Opinion
F075766
08-10-2018
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN ANGEL CHACON, Defendant and Appellant.
Thomas Owen, 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, Darren K. Indermill and Paul E. O'Connor, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. BF166825A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge. Thomas Owen, 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, Darren K. Indermill and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
-ooOoo-
A jury convicted appellant Jonathan Angel Chacon of evading a peace officer (Veh. Code, § 2800.2/count 1), a felony, and resisting arrest (Pen. Code, § 148, subd. (a)(1)/count 2). In a separate proceeding, the court found true two prior prison term enhancements (§ 667.5, subd. (b)) and allegations that Chacon had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).
All statutory references are to the Penal Code unless otherwise noted.
On May 31, 2017, the court sentenced Chacon to an aggregate prison term of eight years, a doubled upper term of six years on count 1, 2 one-year prior prison term enhancements, and a concurrent 180 days on count 2.
On appeal, Chacon contends the court violated section 654 when it imposed a concurrent term on count 2. Chacon also asks this court to conduct an independent review of the in camera hearing the court conducted on his Pitchess motion. We find merit to Chacon's contention and modify the judgment accordingly. We have also conducted the requested review.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTS
On January 10, 2017, at approximately 4:20 a.m., Kern County Sheriff's Deputy Robert Batchar was on patrol on Potomac Avenue in Bakersfield. At Collins Way, Batchar turned north and saw a man, whom he identified in court as Chacon, in the driver's seat of an Infiniti car that was parked facing south on the west side of the street. As the headlights of Batchar's car illuminated the interior of the Infiniti, Chacon rose in the seat quickly. Right before his patrol car was parallel to the Infiniti, Batchar shone a handheld spotlight into the car as he drove slowly past it. Batchar made a U-turn and as he got behind the Infiniti, it began moving south. Batchar followed the Infiniti and turned on his red and blue overhead lights to initiate a traffic stop because the Infiniti did not have a proper license plate. When the Infiniti began speeding up, Batchar turned on his siren.
During an ensuing chase, Chacon drove 50 miles per hour in 25-mile-per-hour zones and 90 miles per hour in a 45-mile-per-hour zone. He also ran several stop signs and a red light. Batchar eventually lost sight of the Infiniti. However, over the patrol car's radio, he was directed to a location on Cheatham Avenue where the Infiniti was parked in a driveway. Batchar felt the hood of the Infiniti, which was warm, and contacted two residents of the house. During a consent search of the house, Batchar found Chacon hiding in a bathroom and arrested him.
DISCUSSION
The Section 654 Issue
Chacon contends that his resisting arrest conviction was based on the same acts as his evading a peace officer conviction. Thus, according to Chacon, section 654 required the court to stay the term it imposed on his resisting arrest conviction. Respondent concedes.
"Section 654, subdivision (a), provides in pertinent part: 'An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.' Section 654 bars multiple punishment for separate offenses arising out of a single occurrence when all of the offenses were incident to one objective. [Citation.] Whether section 654 applies is a question of fact for the trial court, and its finding will be upheld if there is substantial evidence to support the finding." (People v. Buchanan (2016) 248 Cal.App.4th 603, 611.) "Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment. [Citations.] For this reason, the imposition of concurrent terms is treated as an implied finding that the defendant bore multiple intents or objectives, that is, as a rejection of the applicability of section 654." (People v. Alford (2010) 180 Cal.App.4th 1463, 1468.)
Section 148, subdivision (a) makes it unlawful to resist, delay, or obstruct a peace officer in the discharge of his or her duties. (§ 148, subd. (a).) Although Chacon delayed Batchar when he hid in the bathroom where he was arrested, it is clear from the following circumstances that the jury convicted him on both counts based on his conduct in evading Batchar before Chacon parked the car at the Cheatham address. During a discussion on jury instructions, when the court asked the prosecutor if he was "relying on the act of evading that's alleged also as the basis for the 148[,]" the prosecutor responded that he was. Subsequently, the court instructed the jury that the People had to prove that Chacon resisted Batchar and that the People alleged, "[Chacon] resisted, obstructed, or delayed Robert Batchar by doing the following: failing to yield for or evading a peace officer." Further, during closing arguments, the prosecutor argued that count 2 was based on the same conduct as count 1. Chacon's convictions were based on the same evasive conduct. Thus, we agree with the parties that the court erred by its failure to stay the term it imposed on count 2.
The Pitchess Motion
On February 10, 2017, Chacon filed a Pitchess motion in the trial court seeking discovery of any evidence or complaints of: "(1) false statements in reports, (2) fabrication of witness testimony in reports, (3) false testimony, (4) falsification of probable cause, (5) acts involving moral turpitude, and (6) any other evidence ... or complaints of dishonesty by Deputy Robert Batchar."
On March 15, 2017, the court granted the motion with respect to evidence of dishonesty and it conducted an in camera review of documents that were provided by the Kern County Sheriff's Department pursuant to the motion. The court did not find any discoverable records.
" 'A criminal defendant has a limited right to discovery of a peace officer's personnel records. [Citation.] Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045.' " (People v. Yearwood (2013) 213 Cal.App.4th 161, 180; see People v. Mooc (2001) 26 Cal.4th 1216, 1220 (Mooc) [California Legislature codified Pitchess motions].) "[O]n 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." (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines), citing Evid. Code, § 1043, subd. (b).) "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.' " (Gaines, supra, at p. 179.)
"If the trial court concludes the defendant has ... made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion" (Mooc, supra, 26 Cal.4th at p. 1226) and "the court must review the requested records in camera to determine what information, if any, should be disclosed" (Gaines, supra, 46 Cal.4th at p. 179). "Subject to statutory exceptions and limitations ... the trial court should then disclose to the defendant 'such information [that] is relevant to the subject matter involved in the pending litigation.' " (Mooc, supra, at p. 1226, quoting Evid. Code, § 1045, subd. (a).) "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.)
We have reviewed the transcripts, files, and statements relevant to this issue. The trial court complied with the required Pitchess procedures. A custodian of records was present and placed under oath. The custodian testified he found and provided responsive documents. The court independently reviewed the relevant portion of the personnel file, which had been provided. Upon review of the records, the court noted that the documents did not contain any discoverable information. The proceedings were stenographically recorded. (Mooc, supra, 26 Cal.4th at p. 1229.) We reviewed the records the trial viewed and conclude the court did not abuse its discretion by deciding not to disclose any records.
DISPOSITION
The judgment is modified to stay the term imposed on count 2. The trial court is directed to correct its paperwork accordingly and to notify the appropriate authorities. As modified, the judgment is affirmed.