Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA071216, James B. Pierce, Judge.
William J. Capriola, 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, Steven D. Matthews and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The jury found defendant and appellant Robert Edward Kube guilty of robbery in violation of Penal Code section 211, specially finding the robbery was in the first degree and defendant personally used a handgun in committing the robbery within the meaning of section 12022.53, subdivision (b). In a separate proceeding, with defendant having waived his right to a jury trial, the trial court found defendant suffered three prior convictions—a 1991 residential burglary (§ 459), a 1994 narcotics possession offense (Health & Saf. Code, § 11350), and a 2003 narcotics possession for sales offense (Health & Saf. Code, § 11350)—for which he served prison terms (§ 667.5), with the burglary being a “serious felony” (§ 667, subd. (a)) and a “strike” under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court initially imposed a 30-year term, consisting of the upper term of 6 years doubled as a result of the strike prior, plus 10 years for the gun use enhancement, another 5 years for the prior “serious felony” enhancement, and 3 years for the three prior prison term enhancements. Four days later, after defendant had filed his notice of appeal, the trial court granted defendant’s motion to modify the judgment and ordered the three prior prison term enhancements stayed under section 654.
All statutory references are to the Penal Code unless stated otherwise.
We have requested supplemental briefing on the propriety of striking all three enhancements and addressing the jurisdictional issue arising because the notice of appeal was filed on the date of the original sentencing.
In his timely appeal, defendant (1) requests this court to conduct an independent review of the sealed portion of the record pertaining to discovery of police officer personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether the trial court erroneously withheld discoverable information from the defense and (2) contends the trial court violated his Sixth Amendment jury trial right by imposing the upper term for his conviction without a jury finding on the aggravating factors pursuant to Cunningham v. California (2007) 549 U.S. 270 127 S.Ct. 856 (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely). Because our independent review discloses no error in the trial court’s Pitchess ruling and no Cunningham/Blakely error, we reject defendant’s contentions. However, we reverse that part of the judgment imposing and staying the one year enhancement for a burglary prior prison term and remand for further proceedings on the remaining prior prison term enhancements, and otherwise affirm.
STATEMENT OF FACTS
Because there is no sufficiency of the evidence issue, we state the facts briefly in the light most favorable to the judgment. (People v. Maury (2003) 30 Cal.4th 342, 396.) In the early morning of July 22, 2006, defendant visited the apartment Andres Munera shared with Oscar Romero. Defendant drank a beer and spoke to Munera and Romero about Munera’s laptop computer. Munera fell asleep and Romero went to the bathroom. When Romero came out, defendant pointed a handgun at Romero and ordered him back into the bathroom. Romero heard defendant make noises indicative of removing cables before leaving the apartment. When Romero investigated, he saw the laptop computer was gone. The police investigation found that defendant’s fingerprint was on the beer bottle at the apartment. The two victims identified defendant from a photographic lineup and at trial. Defendant presented evidence to support an alibi defense.
DISCUSSION
Pitchess Motion
Defendant requests this court to conduct an independent review of the sealed portion of the record pertaining to discovery of personnel records of one of the police officers who conducted the robbery investigation. Pursuant to that request, we must determine whether the trial court abused its discretion and erroneously withheld discoverable information from the defense. In Pitchess, the California Supreme Court held that a criminal defendant is entitled to discovery of officer personnel records if the information contained in the records is relevant to his ability to defend against the charge. Later enacted legislation implementing the court’s rule permitting discovery (§§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047) balanced the accused’s need for disclosure of relevant information against a law enforcement officer’s legitimate expectation of privacy in his or her personnel records. The Legislature concluded that a defendant, by written motion, may obtain information contained in a police officer’s personnel records if it is material to the facts of the case. (Evid. Code, § 1043, subd. (b)(3).) When presented with such a motion, the trial court rules as to whether there is good cause for disclosure. (Id., §§ 1043, 1045.) If the trial court orders disclosure, the custodian of the officer’s records brings to court all the potentially relevant personnel records and, in camera, the trial court determines whether any of the records are to be disclosed to the defense. “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; see also Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086, citing People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Gill (1997) 60 Cal.App.4th 743, 749.)
Here, in response to defendant’s pretrial motion under Pitchess, supra, 11 Cal.3d 531, the trial court ordered the police department’s custodian of records to produce the officer’s personnel records for in camera review of complaints as to false reports within the past five years. The trial court conducted the in camera review and found no discoverable material because there were no complaints concerning false reports.
We have reviewed all material in the record regarding defendant’s Pitchess motion, including the moving papers and the sealed transcript of the in camera hearing. “The hearing transcript contains an adequate record of the court’s review and analysis of the documents provided to it. It reveals no abuse of discretion.” (People v. Myers (2007) 148 Cal.App.4th 546, 553, citing People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
Upper Term Sentence
Defendant contends the imposition of the upper term robbery sentence violated his Sixth Amendment jury trial right to have a jury finding on the aggravating factors pursuant to Cunningham, supra, 549 U.S. at page ___ [127 S.Ct. at p. 871] and Blakely v. Washington, supra, 542 U.S. at page 301. We disagree.
In People v. Black (2007) 41 Cal.4th 799, 805 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, 831 (Sandoval), the California Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham, supra, 549 U.S. at page ___ [127 S.Ct. at pp. 863-864]. Our Supreme Court held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466 (Apprendi)] and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, 41 Cal.4th at p. 812.) Our Supreme Court further held: “It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
In addition, Black II made it clear that, consistent with Apprendi, aggravating circumstances justifying the upper term may be established “based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Further, “‘[r]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Id. at p. 818.) Black II held the prior conviction exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.) “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Id. at pp. 819-820, fn. omitted.)
Here, the trial court found no circumstance in mitigation, but relied on recidivism-related statutory aggravating factors—specifically, the nature of defendant’s prior convictions, the violent nature of his current offense in comparison to the two prior narcotics convictions, and defendant’s poor performance on probation and parole. (Cal. Rules of Court, rules 4.421(b)(1) & 4.421(b)(4).) Because defendant’s “criminal history” established aggravating circumstances which “independently satisf[ied] Sixth Amendment requirements and render[ed] him eligible for the upper term[,] . . . he was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial was not violated by imposition of the upper term sentence. . . .” (Black II, supra, 41 Cal.4th at p. 820; People v. Burch (2007) 148 Cal.App.4th 862, 873 [“The use of prior convictions as factors for a sentencing departure from the statutory maximum (middle term) is constitutionally permissible because it falls within the Supreme Court’s bright-line exception.”]; see also People v. Yim (2007) 152 Cal.App.4th 366, 371.)
Prior Prison Terms
In its initial sentence on March 8, 2007, the trial court imposed a one year enhancement for each of defendant’s three prior prison terms pursuant to section 667.5, subdivision (b). Defendant filed his notice of appeal of the day of sentencing. Four days later on March 12, the trial court modified defendant’s sentence by staying all three prior prison term enhancements. We requested the parties to address the validity of the March 12 sentence modification.
A trial court is divested of jurisdiction over a criminal action by the filing of a notice of appeal. (People v. Flores (2003) 30 Cal.4th 1059, 1064; People v. Malveaux (1996) 50 Cal.App.4th 1425, 1434.) However, section 1170, subdivision (d), provides an exception whereby “the court may, within 120 days of the date of commitment . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.” (See People v. Lockridge (1993) 12 Cal.App.4th 1752, 1757.) The parties agree the trial court acted pursuant to section 1170, subdivision (d), in making its sentencing modification. Although there was no explicit reference to recalling the sentence under that statute, we assume the trial court implicitly did so.
Nevertheless, the trial court’s stay of the prior prison terms was not authorized by law. First, a trial court must either impose sentence on or strike sentence enhancements under section 667.5, subdivision (b), and Health and Safety Code, section 11370.2, subdivision (b). (See People v. Langston (2004) 33 Cal.4th 1237, 1241.) Second, when a defendant has suffered a prior “serious felony” conviction under section 667, subdivision (a), and served a prison term for that felony, it is inappropriate to impose both the five-year and the one-year enhancements for that same conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1145, 1152-1153.) Accordingly, the one year prior prison term enhancement for the burglary conviction is stricken, and we remand the matter for a hearing for the trial court to exercise its discretion whether to impose or strike the remaining enhancements.
DISPOSITION
The one year enhancement for the burglary conviction in case No. CR41556 is stricken and the matter is remanded for a hearing in which the trial court will exercise its discretion either to impose or strike the remaining two enhancements. In all other respects, the March 8, 2007 judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and forward it forthwith to the Department of Rehabilitation and Corrections.
We concur: TURNER, P. J. ARMSTRONG, J.