Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Comparet-Cassani, Judge, Los Angeles County Super. Ct. No. NA068128
John Doyle, 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, Victoria B. Wilson and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, J.
Ricardo Martinez was convicted of two counts of attempted murder and one count of shooting at an occupied motor vehicle, with findings that he had personally used and discharged a firearm causing great bodily injury ancillary to one of the attempted murder counts, that a principal had discharged a firearm causing great bodily injury, and that the crimes were committed for the benefit of a criminal street gang. (Pen. Code, §§ 187, subd. (a), 664, 12022.53, subds. (b), (c), (d), (e), 186.22, subd. (b)(1).) He was sentenced to state prison for a term of 60 years to life. Martinez appeals, claiming there were Pitchess (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and sentencing errors. We reject the Pitchess claim but agree (as does the Attorney General) that Martinez’s sentence must be modified and, as modified, affirm the judgment.
Undesignated section references are to the Penal Code.
FACTS
On September 16, 2005, two drive-by shootings occurred in Long Beach within a half-hour of each other.
At about 10:30 a.m., Hon Hoeung was riding his bicycle to work when he saw a white Ford Explorer drive by in the opposite direction. The Explorer’s five occupants (four men and a woman) displayed gang signs, and the car returned about two or three minutes later. As the Explorer approached, Martinez (riding in the back seat behind the driver) fired three gunshots at Hoeung, one of which hit him in the buttocks.
At about 11:00 a.m., Brandon Nannie was sitting in his car on a street about a mile away from the first shooting when he saw the Explorer drive by, then return and pull up from behind and then next to Nannie’s car, at which point the rear passenger window was lowered and three gunshots were fired at Nannie, one of which hit him in the hip.
From a photographic array, Hoeung identified Martinez as the shooter, as did Michelle Sampson, who witnessed Nannie’s shooting. The Explorer was stopped later the same day and impounded, and its occupants (Martinez and three others) were separately interviewed by the Long Beach Police Department’s gang unit. Although Martinez initially denied any knowledge of the shootings, he admitted he was involved after he was told that two of his cohorts had provided information -- but claimed the shooter was a gang member he did not know who had just “jumped” into the Explorer. At Martinez’s residence, the police found a Colt semi-automatic handgun in a duffel bag in the garage. Martinez was arrested and charged.
At trial, the People presented evidence of the facts summarized above. In addition, Hoeung and Sampson identified Martinez as the shooter, and Nannie identified the Explorer (which belonged to Martinez’s mother) as the one used in the shootings. Martinez testified in his own defense, claiming that he had not told the detective that he was driving the Explorer during the shootings (his interview was not recorded). Martinez was convicted as noted at the outset.
DISCUSSION
I.
Martinez contends there was Pitchess error. We disagree.
A.
Before trial, Martinez filed a Pitchess motion in which he asked for the personnel records of the three investigating officers (Detectives Mark Sisneros, R. Zottneck, and R. Gonzales) who had interviewed him, claiming the police report prepared by Detective Sisneros falsely attributed incriminating statements to Martinez. He pointed out that the interview had not been recorded, and that the incriminating statements would be presented to the jury through the detectives’ testimony. It followed, he claimed, that any complaints against the detectives for “dishonesty and planting evidence” were relevant, including “records showing . . . past incidents of the officers engaging in illegal or false arrests, improper tactics, improper search and seizure, dishonesty, and false imprisonment.”
The trial court granted the motion in part with regard to Detective Sisneros but denied it outright as to Detectives Zottneck and Gonzales on the ground that the latter two had not written the police report containing the incriminating statements. As to Detective Sisneros, the court limited discovery to matters concerning “false police reports.” The court’s subsequent in camera review of Detective Sisneros’s personnel file concluded with the court’s finding that it did not contain any discoverable information.
B.
In Pitchess, the Supreme Court held that a criminal defendant has a limited right to discovery of peace officer personnel records. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1037-1038, fn. 3.) Evidence Code sections 1043 and 1045 codify that right and establish a two-step process. First, the defendant must file a motion supported by a declaration establishing good cause for the requested discovery and explaining its materiality to the pending case. Second, if good cause is shown, the trial court must conduct an in camera review of the officer’s personnel records to determine whether there is any information subject to disclosure and, if there is, allow the requested discovery. (Chambers v. Appellate Division (Nov. 26, 2007) ___ Cal.4th ___, 2007 WL 4147423; City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-84.)
To establish good cause, the motion must claim police misconduct, proffer a defense related to the claimed misconduct, and explain how the requested discovery might lead to relevant evidence or might by itself be admissible. These requirements strike a balance between two conflicting interests -- the officer’s interest in the confidentiality of his personnel records, and the defendant’s need for information to assist his defense -- and ensure that only information “potentially relevant” to the defense has to be presented to the court for its in camera review. (People v. Mooc (2001) 26 Cal.4th 1216, 1226; City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 84.) The quantum of justification is relatively low, and the defendant need not persuade the trial court that his factual scenario is believable, only that it is plausible and that the requested information is logically connected to his scenario. (People v. Johnson (2004) 118 Cal.App.4th 292, 304; Warrick v. Superior Court (2005)35 Cal.4th 1011, 1026-1027; People v. Mooc, supra, 26 Cal.4th at p. 1226; City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at pp. 86-89.)
C.
Because Martinez did not make any showing at all of a connection between his proposed defense and any wrongdoing by Detectives Zottneck and Gonzales, that part of his motion was properly denied. (People v. Hughes (2002) 27 Cal.4th 287, 330 [Pitchess ruling will be reversed only for abused discretion]; People v. Collins (2004) 115 Cal.App.4th 137, 151; California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1023-1025 [Pitchess motion should have been denied when officer whose records were sought was not involved in use of force the defendant claimed was excessive].)
With regard to Detective Sisneros, we reject Martinez’s contention that the trial court abused its discretion by limiting the scope of its review to prior accusations of falsified reports. Martinez’s suggestion that he was entitled to everything in the file related to any sort of “dishonesty” is based on a case that has nothing to do with Pitchess (People v. Wheeler (1992) 4 Cal.4th 284 [concerning the kinds of evidence admissible for impeachment, and having nothing to do with discovery]) and is entirely silent about the policy considerations discussed above. In short, the fact that an item in hand may be admissible for impeachment purposes does not give the defendant a right of carte blanche discovery into a police officer’s personnel file. We find no Pitchess error.
Were we to find error, we would find it harmless. (People v. Samuels (2005) 36 Cal.4th 96, 110 [prejudice of Pitchess error is governed by People v. Watson (1956) 46 Cal.2d 818].) Two eyewitnesses identified Martinez as the shooter and his mother’s Explorer as the vehicle used in both shootings. This was not a close case.
II.
At Martinez’s request, we have reviewed Detective Sisneros’s sealed personnel file for any information suggesting the trial court might have erred in finding there was no discoverable information. We found no error. (People v. Mooc, supra, 26 Cal.4th at p. 1231.)
III.
Martinez contends, the Attorney General concedes, and we agree that there were several sentencing errors.
A.
The trial court sentenced Martinez as follows: On count 1, the attempted murder of Hoeung, life with the possibility of parole, plus 25 years to life for one firearm enhancement (with the sentence on the other firearm enhancements stayed), plus 10 years for the gang enhancement; on count 2, the attempted murder of Nannie, a consecutive life term with the possibility of parole, plus 25 years to life for a firearm enhancement (with the sentence on the gang enhancement stayed); on count 3, the shooting at Nannie’s occupied vehicle, a concurrent five-year term, plus concurrent terms of 25 years to life for the firearm enhancement and 15 years for the gang enhancement, a total of 60 years to life.
B.
The 10-year gang enhancement on count 1 should not have been imposed because Martinez was sentenced to a term of life with the possibility of parole for the attempted murder; instead, the sentence should specify a 15-year minimum term for parole eligibility. (§ 186.22, subds. (b)(4), (b)(5), (e)(6); People v. Lopez (2005) 34 Cal.4th 1002, 1004-1011.)
The stayed 10-year gang enhancement should not have been imposed on count 2 because that count carried a firearm enhancement term of 25 years to life (§ 12022.53, subd. (e)(1)) based upon a principal’s discharge of a firearm causing injury. The same is true with regard to the concurrent gang enhancement imposed for count 3. (See People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.)
The concurrent sentence imposed for the count 3 crime (shooting at the vehicle) should have been stayed because the act of shooting at Nannie’s vehicle and the attempted murder of Nannie were one and the same thing. (§ 654; People v. Ramirez (2006) 39 Cal.4th 398, 478.)
DISPOSITION
The judgment is modified by (1) striking the 10-year gang enhancement term imposed on count 1, the stayed 10-year gang enhancement term imposed on count 2, the stayed 15-year gang enhancement term imposed on count 3, and staying the concurrent 30-year sentence imposed for the count 3 offense, and (2) specifying with regard to count 1 that Martinez must serve a minimum of 15 years before he is eligible for parole; as modified, the judgment and sentence of 50 years to life with the possibility of parole is affirmed, and the cause is remanded to the trial court with directions to issue a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: MALLANO, Acting P.J., ROTHSCHILD, J.