P. v. Nix
Filed 8/31/07 P. v. Nix CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. BRANDON DEJUAN NIX, Defendant and Appellant. | B191854 (Los Angeles County Super. Ct. No.YA059803) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Andrew C. Kauffman, Judge. Modified and, as so modified, affirmed.
Gail Harper, 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, Assistant Attorney General, Keith H. Borjon and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant Brandon Dejuan Nix appeals from the judgment entered following a jury trial that resulted in his convictions for first degree murder, attempted murder, and evading an officer with willful disregard. Nix was sentenced to a prison term of 144 years to life.
Nix contends the trial court erred by imposing a ten-year Penal Code section 186.22[1]gang enhancement. He also requests that this court review the sealed record of the trial courts Pitchess[2]examination to determine whether the trial court abused its discretion by failing to order additional disclosures. We agree that the trial court erred by imposing a ten-year sentence rather than a 15-year parole eligibility minimum on the gang enhancement, and modify the judgment accordingly. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
In the early morning hours of October 2, 2004, Nix saw Jason Hagan and Adam Ermitano outside a Los Angeles club. Nix, who was a member of the 107 Hoover gang, asked the men where they were from, which Hagan understood as an invitation to identify their gang affiliations. When Hagan and Ermitano truthfully responded that they were not gang members, Nix shot both men, killing Ermitano and seriously injuring Hagan. Nix then returned to a nearby car where a friend was waiting for him, and ordered her to drive off. When a police vehicle attempted to stop the car, Nix ordered the driver not to pull over. The driver obeyed Nix, speeding and running a stop sign during the ensuing police chase.
2. Procedure.
Trial was by jury. Nix was found guilty of the first degree murder of Ermitano
( 187, subd. (a)), the attempted murder of Hagan ( 664187, subd. (a)), and evading an officer with willful disregard (Veh. Code, 2800.2, subd. (a)). The jury further found the murder and attempted murder were committed for the benefit of a criminal street gang
( 186.22, subd. (b)(1)(C)); that Nix personally and intentionally discharged a firearm, proximately causing Ermitanos death and great bodily injury to Hagan ( 12022.53, subd. (d)); and Nix drove with a willful and wanton disregard for the safety of persons and property when evading an officer. Nix admitted suffering a prior strike conviction. ( 667, subds. (b) (i), 1170.12, subds. (a) (d)). The trial court denied Nixs Romero motion[3]and sentenced him to a term of 144 years to life in prison. It ordered Nix to pay victim restitution, and imposed a restitution fine and a stayed parole revocation fine. Nix appeals.
DISCUSSION
1. Sentence.
At sentencing, the trial court imposed a sentence of 50 years to life for the attempted murder, a 25-years-to-life term for the section 12022.53, subdivision (d) firearm enhancement, and a ten-year term for the section 186.22, subdivision (b)(1)(C) gang enhancement.[4]Nix argues that the ten-year term for the gang enhancement was imposed in error. (People v. Lopez (2005) 34 Cal.4th 1002, 1004, 1011.) The People concede the point.
We agree. Penal Code section 186.22, subdivision (b) establishes alternative methods for punishing felons whose crimes were committed for the benefit of a criminal street gang. Section 186.22, subdivision (b)(1)(C) . . . imposes a 10-year enhancement when such a defendant commits a violent felony. Section 186.22(b)(1)(C) does not apply, however, where the violent felony is punishable by imprisonment in the state prison for life. (Pen. Code, 186.22, subd. (b)(5).) Instead, section 186.22, subdivision (b)(5) . . . applies and imposes a minimum term of 15 years before the defendant may be considered for parole. (People v. Lopez, supra, 34 Cal.4th at p. 1004.) A gang-related first degree murder is a violent felony punishable by a life term, and therefore is not subject to the ten-year enhancement. (Id. at p. 1004.) Instead, the 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5), applies. (Id. at pp. 1004, 1007.)
Accordingly, we strike the ten-year sentence and order the 15-year-minimum parole eligibility requirement imposed instead. As noted in Lopez, this will have no practical effect on Nixs first degree murder sentence, in that the statutorily required minimum parole eligibility term for first degree murderers is 25 years. (People v. Lopez, supra, 34 Cal.4th at p. 1009; 190, subds. (a), (e).)
2. Review of in camera Pitchess examination.
Before trial, Nix sought discovery of the personnel records of several Los Angeles County Sheriffs deputies and Los Angeles Police Department (L.A.P.D.) officers. The trial court found good cause for in camera review of Detective Louie Aguileras personnel records pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531, for material related to falsifying police reports and giving false testimony. On August 26, 2005, the trial court conducted an in camera review of Deputy Aguileras records and concluded no discoverable material existed.
The trial court also found good cause for a review of L.A.P.D. Officer Paredess records for material related to falsification of police reports. On January 4, 2006, the trial court conducted an in camera review of Officer Paredess records, and ordered disclosure made on two complaints.
Nix requests that we review the sealed record of the trial courts Pitchess reviews to determine whether the trial court abused its discretion by failing to order additional disclosure of information.
Trial courts are vested with broad discretion when ruling on motions to discover peace officer records (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Memro (1995) 11 Cal.4th 786, 832), and we review a trial courts ruling for abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228; People v. Hughes (2002) 27 Cal.4th 287, 330.) We have reviewed the sealed transcripts of the in camera hearings conducted on August 26, 2005, and January 4, 2006. Those transcripts constitute adequate records of the trial courts review of any documents provided to it, and reveal no abuse of discretion.
DISPOSITION
The ten-year section 186.22 enhancement is stricken. A 15-year minimum parole eligibility requirement is imposed instead. ( 186.22, subd. (b)(5).) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
CROSKEY, J.
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[1] All further undesignated statutory references are to the Penal Code.
[2]Pitchess v. Superior Court (1974) 11 Cal.3d 531.
[3]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
[4] The court imposed a consecutive sentence of 55 years to life on count 2 (attempted murder and related enhancements), and a four-year sentence on count 4 (evading an officer with willful disregard). These aspects of Nixs sentence are not challenged on appeal.
