P. v. Rodriguez

Filed 6/12/06 P. v. Rodriguez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Affirmed.

A jury convicted Karlos A. Rodriguez of various offenses and the trial court sentenced him to a total prison term of 15 years. He argues that the trial court erred in: (1) denying his motion to discover the personnel records of his arresting officer under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); (2) imposing an upper term on one count and consecutive sentences on two other counts in violation of his Sixth Amendment right to a jury trial; and (3) imposing a full three-year consecutive term as a sentence enhancement based upon a prior conviction. We find Rodriguez's contentions to be unavailing and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On December 26, 2004, Escondido police officers stopped Rodriguez for driving a stolen car. When Officer Christopher Leso attempted to arrest Rodriguez, Rodriguez ran away and pointed a loaded handgun at Officer Leso during the chase. After arresting Rodriguez, the officers searched him and the car, finding two pipes of the type used to smoke methamphetamine and two pouches, one containing a usable quantity of methamphetamine and another containing ammunition. Rodriguez was also under the influence of a stimulant at the time of his arrest.

An information charged Rodriguez with eleven counts including, as relevant to this appeal, resisting an executive officer (count 2), transportation of methamphetamine (count 4), and auto theft (count 6). Rodriguez was also on probation when he allegedly committed the instant crimes. Before trial, Rodriguez moved for discovery of Officer Leso's personnel records and the court conducted an in camera hearing, but apparently found no discoverable material. At trial, Rodriguez testified in his own defense and the jury convicted him of all, but one of the counts and found true all enhancement allegations submitted to it for decision.

Rodriguez waived a jury trial on his prior convictions and the trial court found the alleged prior convictions to be true and sentenced him to a total prison term of 15 years after he objected to the imposition of any consecutive or upper terms under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). As relevant to the appeal, the trial court selected count 2 as the base term and imposed the upper term of three years in state prison. The court also imposed one-third the midterm (one year) for counts 4 and 6 under Penal Code section 1170.1 and ordered that the terms run consecutive to count 2. The court also imposed a three-year enhancement on count 4 based on a prior conviction and formally revoked probation in his earlier case. Rodriguez appeals.

DISCUSSION

I. Peace Officer Personnel Records

Rodriguez moved for discovery under Pitchess, seeking information concerning Officer Leso's "customs, habits, and credibility" to support his defense that Officer Leso falsely accused him of pointing a gun to avoid arrest. The minutes of the hearing on the motion suggest that the trial court found good cause for disclosure and that it inspected the documents in camera, but found no discoverable material. (Evid. Code, §§ 1043, 1045.) Rodriguez asserts that the trial court erred and asks this court to review these materials.

We may independently examine the materials in camera (People v. Samayoa (1997) 15 Cal.4th 795, 827) and requested that copies of the personnel records and the reporter's transcript be filed under seal so that we could do so. We have independently examined the materials in camera and conclude that the trial court did not abuse its discretion in refusing to disclose the contents of Officer Leso's personnel files. (People v. Hughes (2002) 27 Cal.4th 287, 330.)

II. Imposition of Upper Term and Consecutive Sentences

We reject Rodriguez's contention that the imposition of the upper term on count 2 and consecutive terms on counts 4 and 6 violated his right to a jury trial under Blakely. As Rodriguez concedes, the California Supreme Court resolved this issue in People v. Black (2005) 35 Cal.4th 1238 (Black) and we are bound to follow that ruling, at least for the time being. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) (A petition for certiorari was filed in Black on September 28, 2005, and is pending and the United States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], cert. granted sub nom. Cunningham v. California, Feb. 21, 2006, No. 05-6551, ___ U.S. ___, on the issue of Blakely's applicability to California's determinate sentencing law.)

III. Sentence Enhancement

Count 4, for transportation of a controlled substance in violation of Health and Safety Code section 11379, included a sentence enhancement allegation that Rodriguez had previously been convicted of the same crime within the meaning of Health and Safety Code section 11370.2, subdivision (c). (All undesignated statutory references are to this code.) The trial court found the prior conviction allegation true and imposed a consecutive three-year term under section 11370.2, subdivision (c). Rodriguez contends this is an unlawful sentence because Penal Code section 1170.1, subdivision (a) required that the court impose only one-third of the three-year enhancement under section 11370.2, subdivision (c) because the enhancement attached to a particular count. To address this contention we must examine the terms of these statutes.

Section 11370.2, subdivision (c) imposes, "in addition to any other punishment authorized by law . . . full, separate, and consecutive three-year term[s]" where, as here, a defendant is convicted of violating section 11379 and has a prior felony conviction for the same offense. Penal Code section 1170.1, subdivision (a) governs the calculation and imposition of a determinate sentence when a defendant has been convicted of more than one felony offense (People v. Williams (2004) 34 Cal.4th 397, 402) and provides:

"Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Italics added.)

The first part of Penal Code section 1170.1, subdivision (a) explains that the aggregate term of imprisonment is comprised of the sum of three components: (1) the principal term; (2) the subordinate term; and (3) any additional term imposed for applicable enhancements for prior convictions, prior prison terms. The third component, enhancements for prior offenses, "do[es] not attach to particular counts but instead [is] added just once as the final step in computing the total sentence." (People v. Tassell (1984) 36 Cal.3d 77, 90 (Tassell), fn. omitted, overruled on another ground in People v. Ewoldt (1994) 7 Cal.4th 380, 386-387.)

The second part of Penal Code section 1170.1, subdivision (a) explains what the principal and subordinate terms consist of, and provides that the subordinate term "include[s] one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." This section "soften[s] the effect of enhancements that are attached to individual counts." (Tassell, supra, 36 Cal.3d at p. 91.) An enhancement is connected with a subordinate offense if it arises from the circumstances of the crime and what the defendant did when the current offense was committed. (People v. Coronado (1995) 12 Cal.4th 145, 156-157.)

Here, the trial court made count 2 the principal term and count 4 the consecutive subordinate term. The trial court imposed one-third the midterm on count 4, the subordinate term, as required by Penal Code section 1170.1, subdivision (a). The trial court also imposed a three-year term for the section 11370.2, subdivision (c) allegation connected with count 4. Rodriguez contends that the three-year enhancement is an unlawful sentence because the enhancement "attached" to a particular count and under Penal Code section 1170.1, subdivision (a), the trial court could impose only one-third of the three-year term. We disagree. Although the section 11370.2, subdivision (c) allegation was asserted in connection with count 4, it did not "attach" to count 4 because it had nothing to do with that particular count; rather, it pertained to a prior offense and related to Rodriguez's status as a repeat offender. (People v. Gokey (1998) 62 Cal.App.4th 932, 936 [section 11370.2 imposes an enhancement based on the status of the offender rather than the underlying offense].) As such, the trial court properly imposed a three-year term for the enhancement. (Tassell, supra, 36 Cal.3d at p. 90.)

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

McDONALD, Acting P. J.

O'ROURKE, J.

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