Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA301884 Carol H. Rehm, Jr., Judge.
Syda Kosofsky, 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, Senior Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Raul Gonzalez appeals from the judgment entered following his conviction by a jury on one count of selling, transporting or offering to sell a controlled substance (cocaine base). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Gonzalez was charged by information with one count of selling, transporting or offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a)). The information specially alleged Gonzalez had suffered one prior conviction for a serious or violent felony within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d)) and three prior felony convictions for selling controlled substances or possessing controlled substances for the purpose of sale (Health & Saf. Code, § 11370.2, subd. (a)).
2. The Evidence at Trial
Los Angeles Police Detectives Burt Feldtz and Chris Luna, using high powered binoculars from inside a building overlooking the Fifth Street corridor in Los Angeles, observed Walter Sims approach Ronald Ward and hand Ward some money. Ward and Sims then crossed the street to meet Gonzalez. Ward gave Gonzalez money. Gonzalez put the money in his right pants pocket, retrieved a small plastic packet (a “bindle”) containing a white, rock-like substance from his left pants pocket and handed it to Ward, who, in turn, handed it to Sims. Sims put the bindle in his pocket and walked away. Gonzalez then gave Ward a $5 bill.
After the transaction, Gonzalez sat down near a homeless encampment, obscuring the detectives’ view of him for a few minutes. Detectives Feldtz and Luna instructed bike patrol officers nearby to detain Sims, Ward and Gonzalez. The patrol officers detained Sims and Ward. During the detentions, the officers found the bindle in Sims’s pocket and a crumpled $5 bill in Ward’s hand. When they detained Gonzalez, the patrol officers found a cocaine pipe in his possession, but no money or drugs. The bindle found in Sims’s pocket contained .84 grams of cocaine base.
3. Evidence of a Prior Drug Transaction
During a pretrial hearing pursuant to Evidence Code section 402, Gonzalez moved to exclude evidence of the circumstances surrounding his prior arrest in February 2006 for selling drugs. The prosecutor argued the prior conduct was admissible as evidence of a common plan pursuant to Evidence Code section 1101, subdivision (b), and made the following offer of proof: “As our undercover officer was walking down the street, [Gonzalez] contacted [her] [and] said, ‘Do you want to buy some drugs’ basically -- and of course, I am paraphrasing. Our undercover officer said, ‘yes,’ hands the money to the middleman. The middleman hands the money to Gonzalez. Gonzalez hands the drugs to the middleman [who] hands the drugs to the undercover officer.”
Based on the offer of proof, the court denied the motion to exclude the evidence, concluding the use of the “middleman approach” showed a “common scheme or plan.” The court explained, “In this case, the People seek to introduce the February 2006 events, which occurred almost at the identical location, almost at the identical time, although that’s of minimal relevance, using the same middleman approach between the defendant, the contact, and what is sometimes referred to as ‘the hook.’ It appears to the court that these elements establish a common plan and show the existence of a plan rather than a series of spontaneous similar acts and support the inference that the defendant employed the same plan in committing the charged offense.” The court also held the evidence was relevant to establish intent and was not unduly prejudicial under Evidence Code section 352.
At trial the undercover officer involved in Gonzalez’s February 2006 arrest -- Dalila Vizcarre -- testified concerning the February 2006 drug transaction. According to Vizcarre, Gonzalez approached her while she was working undercover and asked what she needed. Vizcarre responded she wanted “a 20,” meaning $20 worth of drugs. Gonzalez asked if she wanted a “six,” meaning six pieces of rock cocaine. Gonzalez then approached a third person, a man with the last name of Lopez, obtained from Lopez six pieces of rock cocaine and handed the rocks to Vizcarre, who gave Gonzalez $20.
The trial court observed that, in Vizcarre’s description, Gonzalez was the middleman, not the seller. Because the testimony did not comport with the offer of proof, which was based on a police report of the incident, the trial court ordered the testimony stricken and directed the jury “to strike it from your notes, to strike it from your memory, and not to consider it in any way.” The prosecutor did not object, telling the court, “I submit. I did not expect that [description] either.”
Asked by the prosecutor why her police report differed from her testimony, Officer Vizcarre testified she had written a follow-up police report that was consistent with her testimony.
4. The Jury’s Verdict, the Court Trial on Prior Convictions and Sentence
The jury found Gonzalez guilty of selling cocaine base. After Gonzalez waived his right to a jury trial on the prior conviction allegations, in a bifurcated proceeding the court found true the allegation Gonzalez had suffered a prior conviction for a serious or violent felony within the meaning of the Three Strikes law and three prior convictions for selling controlled substances or possessing controlled substances for purpose of sale within the meaning of Health and Safety Code section 11370.2, subdivision (a). The trial court sentenced Gonzalez to an aggregate state prison term of 17 years, consisting of the middle term of four years for the substantive offense, doubled under the Three Strikes law, plus three consecutive three-year terms for each of the prior sales-related drug convictions.
CONTENTIONS
Gonzalez contends the trial court erred in initially denying his motion to exclude the evidence of the prior drug transaction, resulting in prejudice that was not dissipated by the court’s subsequent order to strike the evidence and instructions to the jury to disregard it; the prosecutor committed prejudicial misconduct during closing argument by referring to Gonzalez as a repeat drug dealer even though evidence of the prior drug incident had been stricken; and the trial court erred in denying his motion to dismiss and his motion for a new trial based on the improper references to the prior incident. In addition, he asserts independent review of the in camera hearing on his motion for discovery materials under Evidence Code sections 1043 and 1045 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) is necessary to determine whether the trial court properly exercised its discretion in determining which documents in the officers’ personnel files were discoverable. Finally, Gonzalez contends the court’s true finding that he had suffered a prior qualifying strike conviction is not supported by substantial evidence.
DISCUSSION
1. General Principles Governing Evidence of Uncharged Misconduct
California law has long precluded use of evidence of a person’s character (a predisposition or propensity to engage in a particular type of behavior) as a basis for an inference that he or she acted in conformity with that character on a particular occasion: Evidence Code section 1101, subdivision (a), “prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Indeed, “‘[t]he rule excluding evidence of criminal propensity is nearly three centuries old in the common law.’” (People v. Falsetta (1999) 21 Cal.4th 903, 913.)
Evidence Code section 1101, subdivision (a), provides, “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
Evidence Code section 1101, subdivision (b), clarifies, however, that this rule “does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (Ewoldt, supra, 7 Cal.4th at p. 393, see Falsetta, supra, 21 Cal.4th at p. 914 [“the rule against admitting evidence of the defendant’s other bad acts to prove his present conduct was subject to far-ranging exceptions,” citing Evid. Code, § 1101, subd. (b)].) “‘[E]vidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes . . . only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.’” (People v. Carter (2005) 36 Cal.4th 1114, 1147.) “As Evidence Code section 1101, subdivision (b) recognizes, that a defendant previously committed a similar crime can be circumstantial evidence tending to prove his identity, intent, and motive in the present crime. Like other circumstantial evidence, admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence vel non of some other rule requiring exclusion.” (People v. Roldan (2005) 35 Cal.4th 646, 705; see also People v. Walker (2006) 139 Cal.App.4th 782, 796; Simons, Cal. Evid. Manual (2008) § 6.10, p. 444.)
Evidence Code section 1101, subdivision (b), provides, “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
The least degree of similarity between the uncharged act and the charged offense is required in order to prove intent. (Ewoldt, supra, 7 Cal.4th at p. 402.) “A greater degree of similarity is required in order to prove the existence of a common design or plan. . . . [I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’. . . [¶] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (Id. at pp. 402-403.) The greatest degree of similarity between the prior act and the charged offense is required when the evidence is offered to prove identity. (See id. at p. 403 [for prior crimes to be relevant to identity, “‘[t]he pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature’”].)
On appeal, the trial court’s determination whether evidence is admissible pursuant to Evidence Code section 1101, subdivision (b), is reviewed for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.)
2. The Trial Court Did Not Abuse its Discretion in Initially Admitting the Evidence of the Prior Drug Sale Pursuant to Evidence Code Section 1101, Subdivision (b), Based on the People’s Offer of Proof
Gonzalez contends the evidence of the prior drug sale did not raise an inference of a common design or plan and thus the court erred in denying his initial motion to exclude it. In reviewing the trial court’s ruling, we must consider the facts before the court at the time of its ruling. (People v. Welch (1999) 20 Cal.4th 701, 739; People v. Hernandez (1999) 71 Cal.App.4th 417, 425 [“[w]e may assess the trial court’s ruling only on the facts made known to it at the time it made that ruling”].) That is, we evaluate whether the trial court abused its discretion in determining the evidence was admissible based on the evidentiary proffers made.
At the time of its ruling, the court had been presented with an offer of proof, supported by a police report, that Gonzalez had been the seller in two very similar drug transactions, one occurring in February 2006 and the other just two months later at about the same time of day in the same location and using the same middleman approach. Gonzalez’s defense in this case was that he was only a drug user, not a seller, and the detectives were either mistaken in their identification of him or purposefully framed him because arresting a seller would “look better” for their statistics. Under these circumstances evidence of Gonzalez’s alleged modus operandi -- approaching the buyer through a middleman -- was highly probative on the central issue in the case. (See, e.g., Ewoldt, supra,7 Cal.4th at pp. 402-403 [other crimes evidence is admissible to prove intent or common plan if current and prior conduct are sufficiently similar to support rational inference that defendant probably employed same plan or harbored same intent in each instance]; see generally People v. Kipp, supra, 18 Cal.4th at pp. 370-371.) There was no error in initially admitting the prior crimes evidence.
3. The Court Did Not Err in Denying Gonzalez’s Motion to Dismiss Based on the Initial Admission of the Prior Crimes Evidence
On September 21, 2005 Officer Vizcarre testified as the final witness for the prosecution and provided evidence of Gonzalez’s prior drug transaction. At the conclusion of her testimony, the trial court struck the evidence in its entirety and instructed the jury to disregard it and not allow it “to enter in any way into their deliberations” or consider it for any purpose. When the trial resumed on September 25, 2005, defense counsel immediately moved “to dismiss” the case based upon the admission of Vizcarre’s testimony concerning the prior drug transaction. The court denied the motion because the evidence had been stricken and the jury appropriately instructed to disregard it. The court stated it would remind the jury of that admonition again (which it did) and, in light of that instruction, would not dismiss the case.
The trial court stated, “At this time, ladies and gentleman, the court is going to order the testimony of Officer Vizcarre stricken. You are directed to strike it from your notes, to strike it from your memory, and not to consider it in any way.”
Characterizing the motion to dismiss as a motion for a mistrial, Gonzalez contends the court erred in denying the motion. A trial court should grant a motion for mistrial only if “‘a party’s chances of receiving a fair trial have been irreparably damaged.’” (People v. Bolden (2002) 29 Cal.4th 515, 555; accord People v. Ayala (2000) 23 Cal.4th 225, 282.) A mistrial should not be granted if the prejudice can be cured by admonition or instruction. (People v. Wharton (1991) 53 Cal.3d 522, 565; Bolden, at p. 555.) Whether or not a particular incident is “incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’” (People v. Hines (1997) 15 Cal.4th 997, 1038;see also Bolden, at p. 555 [trial court’s denial of motion for mistrial is reviewed under “deferential abuse of discretion standard”].)
Gonzalez’s counsel did not specifically move for a mistrial. Nevertheless, even if we accept Gonzalez’s characterization of the motion to dismiss as one for a mistrial, the court did not abuse its discretion in denying it. The objectionable evidence of Gonzalez’s prior drug transaction was excluded and the jury properly instructed to disregard it. We agree with the trial court that, under the circumstances of this case, that instruction was sufficient to cure any prejudice. (See People v. Yeoman (2003) 31 Cal.4th 93, 139 [“the presumption that jurors understand and follow[ing] instructions [is] ‘[t]he crucial assumption underlying our constitutional system of trial by jury’”]; see also People v. Avila (2006) 38 Cal.4th 491, 573 [when testimony improperly referred to defendant having recently been in prison, trial court’s prompt admonishment to jury “not to consider it for any purpose” cured any prejudicial effect of testimony].)
4. Gonzalez Has Forfeited His Claim of Prosecutorial Misconduct
In closing argument the prosecutor, referring to the fact no money or drugs had been found on Gonzalez at the time of his arrest, stated, “What happened to the money? . . . [M]aybe during the course of working this street and knowing how things work around there he’s found a way to get rid of what he needs to get rid of. I would certainly say a criminal who’s worth his salt and who’s done this as often as I am thinking he has done it, he knows what to do with it.” On appeal Gonzalez contends the prosecutor’s argument improperly suggested to the jury Gonzalez was a frequent drug seller, effectively, amounting to an impermissible comment on the evidence of a prior drug sale that the trial court had struck. Gonzalez asserts the prosecutor’s remarks amounted to prejudicial misconduct.
“‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’” (People v. Navarette (2003) 30 Cal.4th 458, 506.)
A defendant cannot complain on appeal of error by a prosecutor unless he or she objected on the same ground in a timely fashion in the trial court and requested the jury be admonished to disregard the error. (People v. Jones (2003) 29 Cal.4th 1229, 1262; People v. Box (2000) 23 Cal.4th 1153, 1207.) Here, Gonzalez’s counsel did not object to the remark, and thus did not provide the trial court with the opportunity to cure any prejudice that may have resulted, even though an objection and request for admonition, in light of the trial court’s prior ruling, plainly would not have been futile. Accordingly, Gonzalez’s claim of prosecutorial misconduct is forfeited.
The People’s argument the comment could conceivably be interpreted as a comment on the evidence -- an inference based on evidence the transaction occurred in a high crime area frequented by drug traffickers (People v. Sully (1991) 53 Cal.3d 1195, 1235 [fair characterization of evidence permissible during closing argument]) -- is far from convincing. Nonetheless, as we explain more fully in the next section, the prosecutor’s comment, when considered in conjunction with the trial court’s repeated admonitions to the jury not to consider evidence stricken from the record and other instructions reminding the jury that arguments of counsel are not evidence, did not result in a miscarriage of justice. (See People v. Barnett (1998) 17 Cal.4th 1044, 1133 [reversal for prosecutorial misconduct warranted only if reasonably probable defendant would have received more favorable verdict absent such remarks].)
5. Gonzalez’s Claim of Ineffective Assistance of Counsel Fails Because He Has Not Demonstrated His Counsel Was Ineffective or He Suffered Any Prejudice
Recognizing the forfeiture problem, as an alternative to his claim of prosecutorial misconduct, Gonzalez urges us to hold his counsel’s failure to object to the prosecutor’s remark constituted ineffective assistance of counsel. To prevail on this claim, Gonzalez must establish his counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Williams (1997) 16 Cal.4th 153, 215.)
“‘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.) There is a presumption the challenged action “‘might be considered sound trial strategy’” under the circumstances. (Strickland v. Washington, supra,466 U.S. at pp. 689, 694; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 [“[r]eviewing 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. Mitcham (1992) 1 Cal.4th 1027, 1058 [“‘[i]f 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’”].) “[R]arely will the failure to object establish incompetence of counsel, because the decision whether to raise an objection is inherently tactical.” (People v. Lewis (2001) 25 Cal.4th 610, 678.)
Here, it is not difficult to conceive that Gonzalez’s counsel made a tactical decision to forgo an objection, which would have highlighted the prior criminal conduct to the jury. (See People v. Catlin (2001) 26 Cal.4th 81, 165 [“the decision whether to object, move to strike, or seek admonition regarding [objectionable] testimony is highly tactical, and depends upon counsel’s evaluation of the gravity of the problem and whether objection or other responses would serve only to highlight the undesirable testimony”]; People v. Williams, supra, 16 Cal.4th at p. 215 [“trial counsel may have decided not to object . . . because an objection would have highlighted the testimony”].) Instead, immediately following closing argument, Gonzalez’s counsel ensured the jury instructions included a specific instruction to disregard, and therefore, not consider for any purpose, any evidence the trial court had previously ordered stricken (including the evidence of the prior drug sale). On this record we cannot say counsel’s performance was constitutionally deficient.
We recognize Gonzalez’s trial counsel was effectively thrust upon the horns of a dilemma: Absent an objection, the defendant suffers a forfeiture on appeal; with an objection, the defendant highlights the very thing he or she wants the jury to disregard. Nonetheless, in such a circumstance an objection accompanied by a request for an admonition, if one would cure the problem, or request for mistrial, if an admonition would not cure the problem, appears to be the most effective means of addressing the problem while preserving the issue for appeal. Because Gonzalez’s counsel did not move for a mistrial based on the prosecutor’s comment and that issue has not been raised on appeal, we do not consider the impact of that decision other than to note, in light of the trial court’s prior ruling denying a mistrial for similar reasons, such a motion was unlikely to have been granted.
At Gonzalez’s counsel’s request, prior to deliberations the court instructed the jury pursuant to Judicial Council of California Criminal Jury Instructions (2006-2007) (CALCRIM) No. 222, “During the trial, the attorneys have objected to questions or moved to strike answers given by the witness. I ruled on the objections according to the law. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. If I ordered testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose.”
Even if counsel’s failure to object to the remark could be deemed ineffective assistance (a dubious proposition for the reasons explained), in light of the instructions and admonitions given and the overwhelming and uncontradicted evidence as to Gonzalez’s culpability, it is not reasonably probable that, absent the error, Gonzalez would have received a more favorable verdict. (People v. Williams, supra, 16 Cal.4th at p. 215 [it is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a “reasonable probability” that absent the errors the result would have been different]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218; see People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
When the jury returned its verdict, Gonzalez’s counsel moved for a new trial based on both the alleged improper admission of Vizcarre’s testimony (notwithstanding the subsequent order striking that testimony) and the prosecutor’s remarks in closing argument (see Pen. Code, § 1181, subd. 5 [new trial proper when district attorney has committed prejudicial misconduct]). In denying the motion, the trial court determined striking the prior crimes evidence from the record, coupled with admonitions given to the jury to disregard Vizcarre’s testimony and any evidence of prior drug sales, along with instructions that closing argument was not evidence, were sufficient to cure any prejudice resulting from the prosecutor’s single remark. Presuming, as we must, the jury followed the instructions given to it by the court (People v. Yeoman, supra, 31 Cal.4th at p. 139), we find no abuse of discretion in the trial court’s determination its admonition was sufficient and a new trial was not warranted.
6. The Trial Court Did Not Err in Determining, Based on Its In Camera Review, the Extent of the Pitchess Material To Be Disclosed to Gonzalez
“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 (Mooc), fn. omitted; see Pitchess, supra, 11 Cal.3d 531.) To balance the defendant’s right to discovery of records pertinent to his or her defense with the peace officer’s reasonable expectation that his or her personnel records will remain confidential, the Legislature has adopted a statutory scheme requiring a defendant to meet certain prerequisites before his or her request may be considered. (See Pen. Code, §§ 832.5, 832.7 & 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess motions].) Specifically, a defendant seeking discovery of a peace officer’s confidential personnel record must file a written motion describing the type of records or information sought (Evid. Code, § 1043) and include with the motion an affidavit demonstrating “good cause” for the discovery and the materiality of such evidence relative to the defense. (Mooc, at p. 1226; see also Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) The information must be requested with “sufficient specificity to preclude the possibility of a defendant’s simply casting about for any helpful information.” (Mooc, at p. 1226.)
Once the trial court concludes the defendant has satisfied these prerequisites, the custodian of records is obligated to bring to court all documents “potentially relevant” to the defendant’s motion. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court must then examine the information in chambers, outside the presence of any person except the proper custodian “and such other persons the custodian of records is willing to have present.” (Evid. Code, §§ 915, subd. (b), 1045, subd. (b); see Warrick v. Superior Court, supra,35 Cal.4th at p. 1019.) Subject to certain statutory exceptions and limitations, the trial court must then disclose to the defendant “‘such information [that] is relevant to the subject matter involved in the pending litigation.’” (Mooc, at p. 1226; Warrick, 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 court must exclude from discovery: “(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; see also Mooc, supra, 26 Cal.4th at pp. 1226-1227.)
In an in camera proceeding in this case, the trial court ordered material from the personnel files of Detective Feldtz, Detective Luna and Officer John Rice (the patrol officer who found the cocaine base in Sims’s possession) to be provided to the defense. On appeal Gonzalez requests we review the in camera proceedings to determine whether that order properly included all discoverable materials to which he was legally entitled. We have reviewed the sealed record of the in camera proceedings, which included detailed descriptions of the documents in the officers’ personnel files, and conclude the trial court’s order concerning the production of Pitchess material complied with all statutory and common law discovery requirements. (See Mooc, supra, 26 Cal.4th at p. 1229.)
7. Substantial Evidence Supports the Trial Court’s Determination Gonzalez Had a Prior Qualifying Strike Conviction for Assault with a Deadly Weapon
Assault with a deadly weapon is a serious felony under the Three Strikes law. (Pen. Code, § 1192.7, subd. (c)(31).) On the other hand, although “serious felonies include all those ‘in which the defendant personally inflicts great bodily injury on any person’ ([Pen. Code, § 1192.7], subd. (c)(8)), assault merely by means likely to produce GBI [great bodily injury], without the additional element of personal infliction, is not included in the list of serious felonies” under the Three Strikes law. (People v. Delgado (2008) 43 Cal.4th 1059, 1065 (italics omitted); see also Pen. Code, § 1192.7, subd. (c).) Thus, a conviction for assault with a deadly weapon under Penal Code section 245, subdivision (a)(1), is a serious felony, but a conviction under the means likely to produce great bodily injury prong of the same statute is not. (Delgado, at p. 1065.)
In this case, the abstract of judgment introduced into evidence to support the special allegation Gonzalez had suffered a prior qualifying strike conviction stated Gonzalez had been convicted following a plea of guilty of violating Penal Code section 245, subdivision (a)(1) “ADW.” Gonzalez asserts, as written, the abstract of judgment is insufficient to support the allegation his conviction under Penal Code section 245, subdivision (a)(1), was for assault with a deadly weapon, a qualifying strike conviction, rather than assault by means likely to produce great bodily injury, which does not qualify as a strike. (See People v. Delgado, supra, 43 Cal.4th at p. 1066 [when the prior conviction is for an offense that can be committed in multiple ways, at least one of which would not qualify for the enhancement, and the record of the conviction does not disclose how the offense was committed, it must be presumed the conviction was “for the least serious form of the offense”]; see also People v. Rodriguez (1998) 17 Cal.4th 253, 262.) According to Gonzalez, the ADW reference in the abstract of judgment could just as likely been used as shorthand for either Penal Code section 245, subdivision (a)(1), violation. (See, e.g., People v. Banuelos (2005) 130 Cal.App.4th 601, 606-607 [abstract of judgment’s notation of “‘ASSAULT GBI W/ DEADLY WEAPON’” mentioned both prongs of Pen. Code, § 245, subd. (a)(1), and was, therefore, ambiguous; by mentioning both prongs the notation may simply have been “a shorthand description of criminal conduct covered by section 245, subd. (a)(1) itself”]; see also Rodriguez, at p. 261 [abstract of judgment showing guilty plea to Pen. Code, § 245, subd. (a)(1), and describing offense as “‘ASLT GBI/DLY WPN’” insufficient to show prior conviction under Pen. Code, § 245, subd. (a)(1), was for assault with deadly weapon].)
A common method of proving the fact and nature of a prior conviction is to introduce certified documents from the record of the prior court proceeding, including the abstract of judgment describing the prior offense. (Pen. Code, § 969b; Evid. Code, § 1280 [hearsay exception for contemporaneous official record]; see also People v. Delgado, supra, 43 Cal.4th at p. 1066 [an officially prepared abstract of judgment prepared at or near the time of judgment is presumed a reliable summary of the prior judgment of conviction and can constitute substantial evidence of prior conviction].)
In contrast to People v. Rodriguez, supra, 17 Cal.4th 253 and People v. Banuelos, supra, 130 Cal.App.4th 601, there is no ambiguity in the abstract of judgment in this case. The abstract identifies Penal Code section 245, subdivision (a)(1), ADW -- shorthand for assault with a deadly weapon -- and does not refer at all to the great bodily injury prong of that statute. These facts closely resemble those considered in the Supreme Court’s recent decision in People v. Delgado, supra, 43 Cal.4th 1059, in which the defendant had argued an abstract of judgment identifying the prior crime as “‘Asslt w DWpn’” was, like the notations in Rodriguez and Banuelos, shorthand descriptions for a section 245, subdivision (a)(1), offense in general. The Court disagreed, explaining the shorthand description in the abstract of judgment plainly referred only to assault with a deadly weapon and not to an assault by means likely to produce great bodily injury: “Where, as here, the abstract first identified the statute by section number, then separately and clearly described only one of the two means by which the statute can be violated, the court was not required to assume the descriptive language was mere surplusage. Absent any rebuttal evidence, the court could reasonably infer that the words were there for a reason, that they meant what they said, and that they accurately set forth the form of the violation for which the defendant was convicted.” (Delgado, at p. 1071.)
Although People v. Delgado, supra, 43 Cal.4th 1059, was decided after the appellate briefs were filed in this case, both Gonzalez and the Attorney General submitted supplemental letter briefs addressing the impact of Delgado on the sentencing issue.
As in People v. Delgado, supra, 43 Cal.4th 1059, the abstract of judgment in this case identified section 245, subdivision (a)(1), and set forth only one of the two means by which that section could be violated. The trial court’s conclusion Gonzalez had suffered a prior conviction for assault with a deadly weapon (rather than assault by means of force likely to produce great bodily injury) was, therefore, reasonable and supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.