Filed 3/22/18 P. v. Green 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

AARON MATTHEW GREEN,

Defendant and Appellant.

F072636

(Super. Ct. No. BF160541A)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge.
Jan B. Norman, 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, Stephen G. Herndon and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
A jury convicted appellant Aaron Matthew Green of four counts: willfully eluding a peace officer (Veh. Code, § 2800.2) (count 1), possession of a stolen vehicle (Pen. Code, § 496d) (count 2), willfully resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) (count 3), and driving without a valid license (Veh. Code, § 12500, subd. (a)) (count 4).
On October 26, 2015, Green was sentenced to an aggregate term of five years in state prison. Green received a three-year sentence for count 1, with the sentence for each of counts 2 through 4 to be served concurrently with the three-year sentence on count 1. The court also sentenced Green to two one-year enhancements based on two prior prison commitments under Penal Code section 667.5, subdivision (b), to be served consecutively to the three-year sentence on count 1.
Green does not challenge the underlying convictions on appeal. Instead, he challenges the imposition of one of the one-year enhancements based on a prior prison commitment that had been reduced to a misdemeanor under Proposition 47 prior to sentencing in this case. He also seeks appellate review of the personnel records reviewed under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). For the reasons set forth below, the judgment is modified to strike the one-year prior prison term enhancement, but otherwise affirmed.
PROCEDURAL BACKGROUND
After the jury returned its verdict, the court held a separate trial to prove that Green had served prior prison commitments under Penal Code section 667.5, subdivision (b). The district attorney presented evidence that Green was previously sentenced to 16 months in prison for possession of drugs or alcohol while incarcerated (Pen. Code, § 4573.8) and a 16-month sentence for possession of narcotics (Health & Saf. Code, § 11377, subd. (a)). In response, defense counsel noted that the conviction for possession of narcotics had been reduced to a misdemeanor under Proposition 47. The trial court acknowledged that the conviction had been reduced to a misdemeanor, but noted that it was not aware of any authority that Proposition 47 had any effect on finding a prior felony under Penal Code section 667.5, subdivision (b), true. Despite the redesignation of the possession of narcotics conviction to a misdemeanor, the court found it true that Green had served two prior felony commitments.
The issue was again raised at sentencing, and the court again acknowledged the issue. The court imposed the one-year enhancements despite the application of Proposition 47, but noted that “[m]aybe this is something that can be taken up [on] appeal.”
DISCUSSION
A. Proposition 47
As described, Green’s prior conviction for possession of narcotics, Health and Safety Code section 11377, subdivision (a), was redesignated as a misdemeanor on August 18, 2015, several months prior to his sentencing on October 26, 2015. Regardless, the court imposed a one-year enhancement under Penal Code section 667.5, subdivision (b), for the prior prison term.
On November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47 or the Act), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act reduced certain felonies to misdemeanors for eligible offenders. It created two separate mechanisms for redesignating the conviction as misdemeanors, depending on whether the offender is currently serving a sentence for an eligible felony conviction or has completed his sentence. (People v. Abdallah (2016) 246 Cal.App.4th 736, 743–744 (Abdallah).) Relevant to the instant appeal, Penal Code section 1170.18, subdivision (f), authorizes the court to redesignate convictions for defendants who have already completed their sentences. (Abdallah, supra, at pp. 743-744.) Based on its authority under section 1170.18, subdivision (f), the court redesignated Green’s prior conviction for possession of narcotics to a misdemeanor.
Penal Code section 667.5, subdivision (b), imposes a one-year enhancement for a prior separate prison term served on a felony conviction. Penal Code section 1170.18, subdivision (k), provides that once redesignated, prior convictions “shall be considered a misdemeanor for all purposes” except as it relates to possession or control of a firearm, an exception not applicable here. Because Green’s prior conviction was redesignated as a misdemeanor prior to his sentencing in October 2015 in this case, the enhancement pursuant to Penal Code section 667.5, subdivision (b), cannot be imposed. We have held that the plain language of the statute and its “‘for all purposes’” requirement precludes the imposition of the prior prison term enhancement under these circumstances. (People v. Call (2017) 9 Cal.App.5th 856, 865 (Call); People v. Kindall (2016) 6 Cal.App.5th 1199, 1205 (Kindall); Abdallah, supra, 246 Cal.App.4th at p. 746.)
Green successfully petitioned for redesignation prior to sentencing here. Accordingly, we apply Proposition 47 relief prospectively, as was done in Call, supra, 9 Cal.App.5th 856, Kindall, supra, 6 Cal.App.5th 1199, and Abdallah, supra, 246 Cal.App.4th 736.
B. Review of Pitchess Material
During the course of discovery, Green requested review of confidential personnel files relating to the arresting officer. Following review of the Pitchess material, the court denied the motion, and ordered the records sealed. Green requests we independently review the Pitchess hearing conducted by the trial court.
Pitchess motions are the well-settled mechanism by which defendants can screen law enforcement personnel files for evidence that may be relevant to their defense without compromising the officer’s reasonable expectation of privacy in those records. (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc).) Subject to various restrictions not relevant here, a trial court must conduct an in camera review of potentially relevant personnel files if the defendant makes a showing of good cause for the discovery. (Id. at pp. 1225–1226.)
This process is effectuated by having a custodian of records collect all potentially relevant documents from identified personnel files and present them to the trial court. 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.” (Mooc, supra, 26 Cal.4th at p. 1229.)
The trial court must then make a record of what documents it has examined to permit future appellate review. (Mooc, supra, 26 Cal.4th at p. 1229.) “If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined.” (Ibid.) These proceedings are then sealed. (Ibid.)
Upon appeal, we independently examine the record made by the trial court “to determine whether the trial court abused its discretion in denying a defendant’s motion for disclosure of police personnel records.” (People v. Prince (2007) 40 Cal.4th 1179, 1285.)
We have reviewed the full set of transcripts, files, and statements relevant to this issue. The trial court complied with the required Pitchess procedures. A custodian of records was present and placed under oath. The custodian testified he found and provided responsive documents. The court independently reviewed the relevant personnel file, which had been provided. Upon review of the records, the court noted that the documents did not contain any discoverable information. The proceedings were stenographically recorded. (Mooc, supra, 26 Cal.4th at p. 1229.) Our independent review finds the trial court did not abuse its discretion in determining that the motion be denied and no records be produced. The records in the personnel file were not related to “false reports or dishonesty” (People v. Arevalo (2018) 19 Cal.App.5th 652, 659) and were properly withheld from production.
DISPOSITION
The judgment is modified to strike one of the prior prison term enhancements pursuant to Penal Code section 667.5, subdivision (b). The trial court is directed to forward an amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.



MEEHAN, J.
WE CONCUR:



FRANSON, Acting P.J.



SMITH, J.