Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA105290. Paul A. Bacigalupo, Judge.
Benjamin Owens, 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, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Charles Givan appeals from the judgment entered after a jury convicted him of one count of attempted pandering by procurement. On appeal, Given contends the evidence is insufficient to support his conviction; the trial court committed instructional error; his trial counsel was ineffective; this Court should independently review the trial court’s examination of police officer personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess);and he is entitled to additional days of presentence custody credit. We modify the judgment to correct the number of days of credit to which Givan is entitled and, as modified, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Givan was charged by information with one count of pandering by procurement under Penal Code section 266i, subdivision (a)(1). The information specially alleged that Givan had two prior juvenile adjudications for robbery (§ 211) that qualified as “strikes” under the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12). The information also specially alleged that Givan had served seven prior prison terms within the meaning of section 667.5, subdivision (b).
Statutory references are to the Penal Code unless otherwise noted.
2. The Evidence Presented at Trial
a. The People’s Evidence
On February 22, 2009, about 3:40 p.m., Los Angeles Police Department Officer Josephine Sanchez, a vice unit officer specializing in undercover work on alcohol and beverage control, loitering and prostitution, was working undercover with a vice team at S&S Liquor Store in Compton. Officer Sanchez was attempting to buy a single cigarette, which is often associated with drug activity.
Givan approached Officer Sanchez and asked her name and why she was in the store. Officer Sanchez replied that her name was Natasha and that she was trying to buy a cigarette. Givan offered to buy Officer Sanchez a pack of cigarettes and asked where she was from and where she was staying. Officer Sanchez responded that she was from Compton and was staying with girlfriends.
Givan then motioned for Officer Sanchez to follow him to the back of the liquor store, which she did. Givan told her, “‘You know who I am? I am the motherfucking dog up in here. I just got out two days ago.’” He also stated that he “runs dope in th[e] area.” When Officer Sanchez asked Givan what he wanted from her, he said that he wanted to “scoop [her] up before these other motherfuckers do.” Givan asked Officer Sanchez what she did for a living, and she responded that she “‘sometimes work[s] ho’ing, ’” which she said is vernacular for working as a street prostitute. Givan said that he wanted Officer Sanchez to “roll with him” and that he would “take care of [her], [and]... give [her] anything [she] want[ed].” Givan also stated that “he likes taking care of innocent girls.”
When Officer Sanchez hesitated, Givan became aggressive, grabbing at her necklace, and asked her if she was a police officer. Officer Sanchez showed Givan her necklace, letting him know that it was not a badge, and said she was not a police officer. Givan then asked Officer Sanchez to accompany him to his car because she “should roll with him” and she “need[s] somebody like him.” Givan said, if Officer Sanchez were with him, she would “have nothing to worry about, that he[] [would] take care of her.” Officer Sanchez said she would go with Givan to his car. Then she made a telephone call to one of her vice team members. When Givan walked into the parking lot of the liquor store, another officer arrested him.
Officer Sanchez believed, based on her training and experience, that Givan was trying to recruit her to work for him as a prostitute “in exchange for some sort of goods.” According to Officer Sanchez, Givan indicated to her that he was successful on the streets and would protect her. Officer Sanchez conceded that Givan did not talk about money or sex with her, but stated that did not always occur when a man is recruiting women for his business.
Officer Manual Sierra, Officer Sanchez’s colleague on the vice team, placed Givan in a patrol car, where Givan volunteered that “women want him to be their pimp.” Officer Sierra then read Givan his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1662, 16 L.Ed.2d 694], and Givan said he did not want to talk further. Later, when Givan was being transported from the police station to jail, he told the transporting officer that he had more than 50 “girls” working for him.
b. The Defense’s Evidence
Givan testified on his own behalf, stating that he went to the liquor store on February 22 after hearing that a lot of police officers were in the neighborhood. Because a police presence usually means that “someone either got shot, killed, or hurt, ” Givan wanted to make sure none of his people was involved. Givan admitted that once he was in the liquor store he approached Officer Sanchez and offered to buy her a pack of cigarettes. Officer Sanchez told him that she was “‘looking for something else to smoke, ’” which caused him to suspect that she was a police officer. When Officer Sanchez denied being an officer, Givan examined her hands for drug burn marks. Because he saw no marks, Givan became more suspicious that she was a police officer and asked her to prove she was not by kissing him on the cheek. Officer Sanchez then kissed him on the cheek, and Givan asked to see her badge and reached for her necklace. Officer Sanchez told Givan not to touch her, but showed him her necklace. After Givan bought a bag of potato chips and a pack of cigarettes for Officer Sanchez, he left the store to avoid involvement with police activity. Givan then was arrested outside the liquor store. Although admitting there were prostitutes in the neighborhood, particularly women who trade sex for drugs, Givan denied that he had talked to Officer Sanchez about sex or prostitution and that he had ever been involved with prostitution. To support his innocence, he pointed out that the police had recovered only $51.40 from him and nothing from his car or home.
3. Givan’s Conviction and Sentence
The trial court instructed the jury on both pandering by procurement, as charged in the information, and the lesser-included offense of attempted pandering by procurement. After deliberating, the jury found Givan guilty of attempted pandering by procurement. Givan then admitted the truth of the special allegations that he had two prior juvenile adjudications for robbery and had served seven prior prison terms qualifying under section 667.5, subdivision (b).
The trial court sentenced Givan to three years in state prison. The court selected the low term of three years for pandering by procurement and, because the jury had convicted Givan of the lesser-included offense of attempted pandering, reduced the term by half to eighteen months. (§§ 266i, subd. (a), 664, subd. (a).) The court then doubled the eighteen-month term under the Three Strikes Law based on one of Givan’s prior juvenile adjudications for robbery. (§§ 667, subd. (d)(3), 1170.12, subds. (b)(3) & (c)(1).) The court dismissed the second strike pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court imposed one-year terms for three of the prison priors to run concurrently with Givan’s three-year sentence and imposed but stayed punishment on the one-year terms for the four remaining prison priors. The court awarded Givan 198 days of presentence custody credit.
DISCUSSION
1. Sufficient Evidence Supports Givan’s Conviction for Attempted Pandering by Procurement
In reviewing a challenge to the sufficiency of the evidence, we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432; see also People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d 577, 631.)
Givan contends the evidence fails to support his conviction for attempted pandering by procurement because at most his actions were merely preparatory and thus insufficient to qualify as an attempt. We disagree.
Section 266i, subdivision (a)(1), under which the jury convicted Givan for attempted pandering by procurement provides, that any person who “[p]rocures another for the purpose of prostitution, ” is guilty of pandering. “Procurement” encompasses a broad range of conduct, and no requirement exists that the victim ever perform acts of prostitution. (People v. DeLoach (1989) 207 Cal.App.3d 323, 333.) “‘Attempted pandering is proved by evidence of the acts of the accused which have failed to accomplish the actor’s purpose by reason of its frustration by extraneous circumstances rather than by virtue of a change of heart on the part of the one who made the attempt.’” (People v. Charles (1963) 218 Cal.App.2d 812, 819.)
Here, the evidence was sufficient for the jury to convict Givan of attempted pandering by procurement. Givan approached Officer Sanchez in the liquor store and offered to buy her a pack of cigarettes. He initiated conversation with her to find out more about her, asked her to come to the back of the store with him, bragged about his role in the neighborhood and told her that he wanted to “scoop [her] up” before anyone else could do so. Givan asked Officer Sanchez what she did for a living, and, when she said she “‘sometimes work[s] ho’ing, ’” he said that he wanted her to “roll with him” and promised to take care of her and give her anything she wanted, saying he liked to take care of “innocent girls.” When Officer Sanchez hesitated, Givan became aggressive and tried to make sure she was not a police officer. He again promised to take care of her, saying that she needs someone like him and would have nothing to worry about if she were with him. And Givan later told the police that “women want him to be their pimp” and that he had more than 50 “girls” working for him. This evidence sufficiently demonstrates that Givan attempted to procure Officer Sanchez to work for him as a prostitute. His attempt was frustrated only because Officer Sanchez never consented to work for him. (People v. Charles, supra, 218 Cal.App.2d at p. 819 [refusal of the person solicited to accept the proposal constitutes “an extraneous circumstance which frustrates her procurement for such purpose”].)
Contrary to Givan’s contention, the crime of pandering by procurement does not require that the defendant and the subject of the procurement discuss money, sex or other details regarding their arrangement. Indeed, Officer Sanchez testified that such conversation does not necessarily occur when a man is trying to recruit a woman to work for him as a prostitute. The crime also does not require that the defendant actually arrange for the would-be prostitute to perform a sexual act. (People v. Schultz (1965) 238 Cal.App.2d 804, 812 [“‘procure’” in the context of pandering means “assisting, inducing, persuading or encouraging”].) To constitute the crime of attempted pandering by procurement, it is necessary only that a defendant take a direct, unequivocal act toward recruiting the would-be prostitute. The frustration of the attempt by the subject’s failure to agree is what makes the crime an attempt, rather than an actual procurement, as in this case. (People v. Charles, supra, 218 Cal.App.2d at p. 819 [attempted pandering requires intent and direct, unequivocal act toward that end].) Here, Givan made a direct, unequivocal offer to Officer Sanchez for her to work for him as a prostitute. Because she did not agree to the offer, the crime is an attempt rather than actual pandering. No more is necessary to support Givan’s conviction for attempted pandering by procurement.
Givan also argues that the evidence does not support his conviction because Officer Sanchez told him she already worked as a prostitute and thus he could not be convicted under section 266i, subdivision (a)(2), which, according to Givan, requires that a defendant persuades someone to become a prostitute. The applicability of section 266i, subdivision (a)(2), to a situation where the person recruited already is a prostitute is before the Supreme Court. (People v. Cason (2009) 179 Cal.App.4th 1419, review granted March 18, 2010, S179344; People v. Zambia (2009) 173 Cal.App.4th 1221, review granted August 19, 2009, S173490.) The issue, however, is immaterial here because Givan was charged and convicted under section 266i, subdivision (a)(1), not section 266i, subdivision (a)(2), and the former section does not contain the “become” language on which Givan relies to challenge his conviction. As a result, the requirements of section 266i, subdivision (a)(2), are not relevant to the propriety of Givan’s conviction. In other words, whether Givan believed Officer Sanchez already was a prostitute has no bearing on the sufficiency of the evidence to support his conviction under section 266i, subdivision (a)(1). (People v. Cimar (1932) 127 Cal.App. 9, 12 [“circumstances constituting pandering ordinarily depend upon the language of the statute under which an accused person is charged”].)
2. The Trial Court Did Not Err By Instructing the Jury on the Crime of Pandering by Procurement
The trial court instructed the jury on pandering under CALCRIM No. 1151: “The defendant is charged in Count 1 with pandering in violation of Penal Code section 266i. To prove that the defendant is guilty of pandering, the People must prove that: 1. The defendant persuaded/procured Josephine Sanchez to be a prostitute[.] It is not required that the person procured actually engage in prostitution.” Although the instruction followed CALCRIM No. 1151, Givan contends that including the word “persuaded” in the instruction is legally incorrect and allowed the jury to convict him on an unauthorized theory of guilt.
Givan’s contention lacks merit. The use notes to CALCRIM No. 1151 explain that the word “‘persuade’” was included in the instruction as an option “because the statutory language, ‘procure, ’ may be difficult for jurors to understand.” Indeed, while procuring is the illegal conduct under the statute, persuasion is the means by which it may be accomplished. The word “procure” in the pandering statute “necessarily implies the use of persuasion, solicitation, encouragement and assistance in achieving the unlawful purpose[.]... It is the offense of pandering that is condemned by the statute rather than the particular means by which the crime is committed.” (People v. Montgomery (1941) 47 Cal.App.2d 1, 12, disapproved on other grounds in People v. Dillon (1983) 34 Cal.3d 441, 454, fn. 2 and Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301, fn. 11.) We need not decide if in some hypothetical case including the word “persuaded” in the instruction might be erroneous because here the evidence is strong that Givan solicited the officer to work for him as a prostitute-without question an act that if successful is pandering. Thus, the jury necessarily understood that “persuaded” here was the means of procuring, and the use of the word “persuaded” in the instruction did not change the elements of the crime or present the jury with an alternative theory of guilt. The trial court, therefore, did not err in instructing the jury on pandering.
3. The Trial Court Did Not Commit Reversible Error By Failing To Give an Instruction on Expert Witness Testimony
Givan contends that Officer Sanchez testified as an expert when she explained, based on her training and experience, that she believed Givan had tried to recruit her as a prostitute and that, as a result, the trial court committed reversible error by failing sua sponte to instruct the jury on expert witness testimony under CALCRIM No. 332.
According to section 1127b, “When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable.”
CALCRIM No. 332, in turn, instructs the jury how to evaluate expert testimony and provides in relevant part: A witness was “allowed to testify as [an] expert[] and to give [an] opinion[]. You must consider the opinion[], but you are not required to accept [it] as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
Assuming that Officer Sanchez provided expert testimony and that the trial court thus sua sponte should have instructed under CALCRIM No. 332, Givan cannot show it is reasonable probable that he would have obtained a more favorable result had the jury been instructed regarding expert witness testimony. (People v. Williams (1988) 45 Cal.3d 1268, 1320 [“‘“It is... the rule... that the erroneous failure to instruct the jury regarding the weight of expert testimony is not prejudicial unless the reviewing court, upon an examination of the entire cause, determines that the jury might have rendered a different verdict had the omitted instruction been given”’”], disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 569.)
“The proper test for judging the adequacy of instructions is to decide whether the trial court ‘fully and fairly instructed on the applicable law....’ [Citation.] ‘“In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]”’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonable susceptible to such interpretation.’ [Citation.]” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111–1112.) Although the trial court did not instruct under CALCRIM No. 332, it did give the jury CALCRIM No. 226, which told the jury how to judge the credibility and believability of witnesses generally and is referred to by CALCRIM No. 332. In addition, and importantly, the court instructed the jury under CALCRIM No. 301 that the testimony of Officer Sanchez required supporting evidence in order to prove any fact. And the court told the jury how to evaluate conflicting evidence under CALCRIM No. 302. Based on these instructions, the jury was adequately equipped on how to evaluate Officer Sanchez’s testimony and could not simply accept her opinion without evidence to support it. Absent an indication to the contrary, we presume the jury followed the court’s instructions. (People v. Gray (2005) 37 Cal.4th 168, 217.)
In addition, defense counsel subjected Officer Sanchez to rigorous cross-examination regarding her conversation with Givan and her knowledge of prostitution in the area based on her undercover work. And defense counsel extensively argued to the jury during closing remarks that Officer Sanchez was not being truthful regarding her account of the incident with Givan and that her testimony on prostitution was unbelievable. Given this cross-examination and argument, and taking the instructions given as a whole, there is no reasonable probability that the jury might have reached a verdict more favorable to Givan had they been instructed specifically under CALCRIM No. 332 that they could disregard Officer Sanchez’s opinion if they found it to be “unbelievable, unreasonable, or unsupported by the evidence.”
Contrary to Givan’s contention, this case is not like People v. Reeder (1976) 65 Cal.App.3d 235, where the appellate court concluded the trial court’s failure to instruct sua sponte on the evaluation of expert witness testimony constituted prejudicial error. In Reeder, the victim and defendant gave conflicting accounts in a trial of charges of forcible rape and sex perversion. (Id. at p. 238.) Then two polygraph experts testified for the People, one opining that the defendant had been untruthful in his account of the incident during his polygraph examination and one opining that the victim had been truthful in responding to questions during her polygraph examination. (Id. at p. 239.) In concluding the failure to instruct on the evaluation of expert witness testimony constituted prejudicial error, the appellate court noted that both witnesses specifically had testified as experts for the People and, through their testimony, which was not subject to cross-examination or rebuttal, “tended to enshroud the practice of polygraphy in an aura of infallibility, ” when “polygraph evidence is considered by the great weight of authority to be so unreliable as to be inadmissible without a stipulation.” (Id. at p. 242; see id. at p. 244.) Here, in contrast, Officer Sanchez was subject to extensive cross-examination, her testimony was critiqued extensively in closing argument and she did not testify to a matter that is considered universally unreliable. Accordingly, unlike in Reeder, the instructions given in this case on evaluating witnesses generally were sufficient for the jury to evaluate Officer Sanchez’s testimony.
4. The Record Does Not Support a Claim of Ineffective Assistance of Counsel
A defendant claiming ineffective assistance of counsel in violation of his Sixth Amendment right to counsel must show that his counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and that it is reasonably probable, but for counsel’s failings, the defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674]; In re Jones (1996) 13 Cal.4th 552, 561.) “‘The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof... must be a demonstrable reality and not a speculative matter.’” (People v. Karis (1988) 46 Cal.3d 612, 656.) A presumption exists that counsel’s actions “‘might be considered sound trial strategy’” under the circumstances. (Strickland, at p. 689; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) In particular, “‘[d]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.’ [Citations].” (People v. Salcido (2008) 44 Cal.4th 93, 172.) “Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions.” (People v. Lucas (1995) 12 Cal.4th 415, 442; see also People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [“‘If the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ” [citation], the contention [that counsel provided ineffective assistance] must be rejected’” (first set of brackets in original)].)
Givan argues that, even if the trial court did not commit reversible error by failing to instruct on expert witness testimony under CALCRIM No. 332, his defense counsel rendered ineffective assistance by failing to object to Officer Sanchez’s testimony that Givan was trying to recruit her as a prostitute as improper expert opinion. Any objection, however, would not have changed the nature of the evidence. If defense counsel had objected to Officer Sanchez’s testimony, the prosecutor could have used hypothetical questions to elicit testimony that a man who boasts about his status in the neighborhood, asks a woman who says she sometimes works as a prostitute to “roll with him, ” and promises to take care of her is recruiting her to work for him as a prostitute. (People v. Ward (2005) 36 Cal.4th 186, 209 [“‘Generally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth, ”’” as long as the question is rooted in the facts shown by the evidence].) Defense counsel, therefore, could have made a tactical decision not to object to the testimony. Defense counsel did object to Officer Sanchez’s testimony as speculative and then extensively cross-examined her and critiqued her account of the incident and opinions during closing argument. Such trial strategy was not necessarily unreasonable and was a matter within counsel’s discretion. (In re Seaton (2004) 34 Cal.4th 193, 200, fn. 3 [“‘“‘trial counsel’s tactical decisions are accorded substantial deference’”’”]; see also People v. Salcido, supra, 44 Cal.4th at p. 172 [deciding whether to object is inherently tactical].)
Moreover, even assuming Givan could put forth a colorable claim that his defense counsel’s conduct objectively fell below prevailing professional norms, Givan cannot show that it is reasonably probable he would have obtained a more favorable result at trial absent his counsel’s failing. (Strickland v. Washington, supra, 466 U.S. at pp. 687, 694; In re Jones, supra, 13 Cal.4th at p. 561.) Given the strong evidence of guilt, is it not reasonably probable defense counsel’s failure to object to Officer Sanchez’s opinion as improper expert testimony had an adverse impact on the jury’s verdict.
5. The Trial Court Properly Determined, Based on Its In Camera Review, That Givan Was Not Entitled to Disclosure of Pitchess Material
“For approximately a quarter-century our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant’s defense.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225, fn. omitted (Mooc); see Pitchess, supra, 11 Cal.3d 531.) To balance the defendant’s right to discovery of records pertinent to his or her defense, and thus to a fair trial, with the peace officer’s reasonable expectation that his or her personnel records remain confidential, the Legislature adopted a statutory scheme requiring a defendant to meet certain prerequisites before a trial court considers his or her request. (People v. Prince (2007) 40 Cal.4th 1179, 1284–1285; Mooc, at p. 1227;see §§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043–1047 [statutory scheme governing Pitchess motions].)
A defendant seeking to initiate discovery must file a written motion that includes “[a] description of the type of records or information sought, ” supported by “[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency indentified has the records or information from the records.” (Evid. Code, § 1043, subd. (b)(2) & (3); California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019–1020.)
“Good cause for discovery exists when the defendant shows both ‘“materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ [Citation.] A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick).) The defendant need only present a factual scenario of officer misconduct “that might or could have occurred.” (Id. at p. 1026.)That is because “a credibility or persuasiveness standard at the Pitchess discovery stage would be inconsistent with the statutory language.” (Ibid.) The defendant, however, must request information with sufficient specificity to preclude the possibility that he or she is “simply casting about for any helpful information.” (Mooc, supra, 26 Cal.4th at p. 1226.)
If the trial court concludes the defendant has satisfied the prerequisites and made a good cause showing for discovery, the custodian of records must bring to court all documents “‘potentially relevant’” to the defendant’s request. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court then examines the documents in chambers with only the custodian of records and such other persons he or she is willing to have present. (Evid. Code, §§ 915, subd. (b), 1045, subd. (b).) “Subject to certain statutory exceptions and limitations, ” the trial court must disclose to the defendant “‘such information [that] is relevant to the subject matter involved in the pending litigation.’” (Mooc, supra, at p. 1226; see also Warrick, supra, 35 Cal.4th at p. 1019.) “A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion.” (People v. Hughes (2002) 27 Cal.4th 287, 330.)
The trial must exclude from disclosure: “(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. [¶] (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.” (Evid. Code, § 1045, subd. (b); see also Mooc, supra, 26 Cal.4th at pp. 1226–1227.)
In his pretrial motion for Pitchess discovery, Givan’s counsel asserted that Givan was requesting personnel records of Officer Sanchez because, although he had a conversation with Officer Sanchez in the liquor store, her report on what he said to her was inaccurate and the materials requested “would be used by the defense to locate witnesses to testify that the officer has a character trait, habit, and custom of engaging in misconduct of the type alleged in this case. These witnesses would also testify to specific instances of misconduct of the type alleged in this case.” The trial court found good cause for it to review in camera the personnel file of Officer Sanchez. At the in camera hearing, the trial court reviewed and described Officer Sanchez’s file and determined that there was no discoverable Pitchess information. (See Mooc, supra, 26 Cal.4th at p. 1229.)
At Givan’s request, we reviewed the sealed record of the in camera hearing before the trial court. Based on that review, we conclude the trial court properly exercised its discretion in concluding that Officer Sanchez’s personnel file did not contain any material appropriate for disclosure under Pitchess.
6. Givan Is Entitled to Additional Presentence Custody Credit
The trial court awarded Givan 198 days of presentence custody credits, 172 actual days and 26 days of work and conduct credit. Givan contends, and the People concede, that the trial court erred by limiting his work and conduct credit to 15 percent of his actual credit, which is required when a defendant is convicted of a violent felony under section 667.5, subdivision (c), and Givan was not so convicted here. (See § 2933.1, subd. (a).) Givan also contends that, in addition to calculating his credits without any violent-felony-conviction limitation, he is entitled to the benefit of the amendment to section 4019, which took effect on January 25, 2010, while this appeal was pending, and would afford him a total of 172 days of work and conduct credit. On this point, regarding whether the amendment to section 4019 is retroactive, the People disagree. We agree with Givan.
Former section 4019, subdivision (f), provided that, if a defendant earned work and conduct credits, six days were deemed to have been served for every four days the defendant spent in actual custody. After the amendment, a defendant who earns work and conduct credits now is deemed to have served four days for every two days of actual custody. (§ 4019, subd. (f).) Under the new formula in the amended version of section 4019, Givan would be entitled to 172 days of work and conduct credits.
The more generous credit provision in section 4019 does not apply when the defendant was committed for a serious felony as defined in section 1192.7, or has a prior conviction for a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5. (§ 4019, subd. (b)(2).) Here, Givan was not convicted of a serious felony under section 1192.7, and his prior juvenile adjudication for robbery, although a strike, is not a prior serious felony conviction under section 1192.7 or a violent felony conviction under section 667.5. Although the People contend the amendment is not retroactive, they do not dispute that, if there is retroactivity, Givan is entitled to the benefit of the amendment. Thus, Givan qualifies for the more generous conduct credit under the amended statute.
Although a majority of courts have concluded the amendment to section 4019 is retroactive, there is a split of authority on the issue, and the Supreme Court has granted review of a number of published cases reaching different conclusions on retroactivity, including a case from this Division. In People v. House, supra, 183 Cal.App.4th 1049, review granted June 23, 2010, S182813, we held that the amended section 4019 applies retroactively. While we await guidance from the Supreme Court, we continue to agree with our conclusion in House that, because the amendment to section 4019 lessens a defendant’s punishment and no clear legislative intent indicates that it was not to apply retroactively, the amendment retroactively benefits a defendant. (See In re Estrada (1965) 63 Cal.2d 740, 746; In re Chavez (2004) 114 Cal.App.4th 989, 999.) We thus conclude that Givan is entitled to the benefit of the amendment, which affords him 172 days of work and conduct credit, and order the abstract of judgment corrected. (See People v. Taylor (2004) 119 Cal.App.4th 628, 647 [“sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered”].)
The lead case in which the Supreme Court has granted review is People v. Brown III, (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963, where the Third District concluded the amendment was retroactive. Other published cases finding retroactivity include People v. Jones (2010) 188 Cal.App.4th 165 (Third Dist.); People v. Bacon (2010) 186 Cal.App.4th 333, review granted October 13, 2010, S184782 (Second Dist., Div. Eight); People v. Keating (2010) 185 Cal.App.4th 364, review granted September 22, 2010, S184354 (Second Dist., Div. Seven); People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552 (First Dist., Div. Five); People v. Norton (2010) 184 Cal.App.4th 408, review granted August 11, 2010, S183260 (First Dist., Div. Three); People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808 (First. Dist., Div. Two); People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813 (Second Dist., Div. One). Published cases finding no retroactivity include People v. Eusebio (2010) 185 Cal.App.4th 990, review granted September 22, 2010, S184957 (Second Dist., Div. Four); People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724 (Sixth Dist.); People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314 (Fourth Dist., Div. Two); People v. Rodriguez (2010) 182 Cal.App.4th 535, review granted June 9, 2010, S181808 (Fifth Dist.).
DISPOSITION
The judgment is modified to reflect an award of 344 days of presentence custody credit, 172 days of actual credit and 172 days of work and conduct credit. As modified, the judgment is affirmed. The trial court is directed to forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: MALLANO, P. J., CHANEY, J.