Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF129103A. Louis P. Etcheverry, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Kane, Acting P.J., Poochigian, J. and Detjen, J.
This is an appeal from a judgment entered after a jury found defendant guilty of possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) Defendant and appellant Willie Donte Brown has requested that we examine sealed police personnel records to determine whether the trial court ordered disclosure of all appropriate records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. Having made that examination, and having determined that the appropriate records were ordered to be disclosed, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
During the course of an investigation on August 22, 2009, officers noticed that defendant was clenching his buttocks. One of the officers pulled down defendant’s pants and underwear; he discovered between defendant’s buttocks 60 pieces of cocaine base wrapped in plastic. Defendant was arrested.
Prior to trial, defendant filed a motion for discovery of police personnel records, alleging that the officer who conducted the search had falsified the basis for the search and had used excessive force in conducting the search. The police department furnished the officer’s personnel records to the court, which examined them in camera. Subsequently, the court ordered disclosure to the defense of records concerning several citizen complaints against the officer. It ordered the remaining records sealed.
After jury trial, defendant was found guilty of one count of possession of cocaine base for sale. The jury was unable to reach a verdict on other counts and allegations. In a bifurcated trial the court, sitting without a jury, found true one strike allegation and one prior prison term allegation. At the sentencing hearing, the court imposed the upper term of five years on the possession count, doubled to 10 years pursuant to Penal Code section 667, subdivision (e), plus one year for the prior prison term pursuant to Penal Code section 667.5, subdivision (b). In addition, the court imposed a consecutive sentence on a prior conviction, for a total operative term of 12 years, four months.
Through clerical omission, the prior prison term enhancement was omitted from the abstract of judgment. Having notified the parties that we intended to do so (see Gov. Code, § 68081), we will direct the trial court to cause preparation and distribution of an amended abstract of judgment reflecting correction of this omission.
Defendant filed a timely notice of appeal.
DISCUSSION
Under Pitchess v. Superior Court, supra, 11 Cal.3d at pages 537-538, and Evidence Code sections 1043 and 1045, a defendant may file a motion for discovery of certain personnel records concerning police officers, when those records are material to defense of a pending criminal prosecution. Upon a proper showing of good cause by the defendant, the court is required to review the personnel records in camera and order disclosure of appropriate records. (See People v. Mooc (2001) 26 Cal.4th 1216, 1219-1220.) Here, the court conducted that review and ordered disclosure to the defense of records concerning four incidents. The court, as required, ordered the record of its in camera review and the records themselves sealed.
On this appeal, defendant requests this court conduct its own review of the in camera hearing and of the personnel records to determine whether the trial court abused its discretion in determining which records to release and which records to protect. (See People v. Hughes (2002) 27 Cal.4th 287, 330.) Respondent concurs that such review is appropriate in the present case.
We have reviewed the reporter’s transcript of the in camera hearing of December 9, 2009, and the records of the relevant police officer, which were submitted to the trial court under seal and not subsequently disclosed to defendant. Based upon such review, we conclude there is nothing in the officer’s sealed file, not previously disclosed to defendant, that is relevant to the matters defendant sought to discover. Further, based on our review of the sealed reporter’s transcript of the in camera hearing, the trial court properly discharged its duty with respect to defendant’s motion.
DISPOSITION
The trial court is directed to prepare and distribute an amended abstract of judgment that includes the prior prison term that was found true by the court and imposed pursuant to Penal Code section 667.5, subdivision (b). In all other respects, the judgment is affirmed.