Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles No. BA336137, Barbara R. Johnson, Judge.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Imankhwaja Askari appeals from the judgment entered following a jury trial that resulted in his convictions for possession of a controlled substance, cocaine base, and misdemeanor possession of a smoking device. Askari was sentenced to a prison term of five years.
Askari contends the trial court erred by denying his motion for in camera review of police personnel records (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and by imposing a Penal Code section 667.5, subdivision (b) prior prison term enhancement. We reject Askari’s contention that the section 667.5, subdivision (b) enhancement was improperly imposed. We agree that the trial court erred by denying Askari’s Pitchess motion in its entirety without conducting an in camera review of two officers’ records related to limited categories of information. We therefore reverse the judgment of conviction with directions and remand the case to the trial court for further proceedings.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s case.
On February 7, 2008, at approximately 10:00 p.m., Los Angeles Police Department (L.A.P.D.) Officer Anthony Jackson was working in an undercover capacity on San Julian Street, between 5th and 6th Streets, in Los Angeles. Detective Vip Kanchanamongkol was nearby in an unmarked vehicle, wearing plainclothes. Uniformed Officers Fernando Ortega and Jared Miller were nearby in their patrol vehicle, as were officers Christopher Paterson and Eric Miller in a second patrol car. The area was well-known for narcotics use and transactions.
Jackson completed an undercover buy of narcotics from an individual later identified as Tony Ryals. Jackson broadcast the suspect’s description to the other officers, who headed to the location. Kanchanamongkol stopped in front of 627 South San Julian Street and observed Askari standing with at least 10 other persons around him. The two marked patrol cars arrived immediately thereafter. Although it was ultimately determined that Askari was not the individual who had sold the cocaine, he matched the description provided by Jackson. When the police vehicles pulled up, Askari looked in their direction and sprinted away, at a “frantic” pace. Detective Kanchanamongkol and Officers Paterson and Ortega chased Askari on foot. While Askari was in the middle of the street, he threw several small, off-white solid substances to the ground with his right hand. Ortega and Kanchanamongkol both observed Askari’s action. There was no traffic, and no other pedestrians were in the street.
Askari attempted to jump a wrought iron fence, but a security guard pushed him back. Askari continued running approximately 20 to 25 feet further, until he was detained and handcuffed. A search of Askari’s person revealed a glass pipe, of a type commonly used for smoking rock cocaine.
Approximately 15 seconds after detaining Askari, Detective Kanchanamongkol and Officer Ortega both returned to the spot where they had observed Askari drop the off-white items. Each officer recovered three off-white substances, which were placed in two Ziploc baggies. The items recovered were tested and determined to contain cocaine base, with one baggie containing.30 net grams and the other containing.38 net grams. Detective Kanchanamongkol opined that the amount recovered was a usable amount of cocaine.
b. Defense case.
Askari testified in his own behalf. He admitted being addicted to cocaine. He also admitted being in the area of San Julian Street on the evening in question, though he had no particular business in that area, and possessing the crack pipe. He had been awake for days because he had been high on crack cocaine. In fact, he had just smoked cocaine an hour before he was stopped by police. He did not, however, possess any drugs when stopped by the officers, did not have anything in his hands, and did not throw anything. He fled because he was afraid it looked as if he had been smoking cocaine.
2. Procedure.
Trial was by jury. Askari was convicted of possession of a controlled substance, cocaine base (Health & Saf. Code, § 11350, subd. (a)) and misdemeanor possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)). Askari admitted suffering a prior “strike” conviction for first degree burglary (§ 459), as well as six prior convictions within the meaning of section 667.5, subdivision (b). The trial court denied Askari’s Romero motion and sentenced him to a term of five years in prison for the possession of a controlled substance conviction, i.e., the midterm of two years, doubled pursuant to the Three Strikes law, plus a consecutive one-year section 667.5, subdivision (b) prior prison term enhancement. In addition, the court imposed a concurrent six-month jail term for the misdemeanor possession of a smoking device offense. It struck the remaining prior conviction allegations in furtherance of justice. (§ 1385.) It imposed a restitution fine, a suspended parole restitution fine, a laboratory analysis fee and related penalty assessment, and a court security fee. Askari appeals.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
1. The trial court abused its discretion by denying Askari’s Pitchess motion in its entirety.
a. Additional facts.
Prior to trial, Askari filed a Pitchess motion seeking personnel records of Detective Kanchanamongkol and Officers Jackson, Ortega, Paterson, and Eric Miller. The motion sought personnel records concerning acts evidencing aggressive behavior; attempted or actual violence or excessive force; racial, gender, ethnic, or sexual orientation bias; coercive conduct; violation of constitutional rights; fabrication of evidence, charges, reasonable suspicion, or probable cause; illegal search or seizure; false arrest; perjury or dishonesty, including writing false or misleading reports; planting evidence; and any other evidence of misconduct evidencing moral turpitude.
Defense counsel’s declaration offered in support of the motion averred that the information sought was material and relevant to Askari’s defense. The police report, prepared by Officer Jackson, stated that Detective Kanchanamongkol and Officer Ortega “observed and recovered narcotics” tossed or dropped by Askari, and Officer Paterson recovered a pipe from Askari. Counsel’s declaration explained, “what actually occurred on the date and time of the arrest of Mr. Askari was that he saw the police and began to run. At no point did he possess or throw a substance resembling rock cocaine and/or rock cocaine. He never made any kind of throwing motion. He simply never threw anything. He ran out of fear, and he ran because he did possess drug paraphernalia.” The requested materials, counsel averred, would be used to locate witnesses to testify that the officers have “a character trait, habit, and custom of engaging in misconduct of the type alleged in this case.” A copy of the police report prepared by Officer Jackson was attached to the motion.
The bulk of the police report addressed the officers’ observations regarding Ryals, the individual who sold the cocaine in the undercover drug transaction. The only references to Askari were the aforementioned brief notations that Detective Kanchanamongkol and Officer Ortega observed and recovered the narcotics Askari dropped, and that Officer Paterson recovered a pipe from Askari.
The trial court denied the Pitchess motion, finding defense counsel’s declaration deficient. The trial court explained that the declaration failed to state anything other than, “ ‘I ran.’ There’s no other factual scenario. There’s no reason why he was there. No reason why the people might have picked on him. It’s denied. It’s insufficient.”
b. Applicable legal principles.
On a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer who is accused of misconduct against the defendant. (People v. Gaines (2009) 46 Cal.4th 172, 179.) Evidence Code sections 1043 and 1045 establish a two-step procedure for a criminal defendant’s Pitchess discovery of peace officer records. (People v. Samuels (2005) 36 Cal.4th 96, 109; People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1472-1473; California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9.) “To initiate discovery, the defendant must file a motion supported by affidavits showing ‘good cause for the discovery,’ first by demonstrating the materiality of the information to the pending litigation, and second by ‘stating upon reasonable belief’ that the police agency has the records or information at issue. [Citation.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) If a defendant shows good cause, the trial court examines the material sought in camera to determine whether disclosure should be made and discloses “only that information falling within the statutorily defined standards of relevance.” (Ibid.) The statutory scheme balances the peace officer’s claim to confidentiality and the defendant’s compelling interest in all information pertinent to the defense. (People v. Samuels, supra, at p. 109.)
Warrick v. Superior Court, supra, 35 Cal.4th 1011, clarified the good cause standard. “There is a ‘relatively low threshold’ for establishing the good cause necessary to compel in camera review by the court. [Citations.]” (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) To establish good cause, “defense counsel’s declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges” and articulate how the discovery sought might lead to relevant evidence. (Warrick, at p. 1024.) The defense must present “a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.” (Id. at p. 1025; People v. Thompson, supra, at p. 1316.) “A scenario sufficient to establish a plausible factual foundation ‘is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.’ [Citation.]” (People v. Thompson, supra, at p. 1316.) Depending on the facts of the case, “the denial of facts described in the police report may establish a plausible factual foundation.” (Ibid.; Warrick, at pp. 1024-1025.) A defendant need not establish that it is reasonably probable his version of events actually occurred, provide corroborating evidence, show that his story is persuasive or credible, or establish a motive for the alleged officer misconduct. (Warrick, at pp. 1025-1026.) Discovery is limited to instances of officer misconduct related to the misconduct asserted by the defendant. (Id. at p. 1021.)
Trial courts are vested with broad discretion when ruling on Pitchess motions (People v. Memro (1995) 11 Cal.4th 786, 832), and we review a trial court’s ruling for abuse. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992; People v. Mooc (2001) 26 Cal.4th 1216, 1228; People v. Hughes (2002) 27 Cal.4th 287, 330.)
c. Application here.
(i) The trial court did not abuse its discretion by denying discovery of records related to Officers Jackson, Paterson, and Miller.
As Askari concedes, the trial court did not abuse its discretion by finding an absence of good cause for discovery of the records of Officers Jackson, Paterson, and Miller, as these officers did not claim to have seen Askari drop anything and did not recover the cocaine. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1024-1025; People v. Thompson, supra, 141 Cal.App.4th at p. 1316.) Askari therefore failed to establish good cause for in camera review as to their records.
(ii) The trial court did not abuse its discretion by denying the motion insofar as it sought records unrelated to Askari’s allegation of officer misconduct.
Likewise, as Askari implicitly concedes, his motion failed to establish good cause for materials related to aggressive behavior; attempted or actual violence or excessive force; racial, gender, ethnic, or sexual orientation bias; coercive conduct; violation of constitutional rights; illegal search or seizure; or general information purportedly related to moral turpitude. Askari did not contend the officers engaged in such conduct, nor did Askari’s motion explain how any such conduct would have supported a defense at trial. Records related to these categories of information were therefore irrelevant and not subject to in camera review. “A request for information that is irrelevant to the pending charges does not satisfy the specificity requirement.” (People v. Hill (2005) 131 Cal.App.4th 1089, 1096, fn. 7, overruled on other grounds in People v. French (2008) 43 Cal.4th 36, 48, fn. 5; Warrick v. Superior Court, supra, 35 Cal.4th at p. 1021; People v. Hustead (1999) 74 Cal.App.4th 410, 416.) A “showing of good cause must be based on a discovery request which is tailored to the specific officer misconduct that is alleged.” (California Highway Patrol v. Superior Court, supra, 84 Cal.App.4th at p. 1021.)
(iii) The trial court abused its discretion by denying in camera review of documents related to perjury, planting evidence, or falsifying police reports.
We come to the opposite conclusion in regard to the court’s denial of in camera review of records related to certain types of dishonesty, however. Warrick v. Superior Court, supra, 35 Cal.4th 1011, controls our analysis. In Warrick, the defendant was charged with possession of cocaine for sale and possession of burglary tools. The police report, attributable to three arresting officers, stated that the officers had been patrolling an area known for narcotics activities when they noticed Warrick standing next to a wall, holding a clear plastic baggie containing what appeared to be rock cocaine. When officers exited their patrol vehicle, Warrick fled, tossing the cocaine on the ground. After a short pursuit, officers arrested Warrick. They found an empty baggie in his hand, 42 rocks of cocaine on the ground, and porcelain spark plug chips, a common tool used by auto thieves, in Warrick’s pocket. (Id. at p. 1016.)
Warrick filed a Pitchess motion seeking, inter alia, disclosure of complaints against the three arresting officers for making false arrests, falsifying police reports, or planting evidence. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1017.) In support of the motion, defense counsel averred that Warrick denied possessing or discarding any rock cocaine, but had been in the area to buy cocaine from a seller. Warrick ran because he feared being arrested on an outstanding parole warrant. Meanwhile, people were pushing, kicking, and fighting with each other as they collected rock cocaine from the ground. When one of the officers apprehended him, the officer stated, “ ‘ “You must have thrown this.” ’ ” (Id. at p. 1017.) Warrick hypothesized that the officers, who were unable to determine who threw the cocaine, falsely claimed to have seen Warrick throw the drugs. (Ibid.) The appellate court concluded Warrick had not established good cause. (Id. at p. 1018.)
The Supreme Court disagreed. In rejecting the appellate court’s conclusion, Warrick reasoned that the defendant’s denial that he had possessed or discarded the cocaine, coupled with the assertion that the police had falsely accused him, presented a specific factual scenario. (Warrick v. Superior Court, supra, 35 Cal.4th. at p. 1023.) Good cause did not require a further showing that the factual scenario proposed by the defendant actually occurred (id. at pp. 1023-1024), nor was the defendant required to articulate a motive for the alleged officer misconduct (id. at p. 1025).
Similarly, in Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, the defendant was prosecuted for resisting a peace officer and vandalism of a patrol car. Four officers averred that, while they were attempting to physically subdue a participant in a fight outside a bar, Uybungco approached and cocked his arm backwards, while making a fist, as if he intended to punch one of the officers. When arrested and placed in a patrol car, he hit his head against the window hard enough to knock the glass off its track. Uybungco sought Pitchess review related to, inter alia, any false statements contained in police reports prepared by the officers. In support of his motion, he averred that he had observed another patron fighting with restaurant bouncers, and attempted to break up the fight. Officers arrived and slammed the other patron’s head against the pavement. Uybungco, while holding his shirt in his hand, told the officers to stop. An officer cursed at him and told him to back off. Uybungco denied cocking his arm to strike the officers. He explained that he had tapped the patrol vehicle’s window with his head because, when another individual was placed in the vehicle with him, he was overwhelmed by the smell of pepper spray and was attempting to attract the officers’ attention. He denied resisting, delaying, or obstructing any of the officers or vandalizing the patrol car, and averred that the officers’ contrary statements were lies. (Id. at p. 1047.) The appellate court concluded the trial court had erred by denying the Pitchess motion, reasoning that the matter was indistinguishable from Warrick. (Id. at p. 1050.)
People v. Thompson, supra, 141 Cal.App.4th 1312, reached the opposite conclusion. There, the defendant was convicted of the sale of cocaine base after selling narcotics to an undercover officer. Thompson sought pretrial Pitchess discovery of the records of 11 L.A.P.D. officers who were involved in the operation. The trial court concluded the defendant had failed to establish good cause, a ruling that was upheld on appeal. (Id. at p. 1316.) Thompson recognized that the threshold for Pitchess discovery was low, and that under some circumstances the mere denial of facts described in a police report is sufficient to establish a plausible factual foundation. (Ibid.) However, in Thompson’s case, defense counsel’s declaration simply stated that the officers never recovered “buy money” from the defendant, who never offered to sell drugs to the undercover officer; averred that officers saw the defendant and arrested him because he was in an area where they were doing arrests; and, upon discovering his criminal history, planted drugs on him. Thompson held: “This showing is insufficient because it is not internally consistent or complete. We do not reject Thompson’s explanation because it lacked credibility, but because it does not present a factual account of the scope of the alleged police misconduct, and does not explain his own actions in a manner that adequately supports his defense. Thompson, through counsel, denied he was in possession of cocaine or received $10 from [the undercover officer]. But he does not state a nonculpable explanation for his presence in an area where drugs were being sold, sufficiently present a factual basis for being singled out by the police, or assert any ‘mishandling of the situation’ prior to his detention and arrest. Counsel’s declaration simply denied the elements of the offense charged.” (People v. Thompson, supra, 141 Cal.App.4th. at p. 1317.) The court elucidated: “Thompson is not asserting that officers planted evidence and falsified a police report. He is asserting that, because he was standing at a particular location, 11 police officers conspired to plant narcotics and recorded money in his possession, and to fabricate virtually all the events preceding and following his arrest.” (Id. at p. 1318.)
The instant matter is closer to Warrick and Uybungco than to Thompson. Indeed, the facts here parallel those in Warrick. Like Warrick, Askari was in an area known for narcotics transactions, fled upon seeing police, and allegedly dropped rock cocaine on the ground. Askari’s Pitchess motion averred that, in contradiction to the police report, he did not possess rock cocaine or a substance resembling rock cocaine, did not throw anything, and did not make a throwing motion. These allegations demonstrated that his defense would be that he did not possess the cocaine. (See People v. Hustead, supra, 74 Cal.App.4th at p. 417.)
Askari’s motion additionally provided a rudimentary alternative version of events that was “plausible, if not entirely convincing.” (People v. Thompson, supra, 141 Cal.App.4that p. 1318.) As in Warrick, Askari accounted for his behavior, explaining that he ran due to fear, because he had drug paraphernalia in his possession. Unlike in Thompson, where the defendant offered no reason for police to have singled him out, here Askari’s acknowledgment that he ran from the scene accounted for the officers’ attention to him. Especially given the paucity of information in the police report relating to Askari – nothing more than two duplicate notations that officers “observed and recovered narcotics” dropped or tossed by Askari, as well as the pipe – counsel’s averments in support of the motion set forth an internally consistent, plausible, and sufficiently specific factual scenario. Whether that scenario inspired belief is not relevant to the determination of whether an in camera review is required. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1026.)
On the other hand, unlike in Warrick and Uybungco, Askari did not provide an explanation for why he was in the area. Further, we note that unlike in the other cases discussed ante, Askari’s counsel’s declaration did not explicitly aver that the officers were lying or had fabricated facts. Nonetheless, we conclude these distinctions do not compel a conclusion that the motion was deficient. On the facts presented here, the clear implication of Askari’s denial that he possessed and tossed the cocaine was that the officers’ contrary statements were false. “By denying the factual assertions made in the police report – that he possessed and discarded the cocaine – defendant established ‘a reasonable inference that the [reporting] officer may not have been truthful.’ [Citation.]” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1023.)During argument on the motion, trial counsel urged that in People v. Hustead, supra, 74 Cal.App.4th 410, the defendant established “a reasonable inference that the reporting officer might not have been truthful,” and “that is almost exactly what the situation is here.” As noted, our Supreme Court has repeatedly stated that under some circumstances, “a simple denial of accusations in the police report” may suffice to establish good cause. (Garcia v. Superior Court (2007)42 Cal.4th 63, 72; Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1024-1025.)
In sum, the trial court properly found a lack of good cause for in camera review of the records of Officers Jackson, Paterson, and Miller. The trial court was likewise correct that Askari did not establish good cause for review of records relating to complaints of aggressive behavior, attempted or actual violence or excessive force, racial, gender, ethnic, or sexual orientation bias, coercive conduct, violation of constitutional rights, illegal search or seizure, or general information related to moral turpitude. However, Askari’s motion established good cause for in camera review of information in Detective Kanchanamongkol’s and Officer Ortega’s records for information relating to falsified police reports, planted evidence, or perjury. (See generally Chambers v. Superior Court (2007) 42 Cal.4th 673, 678-680.)
(iv) Remedy.
Our Supreme Court has recently confirmed that a trial court’s erroneous denial of a defendant’s Pitchess motion is not reversible error per se. (People v. Gaines, supra, 46 Cal.4th at p. 176.) Instead, “the failure to disclose relevant information in confidential personnel files, like other discovery errors, is reversible only if there is a reasonable probability of a different result had the information been disclosed.” (Ibid.) The proper remedy is to conditionally reverse the judgment and remand the matter for an in camera review of the relevant records. (People v. Gaines, supra, at pp. 180-181.) If no relevant information is contained in the officers’ records, the trial court is to reinstate the judgment and sentence. (Id. at p. 181; People v. Hustead, supra, 74 Cal.App.4th at p. 419; People v. Johnson (2004) 118 Cal.App.4th 292, 304-305.) If the trial court determines that relevant discoverable information exists, it must order disclosure, allow Askari an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. (People v. Gaines, supra, at pp. 181, 182; People v. Hustead, supra, at p. 419.) If Askari is unable to show prejudice, the trial court is to reinstate the judgment and sentence. (People v. Gaines, supra, at p. 182; People v. Hustead, supra, at p. 422; People v. Johnson, supra, at p. 305.) We therefore remand the case to the trial court for an in camera review of the relevant records.
2. The prior prison term enhancement was properly imposed.
Askari next contends that we should reverse the trial court’s true finding on the section 667.5, subdivision (b) allegation and vacate the resultant one-year enhancement because the People did not prove he served a separate term in state prison, and he did not admit this element when he admitted “the bare fact of the conviction itself.” We disagree.
The information alleged that Askari had suffered seven prior convictions pursuant to section 667.5, subdivision (b). At sentencing, defense counsel pointed out that one of the prior convictions would not support a section 667.5, subdivision (b) enhancement because Askari had not served a separate prison term for the offense; accordingly, Askari admitted only one of the two convictions in question. Askari admitted the remaining five convictions. The trial court ultimately imposed only one section 667.5, subdivision (b) enhancement.
At a subsequent proceeding to correct the record, the court struck five of the remaining enhancement allegations in furtherance of justice (§ 1385).
“Imposition of a sentence enhancement under Penal Code section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]” (People v. Tenner (1993) 6 Cal.4th 559, 563.) The enhancement may not be imposed for any prior felony for which the defendant did not serve a prior separate prison term. (§ 667.5, subd. (e).) “Due process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt.” (People v. Tenner, supra, at p. 566.)
The statute defines “prior separate prison term” as “a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.” (§ 667.5, subd. (g).)
In general, a defendant’s guilty plea or admission of a sentence enhancement allegation is deemed to constitute a judicial admission of every element of the offense charged. (People v. Bowie (1992) 11 Cal.App.4th 1263, 1266.) A defendant who admits a charge of a prior conviction is held to have admitted as great a charge as is contained in the information. (People v. Welge (1980) 101 Cal.App.3d 616, 623.) When an information specifically alleges the elements of section 667.5, subdivision (b), a defendant’s admission of the prior conviction provides an adequate basis for imposition of the enhancement. (People v. Cardenas (1987) 192 Cal.App.3d 51, 61 [“Generally, an admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served”]; People v. Welge, supra, at pp. 623-624; People v. Ebner (1966) 64 Cal.2d 297, 303 [“Defendant’s admission of the prior convictions is not limited in scope to the fact of the convictions but extends to all allegations concerning the felonies contained in the information”].)
Here, the information alleged that Askari had suffered seven prior convictions “pursuant to Penal Code section 667.5(b),” and that “a term was served as described in Penal Code section 667.5 for said offense(s), and that the defendant did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term.” The information did not expressly state Askari had served a separate term for each conviction. However, the information did allege that he had served a term “as described in Penal Code section 667.5.” Section 667.5, subdivision (b), which provides for the one-year enhancement at issue here, states: “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.” (Italics added.) Section 667.5, subdivision (e) states: “The additional penalties provided for prior prison terms shall not be imposed for any felony for which the defendant did not serve a prior separate term in state prison.”
Askari points to People v. Epperson (1985) 168 Cal.App.3d 856 and People v. Lopez (1985) 163 Cal.App.3d 946, in support of his argument that the admission was deficient in the absence of an express reference to separate prison terms in the information. In Epperson, the defendant admitted his prior convictions, but did not explicitly admit the separate prison term element or the “nonexistence of the five-year ‘washout’ period.” (People v. Epperson, supra, at p. 864.) The court concluded the admissions could not be construed “as including admissions of all the necessary elements of the enhancements alleged under... section 667.5, subdivision (b).” (Id. at pp. 864-865.) Further, the People conceded at oral argument that, in fact, Epperson had not reoffended within the five-year period, and striking the enhancement was therefore proper. (Id. at p. 865.)
In Lopez, the court likewise found the defendant’s admission that he had suffered prior convictions was not tantamount to an admission that he had served separate prison terms. (People v. Lopez, supra, 163 Cal.App.3d at p. 951.) The court explained, “although defendant admitted that the prior convictions were valid, he was not asked to and did not admit that he served a separate prison term for either of those prior convictions, and no evidence was introduced to so establish.” (Ibid.) He was not advised that by admitting the prior conviction, he was also admitting service of separate prison terms. “Thus, his admission that the prior convictions were valid cannot be construed as an admission of the allegations that he served prior, separate prison terms for each of those convictions,” and the enhancement allegations were properly dismissed. (Ibid.)
We are not entirely convinced that the shorthand reference to the separate prison term requirement contained in the information here was insufficient to put Askari on notice of what he was admitting. But even assuming the information was insufficient, and that Lopez and Epperson correctly state the law, reversal of the one-year enhancement is unwarranted. As noted ante, before Askari admitted the prior conviction allegations, his counsel stated, “I just have one issue where I believe one of the priors is not valid because he was sentenced concurrently on two different cases to one prison term.” When Askari was asked to admit one of those priors, he stated, “I don’t recall that one.” He conferred with defense counsel, who explained: “That’s the one where he was confused, Your Honor, because on those two cases just mentioned he was sentenced to one prison term.... [Y]ou can see that in his rap sheet. And the D.A. agrees on that. So that’s what the confusion is because it was like put together as one case.” This colloquy demonstrates that Askari was well aware the separate prison term requirement was included in his admission to the convictions.
In an analogous context, our Supreme Court has held that the determination of whether an admission of a prior conviction is voluntary and intelligent turns on an examination of the totality of the circumstances. People v. Mosby (2004) 33 Cal.4th 353, reiterated that before accepting a defendant’s admission of a prior felony conviction, a trial court must inform the defendant of three key constitutional rights, i.e., his privilege against self-incrimination, the right to a jury trial, and his right to confront witnesses. (Id. at pp. 359-360.) However, Mosby held that the failure to fully advise a defendant of each right does not necessarily mean the admission is involuntary. “[I]f the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of ‘the entire proceeding’ to assess whether the defendant’s admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances. [Citation.]” (Id.at p. 361.) In Mosby, the totality of the circumstances established a voluntary and intelligent admission of the prior conviction, despite the trial court’s failure to advise Mosby of his rights to confrontation and against self-incrimination. (Id. at p. 365.) Mosby had admitted the prior conviction immediately after a jury found him guilty of the substantive offense. He had not testified, and therefore was not only aware of, but had just exercised, his right against self-incrimination. (Id. at p. 364.) Because he had, through counsel, confronted witnesses at the immediately concluded trial, he would have understood that at a trial he had the right of confrontation. (Ibid.) Further, Mosby concluded that a defendant’s prior experience with the criminal justice system is relevant to the question of whether he or she knowingly waived constitutional rights. (Id. at p. 365.)
Similarly, whether Askari admitted all elements of the prior prison term allegation must turn on the totality of the circumstances. As we have explained, the information explicitly alleged the five-year element and referenced service of a prison term, “as described in Penal Code section 667.5.” In our view, the contents of the information, coupled with the parties’ discussion regarding prison terms referenced ante, establish that Askari was cognizant of the section 667.5 elements and knowingly admitted serving a separate prior prison term when he admitted the convictions.
Askari’s citations to Blakely v. Washington (2004) 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466 are inapposite. Apprendi and its progeny establish that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, or admitted by the defendant. (Apprendi v. New Jersey, supra, at p. 490; Blakely v. Washington, supra, at p. 303.) As we have explained, Askari admitted the prior conviction allegation, and thus Apprendi is not implicated. Moreover, our Supreme Court recently held in People v. Towne (2008) 44 Cal.4th 63, that Apprendi does not apply to facts related to a defendant’s recidivism, including service of a prior prison term. (Id. at pp. 77-78.) Thus, Apprendi has no application here.
DISPOSITION
The judgment is reversed with directions to the trial court to conduct an in camera inspection consistent with the opinions expressed herein. If the trial court’s inspection on remand reveals no discoverable information, the trial court must reinstate the original judgment and sentence. If the inspection reveals discoverable information, the trial court shall order disclosure of the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct, i.e., falsifying police reports, planting evidence, or perjury; allow appellant an opportunity to demonstrate prejudice; and order a new trial if there is a reasonable probability the outcome would have been different if the information had been disclosed. If appellant is unable to demonstrate prejudice, the judgment and sentence must be reinstated.
We concur: KLEIN, P. J., KITCHING, J.