Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. PA057415 Harvey Giss, Judge.
Lynette Gladd Moore, 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, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Thomas Christopher Acuna appeals from a judgment of conviction following a jury trial at which he was found guilty of violating Vehicle Code section 23152, subdivision (a) (driving under the influence of an alcoholic beverage) and Vehicle Code section 23152, subdivision (b) (driving with a .08 percent or more blood alcohol level). He contends there was insufficient evidence to support his convictions. He argues the trial court abused its discretion by denying his pretrial Marsden motion to dismiss counsel, and that he was deprived of a post-trial Marsden hearing to which he was entitled. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) He asserts that the trial court abused its discretion at sentencing when it denied his request to dismiss a prior strike in the interests of justice. He asks that we review the sealed Pitchess record to determine whether discoverable information was improperly withheld. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) Finally, he asks that we order the abstract of judgment and minute order to be corrected in order to reflect the sentence imposed orally by the trial court.
We conclude there is sufficient evidence to support the jury’s verdict. The trial court did not abuse its discretion by denying appellant’s pretrial Marsden motion. The hearing conducted by the trial court in response to appellant’s post-trial request to dismiss counsel fulfilled the requirement of a Marsden hearing. It was not an abuse of discretion for the trial court to deny appellant’s request to dismiss his prior strike. On review of the sealed Pitchess record, we find that the trial court did not improperly withhold any discoverable information. We agree with appellant that the abstract of judgment and minute order do not accurately reflect the judgment pronounced by the trial court, and we order that they be corrected. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL SUMMARY
On October 1, 2006, police arrested appellant at the scene of an automobile collision. After being taken to the police station, appellant was given field sobriety tests and a breathalyzer test. His performance on the field sobriety tests led the investigating officer to conclude appellant was intoxicated. The first breathalyzer test revealed he had a blood alcohol content of 0.16 percent. Police attempted to confirm this reading with a second breathalyzer test, but appellant did not cooperate and they were unable to get a second reading.
We discuss the circumstances of the collision and appellant’s arrest in greater detail in connection with his sufficiency of the evidence claim.
Appellant was charged in count one with a violation of Vehicle Code section 23152, subdivision (a) and in count two with a violation of Vehicle Code section 23152, subdivision (b). One prior strike conviction and one prior prison term were alleged. Appellant pled not guilty. A jury found him guilty on both counts charged. The court found the prior strike conviction and prior prison term allegations to be true. Appellant timely appeals from the judgment of conviction.
DISCUSSION
I
Appellant contends there is insufficient evidence to support his conviction for driving under the influence of an alcoholic beverage and driving with a blood alcohol level of 0.08 percent or more. Appellant does not dispute that he was under the influence of alcohol or that his blood alcohol level was at least 0.08 percent at the time he was arrested. His sufficiency of the evidence claim is limited to his contention that there was not sufficient evidence to support a finding that he was driving.
“It is the prosecution’s burden in a criminal case to prove every element of a crime beyond a reasonable doubt. [Citation.] To determine whether the prosecution has introduced sufficient evidenceto meet this burden, courts apply the ‘substantial evidence’ test. Under this standard, the court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Cuevas (1995) 12 Cal.4th 252, 260.)
Much of the evidence pertaining to the identity of the driver came from the testimony of a prosecution witness, Sergeant Joseph Kalyn. At approximately 1:00 a.m. on October 1, 2006, Kalyn was driving westbound on Van Nuys Boulevard in Pacoima, in a marked police vehicle with his partner, Lieutenant Thomas Zack. While stopped at a traffic light at Laurel Canyon Boulevard, Kalyn saw a gray Chevrolet Astrovan drive eastbound on Van Nuys Boulevard, then make a sharp right turn onto Laurel Canyon. The van appeared to lose traction on the turn. Kalyn estimated the van was traveling at about 65 miles per hour when it made the turn; the speed limit on that part of Van Nuys Boulevard was 35 miles per hour. Kalyn could not see the driver of the van. Upon getting a green light, Kalyn turned onto Laurel Canyon, where he could see the van turning left onto Carl Street. As Kalyn turned onto Carl Street, he saw the van’s taillights about a block away. Kalyn then saw a puff of smoke about a block down Carl Street, which he believed to be from a traffic collision. About 10 seconds elapsed from when Kalyn saw the puff of smoke to when he arrived at the site of the collision.
Upon arriving, Kalyn saw the van had collided with a white Ford Taurus in the intersection of Carl Street and Amboy Avenue. Kalyn and Zack approached the Astrovan, Kalyn toward the driver’s side and Zack toward the passenger’s side. As Kalyn approached, appellant opened the driver’s side door and exited the vehicle. Kalyn did not see appellant seated in the van. Appellant appeared dazed, and Kalyn noticed he had red eyes, the odor of alcohol on his breath, and slurred speech. The first thing appellant said to Kalyn was that he had not been driving. Kalyn did not recall appellant telling him who had been driving. Kalyn testified that a woman named Virginia Guerrero exited from the van’s passenger side front door and told him appellant had been driving. Kalyn examined the interior of the van and found no other occupants.
The defense called Guerrero as a witness. She testified that a third occupant of the van—her then-boyfriend, Carlos Esquivel—had been driving but ran away after the collision. According to Guerrero’s testimony, she had been seated in the passenger’s seat, Esquivel had been seated in the driver’s seat and appellant had been sitting on a basket of clothes in the space between the two front seats. She testified that two to four minutes passed before the police arrived after the collision, by which time all of the van’s three occupants had exited through the driver’s side door because the passenger’s side door was jammed shut. She denied having told police at the scene that either appellant or Esquivel was driving. She explained that she did not volunteer information about who had been driving because she was afraid of getting in trouble since she owned the van. She did not have a driver’s license or automobile insurance.
Both the prosecution and the defense attacked Guerrero’s credibility. The jury heard of multiple prior inconsistent statements from Guerrero regarding who drove the van. Aspects of her testimony were highlighted as improbable, such as her claim that Esquivel was her boyfriend of four months at the time of the collision, yet she had not known his address or phone number and never saw or spoke to him again after that night. Additionally, Guerrero admitted she had ignored up to 10 subpoenas and appeared only after the court issued a body attachment.
The prosecution argued Guerrero was being dishonest to cover for appellant. The defense argued Guerrero was actually covering for herself, on the theory that she had been the driver of the van at the time of the collision. Appellant now contends there is not substantial evidence to support his conviction because no reasonable juror could have been convinced beyond a reasonable doubt that appellant, and not Guerrero, was the driver of the van.
The evidence that appellant was driving is largely circumstantial. Only Guerrero testified to having actually seen the driver, whom she identified as someone other than appellant. Kalyn testified that Guerrero told him shortly after the collision that appellant was driving, but he did not see appellant driving, or even sitting in the driver’s seat. “‘“[I]t is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence.”’” (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) Nonetheless, “‘“‘“[i]f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citation.]” [Citation.] ‘“‘“Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’” [Citations.]’” (Ibid.) Given that Kalyn saw appellant, and no one else, exit the driver’s side of the van moments after the collision, we cannot say that no rational juror could reach the conclusion that appellant was driving. “[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (People v. Maury (2003) 30 Cal.4th 342, 403.) The jury had the opportunity to consider whether Guerrero or Esquivel, rather than appellant, was actually the driver of the van; a rational juror could disbelieve either or both of those theories.
Appellant relies on People v. Nelson (1983) 140 Cal.App.3d Supp. 1and People v. Briggs (1967) 255 Cal.App.2d 497, for their holdings that evidence merely raising a suspicion as to the identity of the perpetrator of a crime was insufficient to support conviction. Both cases are inapposite. Nelson, which concerned a case in a different procedural posture, has been described as “questionable precedent” for the very analysis of the facts upon which appellant relies. (See, e.g., People v. Scott (1999) 76 Cal.App.4th 411, 417.) Briggs involved a set of facts in which the defendant was so loosely tied to the charged burglary that the prosecutor admitted to the court, “‘[A]ll I have is a strong suspicion.’” (People v. Briggs, supra, 255 Cal.App.2d at p. 499, italics omitted.)
Unlike the cases cited by appellant, the jury’s verdict in the present case was not based on mere suspicion. For the reasons explained above, we conclude the verdict is supported by substantial evidence.
II
Appellant raises two issues on appeal with regard to his Marsden motions to discharge his attorney. “‘The rule [set forth in People v. Marsden, supra, 2 Cal.3d 118] is well settled. “‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.’”’” (People v. Abilez (2007) 41 Cal.4th 472, 487-488.) We find the trial court complied with the requirements of Marsden and its progeny in both instances.
A
Appellant first contends the trial court abused its discretion by denying his fourth Marsden motion to dismiss counsel. Though the appeal is based only on the fourth motion, we will describe briefly all four pretrial Marsden hearings, since each involved similar issues.
In the first hearing, held in December 2006, appellant claimed his attorney, public defender Christopher Sharpe, wanted to be excused from the case. Sharpe flatly denied this allegation. Appellant also expressed concern that his attorney had not sent an investigator to the scene of the collision and that he had not filed motions. When asked what motions he thought should have been filed, appellant answered, “A Pitchess motion,” then added, “Whatever motions that are necessary.” The court stated that there was no sense in an attorney filing motions that did not apply, expressed skepticism that much investigation was needed for this type of case and denied the motion.
In the second hearing, held in January 2007, appellant raised essentially the same concerns. The court again responded that the motions and investigation appellant wanted were not relevant to the facts of the case. Appellant stated that his attorney would not answer his questions and that there had been a “major breakdown” in their relationship. Sharpe disagreed that such a breakdown had occurred. The court denied the motion.
The concerns raised in the third hearing, held in March 2007, were similar to those raised in the first two hearings. Appellant alleged that Sharpe had not given him copies of reports as requested. Sharpe disagreed, saying he had given appellant copies of all of his reports and motions. Appellant stated that his attorney was not believable, he did not trust his attorney and he refused to allow Sharpe to represent him. The court told appellant he could represent himself if he refused to be represented by his current attorney. Appellant’s motion to have his attorney removed was again denied.
The fourth and final Marsden hearing before trial was held in April 2007. Appellant reiterated his belief that he was not getting copies of all of the records to which he was entitled. He also reiterated his belief that Sharpe should have sent investigators to the scene of the collision to find witnesses. In the middle of the hearing, Sharpe and the judge turned to a discussion about whether a body attachment was needed for Guerrero. Sharpe revealed that he intended to argue that Guerrero was the driver. Appellant stated this was the first he had heard of that strategy. At no point did appellant say he was opposed to the strategy of arguing Guerrero was the driver. He merely expressed surprise and said that he thought a third party named Esquivel was the driver. At the end of the hearing, Sharpe was given an opportunity to respond to appellant’s contentions. He explained that he had given copies of all reports to appellant and that he had sent an investigator to try to locate witnesses at the scene of the collision, but the investigator had not located any witnesses. No further mention was made of the defense strategy. Again, the court denied appellant’s Marsden motion.
“‘“‘A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’” [Citation.] The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would “substantially impair” the defendant’s right to effective assistance of counsel.’” (People v. Abilez, supra, 41 Cal.4th at p. 488.)
Appellant contends he was entitled to replacement counsel because he was embroiled in an irreconcilable conflict with his attorney. According to appellant, the irreconcilable conflict arose over how to address the question of who was driving, a central issue in this case. Appellant argues that he and his attorney had a profound disagreement about this matter and consequently suffered a complete breakdown in communication.
Appellant’s assertion that a total breakdown of communication with counsel was brought on by the dispute over who was driving is not borne out by the record. Appellant claimed communication was broken down from the time of his second Marsden motion. At that time, he was not even aware that Sharpe intended to argue that Guerrero was the driver. By his own admission, appellant learned of the defense strategy at the final Marsden hearing, held four months after the first. Of the many concerns raised by appellant in his four Marsden hearings, none concerned the theory of the case proposed by his attorney. To the contrary, the transcript reveals that appellant’s dissatisfaction with his attorney was based on his sense that he was being kept inadequately apprised of the progress of his case and his sense that his attorney was not investigating with the vigor he thought was necessary.
We do not suggest that if appellant’s Marsden motion had been rooted in a disagreement with his attorney over the substance of his defense, it necessarily would have been an abuse of discretion to deny it. “Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’ ‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’” (People v. Welch (1999) 20 Cal.4th 701, 728 -729, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89.)
It is apparent from the record that appellant did not think much of his attorney, but by itself this does not justify removal of counsel. “A defendant may not effectively veto an appointment of counsel by claiming a lack of trust in, or inability to get along with, the appointed attorney. [Citation.] Moreover, the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness. . . . ‘[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.’” (People v. Smith (2003) 30 Cal.4th 581, 606.)
As required by Marsden, the trial court gave appellant an opportunity to explain his grievances, then gave his attorney a chance to respond. “Counsel had adequate explanations for all of defendant’s complaints, and ‘“[t]o the extent there was a credibility question between defendant and counsel at the hearing, the court was ‘entitled to accept counsel’s explanation.’”’” (People v. Abilez, supra, 41 Cal.4th at p. 488.)
We find no abuse of discretion in the trial court’s denial of appellant’s fourth Marsden motion.
B
Appellant next contends the trial court erred by not holding a Marsden hearing when he made a motion, post-trial, to dismiss counsel. “[T]he trial court should appoint substitute counsel when a proper showing has been made at any stage. A defendant is entitled to competent representation at all times, including presentation of a new trial motion.” (People v. Smith (1993) 6 Cal.4th 684, 695.)
In June 2007, the trial court addressed a motion appellant personally wrote and submitted. The written motion was titled, “Motion to Dismiss Public Defender and Proceed in Propria (Pro Se).” It documented the various Marsden motions appellant had filed before trial, as well as complaints he had filed against Sharpe with the public defender’s office, the county bar association, the state bar association, and the American Civil Liberties Union. Substantively, the allegations raised by the motion were very similar to those considered in the pretrial Marsden hearings. Appellant contended that his attorney had failed to adequately investigate the scene of the collision or track down witnesses to the collision. He stated that Sharpe had represented that there was not a complete breakdown in communication in order to deceive the court and him. He noted that he had a constitutional right to “self-representation without . . . a lawyer.” In the “prayer for relief” at the end of the motion, appellant did not state specifically what he was asking the court to do. Rather, he requested only that the court “find in favor of granting this motion.”
When the court asked appellant whether he wanted to represent himself, appellant initially answered, “yes.” The court explained that appellant’s attorney had already filed a motion for new trial on which the court was prepared to hear argument. The court stated that it was prepared to grant appellant’s motion to represent himself, but appellant would have to be ready to argue the new trial motion the next day. Appellant expressed concern that he could not prepare to represent himself in 24 hours. Appellant then seemed to abandon his request to represent himself, and this issue is not raised on appeal.
After appellant contended that his attorney had not provided adequate assistance throughout the case, the court said, “[A]re you complaining that you weren’t adequately represented in trial? I’m trying to get you to pinpoint rather than some generic complaints that you don’t like your lawyer. Pinpoint what it is that was deficient, if anything.” In response, appellant stated that his attorney had not conducted an investigation of the van or of potential witnesses at the scene of the collision.
At this point, there appears to have been some confusion about whether a Marsden hearing was taking place. The prosecutor asked, “Is this a Marsden motion?” The court replied, “I don’t know what it is to tell you the truth. It’s a hybrid. It doesn’t fit into any particular category.” The court then asked Sharpe if he would like to respond regarding the investigation he conducted. Sharpe stated that he had tried to find witnesses, but had been unable to locate any, and that the van had been destroyed before he was able to access it. The court asked appellant if he wanted to raise any other complaints. Appellant stated he was not sure the proper motions were being filed on his behalf, though he was unable to identify which motions he had in mind.
The parties disagree over whether appellant’s motion to dismiss counsel and represent himself entitled him to a Marsden hearing. This is a moot point, however, since the court conducted the same inquiry appellant would have been entitled to on a Marsden motion. “‘[A] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant’s allegations regarding the defects in counsel’s representation and decides whether the allegations have sufficient substance to warrant counsel’s replacement.’” (People v. Valdez (2004) 32 Cal.4th 73, 96; see also People v. Madrid (1985) 168 Cal.App.3d 14, 18 [“no single, inflexible procedure exists for conducting a Marsden inquiry”].) This is precisely the type of hearing the trial court conducted. The court gave appellant an opportunity to explain his grievances. Appellant’s initial attempt to explain was vague, so the court asked him to describe specific ways in which his attorney had been ineffective. The court then gave Sharpe an opportunity to respond to appellant’s complaints.
The court’s uncertainty about the proper label for the proceeding notwithstanding, the only way in which this procedure differed from a Marsden hearing was the presence of the prosecutor. There is no fixed rule requiring that the prosecutor be excluded from a Marsden hearing, at least when his or her exclusion is not requested by the defendant or counsel. (People v. Madrid, supra, 168 Cal.App.3d at p. 18.) “Rather, the procedural parameters of the Marsden inquiry should be shaped by the particular facts and interests involved. The trial court is in the best position to assess whether the defendant’s motion . . . is frivolous or for purposes of delay and can be most expeditiously handled in open court so the court can efficiently manage its calendar.” (Id. at p. 19.) It is undisputed that no request to exclude the prosecutor was made in this case, even after the court indicated that the motion could be a Marsden “hybrid.” Neither do the interests involved in this hearing militate in favor of finding that it was error to allow the prosecutor to remain. The trial had already been held, so appellant and his attorney were not at risk of inadvertently disclosing the defense trial strategy. Appellant does not contend that the prosecutor’s presence inhibited him from stating his reasons for being dissatisfied with his attorney’s representation.
Accordingly, we disagree with appellant’s argument that he was deprived of a Marsden hearing to which he was entitled. Appellant does not contend that, assuming a Marsden hearing was held, it was an abuse of discretion for the trial court to refuse to dismiss counsel.
III
Appellant contends that the trial court abused its discretion when it denied his motion to dismiss his prior strike in the interest of justice. Penal Code section 1385 gives a trial court discretion to dismiss prior felony conviction allegations “‘“in furtherance of justice”’” in cases brought under the “Three Strikes” law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) In challenging this exercise of discretion, “‘“[t]he burden is on the party attacking the sentence.”’” (People v. Carmony, supra, 33 Cal.4th at p. 376.)
“A defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under [Penal Code] section 1385.” (People v. Carmony (2004) 33 Cal.4th 367, 375; Pen. Code, § 1385, subd. (a) [“The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”].) Nonetheless, a defendant has the right to “‘invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading.’” (People v. Carmony, supra, 33 Cal.4th at p. 375; see also 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 414, p. 585.) Trial courts and parties commonly refer to such a request as a motion, despite the inaccuracy of this label. (People v. Lee (2008) 161 Cal.App.4th 124, 126, fn. 2.)
We review the trial court’s decision not to dismiss a prior strike for abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 371.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) Recognizing that “in furtherance of justice” may prove an amorphous concept, the Supreme Court provided the following standard to guide the lower courts’ exercise of discretion: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
The conviction on appeal is appellant’s second strike. The first strike was appellant’s 1989 conviction for robbery. When denying appellant’s request that the prior strike be dismissed, the trial court explained, “The defendant has had a continuing course of criminal conduct right up to this case. He was on probation on another deuce . . . at the time of the offense.” The “continuing course of criminal conduct” referred to the court’s findings that, in addition to the 1989 robbery conviction, appellant had three prior convictions for driving under the influence in 1998, 2000 and 2004; a conviction for possession of a firearm by a felon in 2000; and a conviction for second degree burglary in 1988. Appellant does not challenge the court’s findings of fact regarding his prior convictions.
Appellant asserts that he does not fall within the spirit of the Three Strikes regime because his strike was a single, aberrant instance of violent behavior that is remote in time. To the contrary, the trial court appropriately based its decision on the fact that appellant has been engaged in criminal conduct off-and-on for the past 20 years, including while he was on probation. (See People v. Philpot (2004) 122 Cal.App.4th 893, 906 [reasoning that “the court could not overlook the fact defendant consistently committed criminal offenses for the past 20 years. His conduct as a whole was a strong indication of unwillingness or inability to comply with the law.”].) Appellant further contends that the trial court erred by not considering mitigating factors, such as the nonviolent nature of his recent convictions. Though the trial court did not say anything about mitigating evidence, we presume when the record is silent that the trial court followed the law. (People v. Carmony, supra, 33 Cal.4th at p. 378.) Appellant has not identified anything other than the court’s silence to indicate that the court did not consider all factors required by law.
Our Supreme Court has made it clear that only in exceptional cases will the trial court be found to have abused its discretion by failing to strike a prior felony conviction. (People v. Carmony, supra, 33 Cal.4th at p. 378.) These circumstances might exist if the trial court was unaware it had discretion to dismiss, or if the court considered impermissible factors in reaching its decision. (Ibid.) This is not such a case. The trial court did not abuse its discretion in denying appellant’s request to dismiss his prior strike.
IV
Before trial, appellant filed a Pitchess motion seeking discovery of complaints against Sergeant Kalyn relating to “acts of entrapping persons, misrepresenting or falsifying facts in an arrest and/or investigation report, fabricating evidence and/or planting evidence, false testimony [and] acts of dishonesty.” In response to this request, information about two complaints was turned over to the defense. Appellant asks this court to review the sealed records relating to his Pitchess motion in order to determine whether any additional discoverable information was improperly withheld from appellant. We review the trial court’s decision regarding the discoverability of material in police personnel files under the abuse of discretion standard. (People v. Cruz (2008) 44 Cal.4th 636, 670.)
Though the documents screened by the trial court were not made part of the record on appeal, the reporter’s transcript reveals sufficient information for our review. The trial court held an in camera hearing regarding Kalyn’s personnel file on February 14, 2007. The custodian of records stated under oath that she brought to the hearing all of the complaints filed against Kalyn within the relevant five year period. The court asked the custodian to read into the record a brief description of each complaint before handing over the documents. An attorney for the Los Angeles Police Department was present at the hearing and conceded that two of the complaints were responsive to appellant’s request and should be turned over to the defense. The court stated on the record that each of the remaining three complaints was irrelevant. This transcript satisfies the requirement that the trial court create a record for appellate review. (See People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We are particularly satisfied that the trial court made a sufficient record in this case since the court, rather than the custodian of records, determined which documents in the personnel file contained relevant information. (Cf. People v. Wycoff (2008) 164 Cal.App.4th 410, 415 [insufficient record when custodian did not produce entire personnel file and no record was made of personnel documents not produced]; People v. Guevara (2007) 148 Cal.App.4th 62, 68 [same].)
Having reviewed the sealed reporter’s transcript of the in camera proceeding, we find the trial court did not abuse its discretion in withholding three of the complaints from appellant.
V
Appellant contends that the abstract of judgment and minute order must be corrected to reflect the trial court’s intention to stay the sentence in count one, pursuant to Penal Code section 654. The Attorney General agrees.
“An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The trial court announced it was sentencing appellant on count two as the principal term. The sentence orally pronounced was the midterm of two years, doubled due to appellant’s strike, plus a one year enhancement pursuant to Penal Code section 667.5, for a total of five years. The court then stated, “On count one the sentence is identical, but it will be stayed under [section] 654 of the Penal Code.” The abstract of judgment differs from this pronouncement because it reflects the sentence for count one as running concurrently with the sentence for count two. “Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.” (People v. Mitchell, supra, 26 Cal.4th at p. 185.)
The minute order regarding sentencing also fails to reflect the stay on the sentence for count one. “‘The reason for requiring a minute entry of the judgment in a criminal case is to furnish a concise record showing the crime of which the defendant has been convicted and the punishment imposed.’” (People v. Zackery (2007) 147 Cal.App.4th 380, 386.) When the clerk’s minutes do not reflect the trial court’s oral pronouncement, the appellate court has authority to correct such errors. (Ibid.)
The abstract of judgment and the June 20, 2007 minute order shall be corrected to state that the sentence on count one is stayed.
DISPOSITION
The sentence on count 1 is ordered stayed. The matter is remanded to the trial court to correct the abstract of judgment and minute order so they are consistent with the judgment and to forward the modified abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.