel or failed to return his telephone calls. Defense counsel subpoenaed five of the officers into court, but all of them failed to appear. On May 22, 2009, the trial court issued body attachments for those officers.
Three of the officers appeared in court on May 29, 2009. Defense counsel reported that he was unable to get any information out of the officers because they either did not remember the incident or refused to answer questions. Defense counsel asked the trial court to put the officers under oath so that he could examine them. The trial court refused. Two other officers appeared in court on June 1, 2009. Those officers also did not remember the incident or refused to speak about it.
2. No Trial Court Error
a. Initial Pitchess Disclosure
We have obtained and augmented the record with the Pitchess materials and obtained the trial court’s certification that the materials are those it reviewed during its in camera hearing. (See People v. Mooc (2001) 26 Cal.4th 1216, 1229-1230 (Mooc).) Defendant requests that we review the materials to determine whether the trial court ordered disclosure of all discoverable material. We review the trial court’s decision to disclose or withhold Pitchess materials for abuse of discretion. (Id. at p. 1228.)
We have reviewed the sealed transcripts of the trial court’s in camera hearing and the Pitchess materials reviewed by the trial court. We conclude that the trial court ordered disclosure of all potentially relevant material. There is nothing in the Pitchess materials that indicates an abuse of discretion by the trial court.
b. Supplemental Pitchess Disclosure
Defendant asserts that the trial court erred by failing sua sponte to order disclosure of additional witness statements and reports from the Pitchess material when it became apparent that defense counsel would be unable meaningfully to investigate the material provided in the initial disclosure. We disagree.
The record does not reveal the precise content of the Pitchess disclosure provided to defendant. Generally, however, “the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer. [Citation.] That practice ‘imposes a further safeguard to protect officer privacy where the relevance of the information sought is minimal and the officer’s privacy concerns are substantial.’ [Citation.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.)
In Alvarez, supra, 117 Cal.App.4th 1107, a defendant filed a Pitchess motion to discover complaints of excessive violence involving several deputy sheriffs, including Deputy Etter. The trial court granted the motion and ordered disclosure of the fact that Deputy Summer had lodged a complaint against Deputy Etter alleging “‘workplace violence.’” (Id. at p. 1109.) Deputy Summer, however, refused to discuss the complaint with defense counsel’s investigator. The defendant then filed a supplemental Pitchess motion seeking statements made by Deputy Summer with respect to his complaint against Deputy Etter. The supplemental motion was supported by a declaration from the defense investigator averring that Deputy Summer had refused to speak with him about the complaint filed against Deputy Etter. The trial court denied the supplemental motion. (Id. at p. 1110.)
The defendant sought a writ of mandate directing the trial court to grant the supplemental motion. (Alvarez, supra, 117 Cal.App.4th at p. 1110.) The Court of Appeal granted the writ. (Id. at p. 1115.) The appellate court held that the defendant’s “ability to investigate [the Pitchess information] to determine if it would lead to the discovery of admissible evidence has been stymied by Deputy Summer’s refusal to cooperate. The only way petitioner can effectively investigate this matter before trial is to be given the deputy’s statements. [The defendant] therefore has established ‘good cause’ for the information within the meaning of [Evidence Code] section 1043, subdivision (b)(3). To deny him access to this information would constitute an abuse of discretion.” (Id. at p. 1113.)
Relying on Alvarez, supra, 117 Cal.App.4th 1107, defendant in this case argues that, because the persons identified in the Pitchess materials disclosed to defendant were unavailable or could not recall or refused to discuss the relevant incident, good cause existed for defendant to obtain further discovery.
Unlike the situation in Alvarez, defendant in this case made no supplemental Pitchess motion. Pitchess discovery is governed by a statutory scheme (§§ 832.7, subd. (a), 832.8; Evid. Code, §§ 1043-1045) that attempts carefully to balance “the accused’s need for disclosure of relevant information with the law enforcement officer’s legitimate expectation of privacy in his or her personnel records.” (Mooc, supra, 26 Cal.4th at p. 1220.) To obtain Pitchess discovery, a defendant must file a written, noticed motion that sets forth, inter alia, the records or information sought. (Evid. Code, §§ 1043, subds. (a), (b)(2).) The motion must be supported by affidavits establishing good cause. (Evid. Code, § 1043, subd. (b)(3).) “No hearing upon a motion for [Pitchess] discovery... shall be held without full compliance with the notice provisions... except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records.” (Evid. Code, § 1043, subd. (c).) “[T]he Legislature was [thus] careful to give the employing agency and the peace officer ‘“the right to refuse to disclose any information concerning the officer or complaints or investigations... in both criminal and civil proceedings.”’ [Citation.] Such a right would be nullified if a hearing on the question of disclosure could be held absent notice to the [employing agency and the] individual whose records were involved.” (City and County of San Francisco v. Superior Court (1993) 21 Cal.App.4th 1031, 1035.)
These same procedural safeguards apply when a defendant seeks additional discovery, such as witness statements, under the rule of Alvarez, supra, 117 Cal.App.4th 1107. To obtain supplemental discovery, the defendant must file a noticed motion that “meet[s] the requirements applicable to the initial Pitchess motion.” (City of Tulare v. Superior Court (2008) 169 Cal.App.4th 373, 382.) “A properly noticed motion does not restrict disclosure of the information; it merely allows a sufficient time for the law enforcement agency and its officers to challenge and scrutinize the adequacy of the motion in question. Thus the balance between a fair trial and the officer’s interest in privacy is maintained.” (Id. at p. 383.)
Defendant in this case did not file a written, noticed motion for supplemental Pitchess discovery. Accordingly, the trial court had no authority-let alone a sua sponte duty, as defendant’s argument implies-to order the disclosure of any additional information from Deputy Diaz-Ibarra’s personnel records. The trial court did not err.
b. Ineffective Assistance of Counsel
Defendant argues that, because his defense counsel failed to move for additional Pitchess discovery, he rendered constitutionally ineffective assistance. “The Sixth Amendment entitles criminal defendants to the ‘“effective assistance of counsel”’-that is, representation that does not fall ‘below an objective standard of reasonableness’ in light of ‘prevailing professional norms.’ [Citations.]” (Bobby v. Van Hook (2009) __ U.S. __ [130 S.Ct. 13, 16]; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); In re Resendiz (2001) 25 Cal.4th 230, 244, abrogated on another ground by Padilla v. Kentucky (2010) 130 S.Ct. 1473, 1484.) To establish a violation of that right, a defendant must establish “two components: ‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ [Citation.]” (Williams v. Taylor (2000) 529 U.S. 362, 390-391; see also Strickland, supra, 466 U.S. at p. 687; People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson).) We review the record independently to determine whether counsel’s performance was deficient and, if so, whether defendant was prejudiced. (See In re Resendiz, supra, 25 Cal.4th at pp. 248-249.) If defendant fails to establish either deficient performance or prejudice, we must reject defendant’s claim; we need not resolve both prongs of the inquiry. (Strickland, supra, 466 U.S. at pp. 697.)
A basic duty of the criminal defense attorney is to take reasonable steps to investigate the facts pertaining to his client’s defense. (See, e.g., Strickland, supra, 466 U.S. at p. 691; In re Jones (1996) 13 Cal.4th 552, 565-567; In re Cordero (1988) 46 Cal.3d 161, 184.) Pitchess discovery is one means of conducting such an investigation, and the right of an accused to seek additional Pitchess discovery when the typical disclosure proves inadequate is well established. (City of Tulare v. Superior Court, supra, 169 Cal.App.4th at p. 382; Alvarez, supra, 117 Cal.App.4th at p. 1113; see also Pitchess, supra, 11 Cal.3d at p. 537; People v. Matos (1979) 92 Cal.App.3d 862, 867-868; Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-829 [defendant may move for further discovery if “names, addresses and telephone numbers” of complainants and witnesses “prove inadequate”].; see generally, Levenson, Cal. Criminal Procedure (2009-2010 ed.) § 16:29, fn. 1; Simons, Simons Cal. Evidence Manual (2008-2009 ed.) § 5:80.) Even if, under the circumstances of this case, there was ineffective assistance of counsel by not moving for additional discovery, defendant cannot establish the necessary prejudice. Defendant must show a reasonable probability “that, ‘“‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”’ [Citations.]” (People v. Anderson, supra, 25 Cal.4th at p. 569.) Defendant cannot meet that burden. As discussed, we have augmented the record on appeal to include the complete Internal Affairs file pertaining to the incident that the trial court ordered disclosed. We have carefully reviewed all of the information that could have been disclosed to defendant had he successfully sought additional Pitchess discovery. We are convinced that there is no reasonable probability that the information contained in the Pitchess materials would have led to the discovery of admissible evidence that might have assisted defendant’s case at trial. Accordingly, we conclude as a matter of law that defendant cannot establish that he was prejudiced by any deficient performance by defense counsel.
See ante, footnote 6.
B. No Sentencing Error
As discussed, the trial court originally sentenced defendant to an aggregate prison term of seven years, consisting of the middle term of two years on the cocaine possession count, doubled due to defendant’s prior strike, plus a three-year violent-felony enhancement pursuant to section 667.5, subdivision (a). On defendant’s first appeal, we held the trial court erred in imposing the section 667.5, subdivision (a) enhancement and remanded for resentencing in the event defendant’s conviction was reinstated. On remand, the trial court again imposed an aggregate seven-year sentence, this time imposing and doubling the upper term of three years on the cocaine possession count and adding a consecutive one-year prior-prison-term enhancement. The trial court stated that it imposed the upper term sentence “based on defendant’s history.” On this appeal, defendant argues that the trial court improperly imposed the upper-term sentence on remand because nothing about defendant’s history had changed between his original sentencing and the sentencing hearing on remand.
We review the trial court’s sentencing choice for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; see also Cal. Rules of Court, rule 4.409 [relevant criteria “will be deemed to have been considered unless the record affirmatively reflects otherwise”].)
Rule references are to the California Rules of Court.
Section 1170, subdivision (b) mandates that a sentencing court “shall select the term which, in the court’s discretion, best serves the interests of justice.” A defendant’s criminal history is an appropriate consideration in selecting a term of imprisonment. (Rules 4.420(b), 4.421(b)(2), (4).) In this case, defendant was an admitted three-strike offender whose prior felonies included robbery and kidnapping. Defendant was sentenced as a second-strike offender only because the trial court granted his Romero motion as to two of his prior strike convictions. Furthermore, as the trial court remarked during defendant’s first sentencing hearing, defendant was on parole when he committed his crimes in this case. It appears the only reason that the trial court did not impose a full three-strike sentence was because of the nature of the crimes in this case, which were nonviolent possession offenses. Defendant has identified no other mitigating factors. Accordingly, defendant’s criminal history provided ample support for the trial court’s decision to impose an upper-term sentence.
Citing People v. Tran (1996) 47 Cal.App.4th 759 (Tran) and People v. Swanson (1983) 140 Cal.App.3d 571 (Swanson), defendant argues that it is impermissible for a trial court to select a term of imprisonment and then “reason backward” to justify it. We are not persuaded. In both Tran and Swanson, the record established that the trial judge arbitrarily had selected a prison term and then, in effect, manipulated the sentencing criteria to justify imposing it. (See Tran, supra, 47 Cal.App.4th at pp. 773-774 [trial judge determined to give codefendants the same sentence, stating with respect to one defendant, “‘hopefully I can get there’”]; Swanson, supra, 140 Cal.App.3d at p. 574 [trial court is “not permitted to reason backward to justify a particular length sentence which he arbitrarily determines”].) The record in this case does not affirmatively indicate that the trial court arbitrarily selected seven years as the appropriate sentence, and then manipulated the sentencing criteria to justify it.
Doubtless, one might infer from the record that the trial court thought a seven-year aggregate term to be an appropriate punishment. But there is nothing wrong with that, as long as the trial court’s ultimate sentencing decision was guided by consideration of appropriate sentencing criteria. “‘A judge’s subjective determination of the value of a case and the appropriate aggregate sentence, based on the judge’s experiences with prior cases and the record in the defendant’s case, cannot be ignored. A judge’s subjective belief regarding the length of the sentence to be imposed is not improper as long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria. [Citations.]... “In making its sentencing choices in the first instance the trial court undoubtedly considered the overall prison term to be imposed and was influenced in its choices by the length of the enhancements.”’ [Citations.]” (People v. Calderon (1993) 20 Cal.App.4th 82, 88 (Calderon).) Consistent with this observation, courts have affirmed sentences imposed after a remand in circumstances similar to this case. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1264; People v. Kelly (1999) 72 Cal.App.4th 842, 846-847 [“While it must follow the pertinent statutory guidelines, the court may keep in mind the length of a sentence it thinks appropriate for a defendant and rule accordingly”]; People v. Stevens (1988) 205 Cal.App.3d 1452, 1456-1458; Calderon, supra, 20 Cal.App.4th at pp. 87-88; see also People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615 [after remand, trial court properly imposed upper term on base offense rather than the middle term originally imposed].)
For example, in People v. Burbine, supra, 106 Cal.App.4th 1250, the defendant was convicted of three sex offenses. The trial court imposed the middle term on the base count and sentenced the defendant to an aggregate term of 16 years. (Id. at p. 1254.) One of the subordinate counts was reversed on appeal and the case was remanded for resentencing. (Ibid.) On remand, the trial court imposed the upper term on the base count, and again imposed an aggregate term of 16 years. (Id. at p. 1255.) In doing so, the judge cited three aggravating factors to justify the upper term sentence. (Ibid.) On appeal, the defendant argued, inter alia, that the sentence on remand was improper under Swanson, supra, 140 Cal.App.3d 571. The appellate court disagreed, noting that “a judge’s subjective belief regarding the length of sentence to be imposed is not improper so long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria.” (People v. Burbine, supra, 106 Cal.App.4th at p. 1264.) Moreover, the court stated, “there is nothing in the record in this case to indicate that, on resentencing, the trial judge was reasoning backward from a subjectively selected sentence.” (Ibid.) Rather, the trial court had “exercised [its] sentencing discretion based on an analysis of legitimate factors.” (Ibid.)
For the reasons stated, the record supports the conclusion that the trial court based defendant’s sentence on appropriate sentencing criteria. The record does not support the conclusion that the trial court selected an arbitrary term, and then manipulated the sentencing criteria to justify the sentence. Defendant has failed to demonstrate sentencing error.
DISPOSITION
The judgment is affirmed. The minute order and abstract of judgment are to be modified so as not to reflect the sentence as including a three-year violent felony enhancement pursuant to section 667.5, subdivision (a).
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.