Opinion
F074588
08-22-2018
THE PEOPLE, Plaintiff and Respondent, v. JACQUES BOLIBAUGH, Defendant and Appellant.
Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. BF163615A & BF164300A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey and Thomas S. Clark, Judges. Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J., and Meehan, J.
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INTRODUCTION
This appeal follows sentencing in three separate criminal cases against defendant Jacques Bolibaugh. The first case arose from the Bakersfield police department's placement of defendant's apartment under surveillance for drug activity in March 2016. Defendant was arrested and charged with furnishing methamphetamine (Health & Saf. Code, § 11379; count 1) and maintaining a place for unlawfully furnishing or using a controlled substance (Health & Saf. Code, § 11366; count 2). After defendant was released from custody on bail in April 2016, he failed to appear for his arraignment and a bench warrant was issued for his arrest. Defendant was subsequently charged with failure to appear (Pen. Code, § 1320.5), with a sentence enhancement allegation for committing a felony while out on bail (§ 12022.1). Finally, in connection with his attempt to cash a stolen check in May 2016, defendant was charged in a third case with forgery (§ 470, subd. (d); count 1) and identity theft (§ 530.5, subd. (a); count 2), with the on-bail enhancement allegation attached to each count.
A statement of the facts underlying each of the offenses is unnecessary to resolution of the issues raised on appeal, and therefore, we include only those facts directly relevant to our decision or necessary for clarity.
All further statutory references are to the Penal Code unless otherwise stated.
In the first case, No. BF163615A, count 2 (maintaining a place for unlawfully furnishing or using a controlled substance) was dismissed for lack of sufficient evidence following the preliminary hearing. (§ 871.) Defendant was thereafter convicted by jury of count 1 (furnishing methamphetamine). In the second case, No. BF164187A, defendant pleaded no contest to failing to appear and admitted the on-bail enhancement. In the third case, No. BF164300A, defendant pleaded no contest to the forgery and identity theft counts and admitted the two on-bail enhancements.
In the first case, the trial court sentenced defendant to the middle term of two years in county jail. (§ 1170, subd. (h)(1); Health & Saf. Code, § 11379, subd. (a).) In the second case, the court imposed a consecutive term of eight months (one-third of the middle term) for the failure to appear, plus an additional two years for the on-bail enhancement, for a total determinate term of four years and eight months. (§§ 1170.1, subd. (a), 1320.5.) In the third case, the trial court imposed the middle term of two years on count 1 (forgery), to run concurrently with the sentence imposed in defendant's other two cases, and the middle term of two years on count 2 (identity theft), to run concurrently with the sentence imposed on count 1. (§§ 473, subd. (a), 530.5, subd. (c)(2).)
The probation report described the term of two years as the lower term in error and the trial court repeated the error during the sentencing hearing. Review of the related plea form and hearing transcripts, however, evince the indicated sentence was the middle term of two years.
Defendant raises three issues on appeal. Regarding the first case involving the drug offense, he requests we conduct an independent review of the trial court's determination that Officer Zachary Burdick's personnel file contained no discoverable information. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) Regarding the third case involving the forgery and identity theft offenses, he claims the trial court erred under section 654 when it failed to stay his sentence on count 2 (identity theft) and when it failed to impose and stay the on-bail enhancements.
The People do not oppose our independent review of the Pitchess proceedings, and they agree the trial court erred in failing to stay defendant's sentence on count 2 under section 654 and in failing to impose sentence on the on-bail enhancements.
Following independent review of the Pitchess motion proceedings and Officer Burdick's personnel file, we conclude the trial court followed the proper procedures but erred in withholding one misconduct complaint. We therefore conditionally reverse the judgment in case No. BF163615A and remand for further proceedings consistent with this opinion. With respect to case No. BF164300A, the trial court was required under section 654 to impose the full middle term on count 2 (identity theft) and stay the sentence, and we modify the judgment accordingly. However, we find no error with the trial court's imposition of only one on-bail enhancement to defendant's aggregate sentence and we reject the parties' contrary positions. Except as modified, the judgment in case No. BF164300A is affirmed.
DISCUSSION
I. Independent Review of Pitchess Proceedings
A. Background
With respect to defendant's first case arising from his arrest for drug offenses, defendant filed a motion seeking discovery of Officer Burdick's personnel records under Evidence Code section 1043. The prosecutor opposed the motion. The trial court conducted an in camera review of Officer Burdick's personnel records and determined there was no information subject to disclosure. Defendant requests we conduct an independent review of the Pitchess proceedings to ensure that the trial court complied with the procedural requirements set forth in People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229 (Mooc), and that it did not abuse its discretion in refusing to disclose any information from Burdick's personnel file. The People do not oppose this request.
B. Legal Standard
The procedure for obtaining discoverable information from law enforcement personnel files is well established. Pursuant to Evidence Code section 1043, subdivision (b), "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 accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both '"materiality" to the subject matter of the pending litigation and a "reasonable belief that the agency has the type of information sought.' [Citation.] A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.] If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], 'the trial court should then disclose to the defendant "such information [that] is relevant to the subject matter involved in the pending litigation."'" (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines).)
On appeal, a defendant may request we conduct an independent review of the proceedings and the trial court's determination regarding the presence or absence of discoverable information. (People v. Townsel (2016) 63 Cal.4th 25, 68-69; People v. Yearwood (2013) 213 Cal.App.4th 161, 179-180.) "A trial court is afforded wide discretion in ruling on a motion for access to law enforcement personnel records. The decision will be reversed only on a showing of abuse of discretion." (People v. Yearwood, supra, at p. 180, citing People v. Hughes (2002) 27 Cal.4th 287, 330.)
C. Analysis
We have conducted an independent review both of the in camera proceedings and of Officer Burdick's sealed personnel file. We find the trial court complied with the proper procedural requirements set forth in Mooc, supra, 26 Cal.4th at pages 1228-1230, and, with one exception, our review of the file reveals no relevant documents or information. The trial court identified several citizen's complaints filed against Officer Burdick but after reviewing them, determined they did not contain any discoverable information. We agree and find no abuse of discretion in denying disclosure, with the exception of one complaint alleging false arrest.
The process is effectuated by having a custodian of records collect all potentially relevant documents from identified personnel files and present them to the trial court. The custodian "should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion." (Mooc, supra, 26 Cal.4th at p. 1229.)
In this case, the Bakersfield police department placed two apartments in the same building under surveillance for drug activity. Officers subsequently searched the apartments and an officer located a packet of methamphetamine in the pants pocket of a third party. The drug-furnishing charge against defendant was based on his alleged statement to Officer Burdick that he provided the third party with the packet of drugs.
Officer Burdick interviewed defendant and wrote the police report. In his discovery motion, defendant sought the names, addresses, and telephone numbers of persons who filed with the Bakersfield police department "complaints of: (1) false statements in police reports, (2) fabrication of witness testimony in reports, (3) false testimony, (4) falsification of probable cause and/or reasonable suspicion, (5) acts involving moral turpitude, and (6) any other evidence of or complaints of dishonesty by Officer Zachary Burdick ...." (Boldface omitted.) The motion was supported by a declaration in which defense counsel attested to the following version of events by Officer Burdick:
"a. [Defendant] stated that he provides methamphetamine to his friends when they come over.
"b. [Defendant] further stated that he allows his friends to utilize his narcotics paraphernalia to ingest the methamphetamine he provides.
"c. When asked if he provided Mr. Weston with any methamphetamine, [defendant] said yes.
"d. [Defendant] stated that he did not charge Mr. Weston for the methamphetamine."
Defendant denied making these statements.
In March 2016, a complaint was filed with the Bakersfield police department concerning an arrest that occurred in February 2016. In relevant part, the complainant disputed the circumstances of his arrest as reported by Officer Burdick and the other officer, and he alleged the arrest lacked any basis under the law. It is not clear from the record why the trial court deemed this complaint not subject to disclosure, but we note that "'the good cause requirement embodies a "relatively low threshold" for discovery' [citation], under which a defendant need demonstrate only 'a logical link between the defense proposed and the pending charge' and describe with some specificity 'how the discovery being sought would support such a defense or how it would impeach the officer's version of events.'" (Gaines, supra, 46 Cal.4th at p. 182.) "[A] defendant is entitled to discover relevant information under Pitchess even in the absence of any judicial determination that the potential defense is credible or persuasive." (Ibid.)
Given that the complainant challenged the veracity of the officers' version of events underlying his arrest, we conclude the trial court erred in failing to order the disclosure of the name, address, and telephone number of the complainant who filed complaint No. CC2016-011. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1027-1028.) Therefore, defendant is entitled to conditional reversal and remand for further proceedings. (Gaines, supra, 46 Cal.4th at p. 181; People v. Fernandez (2012) 208 Cal.App.4th 100, 123.) If, after disclosure of this information, defendant elects to move for a new trial, he will be required to demonstrate a reasonable probability the outcome would have been different had the information been disclosed. (Gaines, supra, at pp. 182-183.)
We reject defendant's contention that, at this stage, he is entitled to reversal of his conviction and a new trial. It is well settled that where the trial court erroneously denies discovery, the defendant bears the burden of demonstrating prejudice. (Gaines, supra, 46 Cal.4th at p. 181.)
II. Sentencing Errors in Case No. BF164300A
A. Failure to Stay Identity Theft Count under Section 654
Defendant's convictions for forgery and identity theft arise out of his attempt to cash a single forged check provided to him by his roommate, who was not the account holder. With respect to his sentence on count 2 for identify theft, defendant contends the trial court erred in imposing a concurrent eight-month sentence rather than staying the sentence under section 654, which bars multiple punishment for the same act or omission. (People v. Corpening (2016) 2 Cal.5th 307, 311.) The People concede the error.
As defendant was convicted of the charges by plea, the underlying factual basis is taken from the preliminary hearing transcript.
Defendant did not object in the trial court but because a sentence imposed in error under section 654 is unauthorized, it may be raised on appeal even in the absence of an objection. (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1004, fn. 2.)
As the parties agree, it is error for a trial court to impose a concurrent sentence if section 654 applies. (People v. Jones (2012) 54 Cal.4th 350, 353.) The proper procedure is to impose a sentence but stay its execution, despite little practical difference between a concurrent sentence and a stayed sentence. (Ibid.)
Determining "[w]hether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single '"intent and objective"' or multiple intents and objectives." (People v. Corpening, supra, 2 Cal.5th at p. 311.)
On appeal, "[a] trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld ... if supported by substantial evidence" (People v. Brents (2012) 53 Cal.4th 599, 618), that is, evidence which is reasonable, credible and of solid value (People v. Armstrong (2016) 1 Cal.5th 432, 450). When, as here, there is no "explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it." (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045, citing People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.)
Defendant's crimes of forgery and identity theft stemmed from his single entry into the bank to cash one forged check. The People's concession that the offenses were part of a single, indivisible transaction and the trial court erred in failing to stay the sentence for identity theft under section 654 is well founded and we accept it. (People v. Casica (2014) 223 Cal.App.4th 320, 324 [burglary and subsequent forgery of checks part of same indivisible transaction]; People v. Conners (2008) 168 Cal.App.4th 443, 458 [money laundering and receiving stolen property part of same indivisible transaction]; People v. Curtin (1994) 22 Cal.App.4th 528, 532 [burglary and subsequent forgery of checks part of same indivisible transaction].) In addition, although not raised by the parties, "'[t]he one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not to a sentence stayed under section 654'" (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198, quoting People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164), and "[t]o effectuate section 654, the trial court must impose a full term and stay execution of that term" (Relkin, at p. 1198, citing People v. Alford (2010) 180 Cal.App.4th 1463). Accordingly, we exercise our inherent authority to modify the judgment to impose and stay under section 654 the full middle term of two years on count 2. (§ 1260; People v. Relkin, supra, at p. 1198; People v. Alford, supra, at p. 1473.)
B. Section 12022.1 On-Bail Enhancements
Finally, the parties agree that the trial court erred in failing to impose the two on-bail enhancements admitted in case No. BF164300A. Defendant takes the position that the trial court should have imposed all three on-bail enhancements he admitted and then stayed two of them under section 654. While the People do not specifically address the applicability of section 654 to the enhancement, they agree that the trial court should have imposed sentence as to all three on-bail enhancements and erred in failing to do so with respect to the two enhancements admitted by defendant in case No. BF164300A. Defendant seeks either remand so the trial court can address the enhancements in that case or modification on appeal. The People state the matter should be remanded so that the trial court may pronounce sentence as to the enhancements.
Neither party cites any authority directly supporting their respective positions and for the reasons that follow, we are not persuaded the trial court erred.
The on-bail enhancement under section 12022.1 goes to the nature of the offender and is added only once to the aggregate sentence. (People v. Augborne (2002) 104 Cal.App.4th 362, 377; accord, People v. McNeely (1994) 28 Cal.App.4th 739, 743; People v. Mackabee, supra, 214 Cal.App.3d at pp. 1261-1262; People v. Warinner, supra, 200 Cal.App.3d at p. 1356; see People v. Williams (2004) 34 Cal.4th 397, 402.) Moreover, section 654 does not apply in this context. (People v. Walker (2002) 29 Cal.4th 577, 589; People v. Warinner, supra, at p. 1355.) As the California Supreme Court has explained, "a section 12022.1 enhancement turns on the status of a defendant as a repeat offender, not on what the defendant did when committing the current crime, i.e., the secondary offense. [Citations.] Because a section 12022.1 enhancement does not punish a defendant for his or her conduct while committing an offense (here, willfully failing to appear in court as required in violation of section 1320.5), but rather punishes the defendant for his or her status as a repeat offender while on bail, the enhancement does not constitute punishment of an act or omission within the meaning of section 654." (People v. Walker, supra, 29 Cal.4th at p. 589.)
Multiple enhancements may be imposed where the defendant commits multiple secondary offenses while on release from custody in more than one primary case. (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1261-1262; People v. Warinner (1988) 200 Cal.App.3d 1352, 1355-1356.) Here, however, defendant committed the secondary offenses while on bail in only one primary case.
Although defendant committed three secondary offenses, he did so while out on bail on only one primary case. The trial court therefore properly imposed only one enhancement on the aggregate sentence and we reject the parties' claim of error. (People v. Walker, supra, 29 Cal.4th at p. 589; People v. Augborne, supra, 104 Cal.App.4th at p. 377.)
DISPOSITION
In case No. BF163615A, the judgment is conditionally reversed with directions to the trial court to (1) order disclosure of the complainant's name, address, and telephone number in complaint No. CC-2016-011 and (2) allow defendant a reasonable opportunity to investigate the newly disclosed information and determine whether it would have led to any relevant and admissible evidence he could have presented at trial. If defendant can demonstrate he was prejudiced by the denial of this discovery, the trial court must order a new trial. If defendant cannot demonstrate prejudice as a result of the denial of discovery, the judgment is to be reinstated.
In case No. BF164300A, the judgment is modified to reflect the imposition of the middle term of two years for identity theft (count 2), stayed under section 654. The trial court shall amend its records to reflect this modification. Judgment in case No. BF164300A is otherwise affirmed.