Filed 12/21/17 P. v. Dhillon CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PRITPAL SINGH DHILLON,

Defendant and Appellant.

F072634

(Super. Ct. No. LF010627A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey and Lorna H. Brumfield, Judges.†
Erin J. Radekin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

Defendant Pritpal Singh Dhillon was charged with falsely personating another (Pen. Code, § 529, subd. (a)(3) [count 1]); driving a motor vehicle without a valid driver’s license (Veh. Code, § 12500, subd. (a) [count 2]); falsely representing or identifying himself as another person to a peace officer (§ 148.9, subd. (a) [count 3]); giving false information to a peace officer (Veh. Code, § 31 [count 4]); failing to possess a valid driver’s license while driving a motor vehicle (id., § 12951, subd. (a) [count 5]); placing, installing, affixing, or applying transparent material upon the windshield or windows of a motor vehicle that alters the color or reduces the light transmittance of the windshield or windows (id., § 26708.5 [count 6]); and failing to provide evidence of financial responsibility for the motor vehicle (id., § 16028, subd. (a) [count 7]). The jury found him guilty as charged on counts 1 through 4. On the prosecutor’s motion, counts 5 through 7 were dismissed. As to count 1, the trial court granted formal probation and ordered defendant to serve 120 days in custody. As to counts 2 through 4, it denied probation and imposed concurrent 120-day terms.
On appeal, defendant contends (1) the trial court improperly imposed separate sentences on counts 1, 3, and 4; (2) the court should have reduced count 1 from a felony to a misdemeanor; and (3) the October 23, 2015, minute order should be modified to permit searches for “ ‘drugs or narcotics’ ” only. He also asks us to review the sealed reporter’s transcript of an August 24, 2015, in-camera hearing and determine whether the court properly ruled on his Pitchess motion.
For the reasons set forth below, we conclude execution of punishment on counts 3 and 4 must be stayed and the October 23, 2015, minute order must be corrected. We also find the trial court did not abuse its discretion when it declined to reduce count 1 from a felony to a misdemeanor and when it concluded a certain peace officer’s personnel records contained no discoverable material.
STATEMENT OF FACTS
On May 19, 2015, at approximately 3:00 p.m., Officer Miller of the Taft Police Department pulled over defendant’s silver BMW. Defendant provided proof of vehicle registration but was unable to provide either a driver’s license or proof of insurance. He identified himself as Amanpal Dhillon and gave a birthdate of January 30, 1991. Miller confirmed with the dispatcher that someone named Amanpal Dhillon had a valid driver’s license and thereafter issued citations for failing to possess this license, failing to provide proof of insurance, and having tinted windows.
After the traffic stop, Miller returned to police headquarters. There, the dispatcher showed him a Department of Motor Vehicles (DMV) printout for Amanpal Dhillon. After Miller examined this printout, which contained a photograph, he realized defendant falsely identified himself. The dispatcher then retrieved a DMV printout for Pritpal Dhillon. After Miller examined this printout, which contained a photograph, he verified Pritpal Dhillon was the individual he had pulled over.
Defendant was arrested at his residence. In an interview, after being advised of his Miranda rights, he admitted he gave his brother’s name during the traffic stop because his own driver’s license had been suspended.
DISCUSSION
I. The Attorney General concedes execution of punishment on counts 3 and 4 should have been stayed pursuant to section 654.
“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) Moreover, “because [section 654] is intended to ensure that defendant is punished ‘commensurate with his culpability’ [citation], its protection has been extended to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (Ibid.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.” (Ibid.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (Ibid.)
The Attorney General concedes the offenses underlying counts 1, 3, and 4 “all had the same objective—avoiding responsibility for driving on a suspended license” and the sentences on counts 3 and 4 should have been stayed. We accept this concession.
II. The trial court did not abuse its discretion when it declined to reduce count 1 from a felony to a misdemeanor.
a. Background.
Prior to trial, defendant rejected a plea agreement that, inter alia, would have reduced count 1 from a felony to a misdemeanor.
At sentencing, defense counsel asked the court to reduce count 1 from a felony to a misdemeanor. He argued:
“Your Honor, I would first like to draw your attention to [defendant]’s record. He has three prior misdemeanor convictions. They span approximately a period of 15 years. The first is in 2001 for trespassing, one of the most minor offenses in the Penal Code. Two years later, he was place[d] on probation for a . . . hit and run misdemeanor, another fairly minor offense, but that is the most serious offense on his record. [¶] It’s over ten years old. His most recent and final conviction is in 2011 when he was, again, placed on probation for driving on a suspended license. I would argue that he has a very minor criminal history which goes to support my request that the Court exercise its discretion on this case based on the facts and based on the history . . . . [¶] . . . [¶]
“. . . On . . . defendant’s record, the unserious conduct in this case, I’ll speak to that again. But I would ask the Court to make this a misdemeanor. I think the nonserious nature of this case is highlighted by the unfortunate – for whatever reason the [district attorney] has not appeared at this sentencing. [¶] For whatever reason, . . . I’d submit that that further highlights the nonseriousness . . . of this case from their perspective, from my perspective, and I think from a general perspective.
“What happened on the day in question was a series of bad judgment calls by my client. There was no reckless behavior. He wasn’t pulled over for speeding. . . . [N]o one was in danger. He made an awful judgment call when he gave the wrong information to the officer. [¶] The evidence was when he was arrested, he did, in fact, admit that he was . . . giving the name of his brother, so at one point, he did admit culpability. He exercised his right to trial. I don’t think there should be any penalty for him choosing to do that.
“So my . . . request is under [s]ection 17, it would just be the first count, that that would be made a misdemeanor.”
The court denied the request:
“I have taken a look and I have considered the probation report. I’ve considered [defense counsel]’s comments.[ ] I’m not willing to reduce this to a misdemeanor at this point because . . . he was convicted of a felony.
“However, I do agree with [defense counsel] that the prior record of . . . defendant basically shows that he just has difficulty following the rules, and he needs to follow the rules and the laws. He needs to get [a] license if he’s going to drive. He needs to accept responsibility for what he does. [¶] And I do think that that is his problem.”
Later, the court directly addressed defendant:
“I cut you a break on this sentence. I know you don’t think so but I hope you use this as an opportunity to follow the rules. And I don’t want to see you crossing over any further. There’s a distinct possibility if you . . . complete your probation and you don’t get any more citations or problems, that you can get this expunged from your record in three years. [¶] I would strongly suggest that you do that so you can go on and be a productive member of society but if you continue to escalate in your crimes, we’ll see you again and you may end up in prison.”
b. Standard of review.
“A trial court is vested with abundant discretion in sentencing. An abuse is found only where its choice is ‘arbitrary or capricious or “ ‘exceeds the bounds of reason, all of the circumstances being considered.’ ” [Citations.]’ [Citations.]” (People v. Trausch (1995) 36 Cal.App.4th 1239, 1247.)
c. Analysis.
Section 17, subdivision (b), “authorizes the reduction of ‘wobbler’ offenses—crimes that, in the trial court’s discretion, may be sentenced alternately as felonies or misdemeanors . . . .” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).) Factors that inform the exercise of this discretion include “ ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, [and] his traits of character as evidenced by his behavior and demeanor at the trial.’ ” (Id. at p. 978.) “When appropriate, judges should also consider the general objectives of sentencing” (ibid.), e.g., protecting society; punishing the defendant; encouraging the defendant to lead a law abiding life in the future and deterring him from future offenses; deterring others from criminal conduct by demonstrating its consequences; preventing the defendant from committing new crimes by isolating him for the period of incarceration; securing restitution for the victims of crime; and achieving uniformity in sentencing (ibid., fn. 5).
On appeal, “ ‘[t]he 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.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
In the instant case, defendant emphasizes (1) the conduct underlying his conviction on count 1 “did not result in harm, or involve a threat or risk of physical harm, to any person or property”; and (2) his prior criminal history was “insignificant.” We do not believe these assertions sufficiently demonstrate the court’s refusal to reduce count 1 from a felony to a misdemeanor was irrational or arbitrary. As noted, two of the factors that inform the exercise of discretion under section 17, subdivision (b), are “ ‘the nature and circumstances of the offense’ ” and “ ‘the defendant’s appreciation of and attitude toward the offense’ ” (Alvarez, supra, 14 Cal.4th at p. 978). The record shows defendant was convicted of driving with a suspended license and placed on probation in 2012. Nonetheless, three years later, he once again drove with a suspended license. When defendant was pulled over, he represented himself as his brother Amanpal, a fabrication he admits on appeal “could have resulted in his brother . . . having to pay a monetary penalty and being convicted of infractions.” (Italics & fn. omitted.) Yet he acknowledged his dishonesty only after law enforcement discovered his lie and arrested him. In addition, while defendant believes his criminal history militates in favor of a reduction, one could reasonably deduce from this history that, despite numerous opportunities to do so, he still refuses to follow the rules, refuses to accept the legal repercussions of his actions (e.g., by leaving the scene of a vehicular accident, by wrongly implicating his brother), and refuses to rehabilitate his behavior. We may presume the court’s decision not to reduce count 1 from a felony to a misdemeanor accomplishes legitimate sentencing objectives. Now a convicted felon, defendant may finally comprehend the gravity of his misconduct, the continuance of which resulted in a harsher punitive response, and attempt to lead a law-abiding life. We shall not disturb the court’s ruling.
III. The October 23, 2015, minute order must be amended to correspond with the trial court’s oral pronouncement.
At sentencing, the trial court pronounced: “[Defendant]’s going to be subject to search with or without a warrant of arrest or reasonable cause for drugs or narcotics.” However, the October 23, 2015, minute order reads:
“Defendant to submit voluntarily to a search of his/her person, vehicle or residence at the request of any peace officer or probation officer, day or night, without the necessity of a search warrant, without probable cause, for stolen property, narcotics or dangerous drugs.” (Capitalization omitted.)
On appeal, defendant contends the minute order should be “modified to reflect the search condition as originally ordered, i.e., to apply to ‘drugs and narcotics’ only.” The Attorney general does not object.
“When there is a discrepancy between the record of the court’s oral pronouncement of judgment and the clerk’s minute order, the oral pronouncement controls.” (People v. Hartley (2016) 248 Cal.App.4th 620, 637, citing People v. Delgado (2008) 43 Cal.4th 1059, 1070.) The October 23, 2015, minute order must be amended accordingly.
IV. The trial court did not abuse its discretion when it concluded Miller’s personnel records contained no discoverable material.
a. Background.
On July 31, 2015, defendant filed a motion for discovery of Miller’s personnel records. Specifically, he sought “[a]ny evidence of, or complaints of” “false statements in reports,” “fabrication of witness testimony in reports,” “false testimony,” “falsification of probable cause and/or reasonable suspicion,” “acts involving moral turpitude,” and “dishonesty.” (Boldface omitted.) On August 24, 2015, the court conducted an in-camera hearing, found no discoverable material, and sealed the reporter’s transcript.
On appeal, defendant asks us to “review the sealed transcript of the in[-]camera proceedings which was filed . . . as part of the augmented record on appeal” and “determine whether the superior court abused its discretion in refusing to disclose information in Miller’s personnel file.” (Italics omitted.) The Attorney General does not oppose this request.
b. Standard of review.
“A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion.” (People v. Hughes (2002) 27 Cal.4th 287, 330.)
c. Analysis.
“ ‘A criminal defendant has a limited right to discovery of a peace officer’s personnel records. [Citation.] Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045.’ [Citation.]” (People v. Yearwood (2013) 213 Cal.App.4th 161, 180; see People v. Mooc (2001) 26 Cal.4th 1216, 1220 (Mooc) [California Legislature codified Pitchess motions].) “[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant.” (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines), citing Evid. Code, § 1043, subd. (b).) “Good cause for discovery exists when the defendant shows both ‘ “materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ [Citation.]” (Gaines, supra, at p. 179.)
“If the trial court concludes the defendant has . . . made a showing of good cause, the custodian of records should bring to court all documents ‘potentially relevant’ to the defendant’s motion” (Mooc, supra, 26 Cal.4th at p. 1226) and “the court must review the requested records in camera to determine what information, if any, should be disclosed” (Gaines, supra, 46 Cal.4th at p. 179). “Subject to statutory exceptions and limitations . . . the trial court should then disclose to the defendant ‘such information [that] is relevant to the subject matter involved in the pending litigation.’ ” (Mooc, supra, at p. 1226, quoting Evid. Code, § 1045, subd. (a).)
Here, the court followed the proper procedure and created an adequate record of the August 24, 2015, in-camera hearing. (See Mooc, supra, 26 Cal.4th at pp. 1228-1229.) We have examined Miller’s confidential personnel files. The court did not fail to disclose materials “so clearly pertinent to the issues raised by the Pitchess discovery motion that failure to disclose them was an abuse of Pitchess discretion.” (People v. Samayoa (1997) 15 Cal.4th 795, 827.) Thus, it did not abuse its discretion.
DISPOSITION
We order the trial court to (1) stay execution of punishment on counts 3 and 4; and (2) modify the October 23, 2015, minute order to read:
“Defendant to submit voluntarily to a search of his/her person, vehicle or residence at the request of any peace officer or probation officer, day or night, without the necessity of a search warrant, without probable cause, for narcotics or dangerous drugs.”
In all other respects, the judgment is affirmed.