Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. NA059703 Thomson T. Ong, Judge.
Law Offices of Pritz Associates and Danalynn Pritz for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Kavron Christopher Clark was convicted by a jury of felon in possession of a firearm in violation of Penal Code section 12021, subdivision (a)(1). The trial court found defendant suffered one prior strike conviction within the meaning of the three strikes law, sections 1170.12, subdivisions (a)-(d) and 667, subdivisions (b)-(i), and served two prior prison terms within the meaning of 667.5, subdivision (b). Defendant was sentenced to state prison for eight years, consisting of the upper term of three years doubled pursuant to the three strikes law, plus one year for each prior prison term.
All further statutory references will be to the Penal Code, unless otherwise indicated.
Defendant appealed from the judgment. He contended: (1) it was an abuse of discretion to admit gang evidence; (2) the evidence of the corpus delicti was insufficient; (3) the trial court erred in failing to give CALJIC No. 2.80 sua sponte on the evaluation of expert testimony; (4) the trial court committed judicial misconduct; (5) denial of defendant’s motion to continue the trial was an abuse of discretion; (6) it was an abuse of discretion to deny defendant’s motion under People v. Marsden (1970) 2 Cal.3d 118; (7) cumulative error requires reversal; (8) one prior prison term finding is not supported by substantial evidence; (9) defendant was entitled to a jury determination on the issue of imposing an upper term sentence; (10) it was an abuse of discretion to deny defendant’s motion to dismiss defendant’s strike prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497; and (11) this court should review the sealed police report to determine if there was error under Brady v. Maryland (1963) 373 U.S. 83.
In our original unpublished opinion, we struck one prior prison term enhancement pursuant to section 667.5, subdivision (b), reduced defendant’s total sentence to seven years in state prison, and reduced the restitution and parole revocation fines each by $200. In all other respects, the judgment was affirmed. (People v. Clark (Jan. 19, 2006, B176270) [nonpub. opn.].)
The California Supreme Court denied defendant’s petition for review “without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determines Cunningham v. California [(2007) 549 U.S. ___, ___ [127 S.Ct. 856] (Cunningham)], the effect of Blakely v. Washington (2004) 542 U.S. 296 [(Blakely)] and United States v. Booker (2005) 543 U.S. 220, on California law.” (People v. Clark (Apr. 26, 2006, S141498) __ Cal.4th __ [2007 Cal. LEXIS 5200.)
On February 20, 2007, after granting defendant’s petition for writ of certiorari, the United States Supreme Court vacated the judgment and remanded the case to us for further consideration in light of Cunningham, supra, 549 U.S. at page __ [127 S.Ct. 856]. (Clark v. California (2007) 127 S.Ct. 1241.) We requested and received supplemental letter briefs from the parties on the effect, if any, of the resolution of the Cunningham issues by People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) on defendant’s sentence. In the supplemental letter brief, defendant contends that reliance on recidivism as justification for imposing the upper term, and denying a jury trial on other aggravating factors, violates defendant’s right to a jury trial. He argues that Black II was wrongly decided.
Although for a different reason than that contained in our January 19, 2006 opinion, we again conclude that the imposition of the upper term sentence did not violate defendant’s right to a jury trial. Accordingly, we modify the sentence by striking one prior prison term enhancement pursuant to section 667.5, subdivision (b), reducing defendant’s total sentence to seven years in state prison, and reducing the restitution and parole revocation fines by $200 each. As modified, we affirm the judgment.
Except for the discussion of the constitutionality of the imposition of the upper term, the opinion we now file is substantially the same as the non published opinion we filed on January 19, 2006.
FACTS
Prosecution Case
On October 30, 2003, a shooting occurred in the street outside defendant’s residence at 1018 East 17th Street in Long Beach. A parked Chevrolet Tahoe, belonging to defendant’s wife, Tiyefa Starks, sustained two bullet holes. Patrol Officer Ryan LeBaron responded to the scene and interviewed defendant on the street about the shooting. Defendant told LeBaron that he and some of his “homies” were standing in front of his residence minutes before the shooting. Defendant left his friends to walk to a liquor store, when he heard rapid gunfire and saw a car driving away. Defendant said he knew about the shooting and what caused it, but did not want to give any details because he did not want to snitch. Defendant told LeBaron he was a member of Rolling 20’s, and his gang nickname was Big Dimp Loc. Defendant explained that a week and a half earlier, there had been a dispute at a nightclub between Rolling 20’s and another gang known as Insane Crypt relating to the Rolling 20’s handling of “the Mexicans.” As a result, Insane Crypt gave a “green light” to its members to shoot members of Rolling 20’s. Defendant told LeBaron that on October 27, 2003, members of Rolling 20’s shot at members of Insane Crypt in the area of 20th Street and Pine, and the shooting on October 30, 2003, was by Insane Crypt in retaliation for the October 27, 2003 shooting.
Two people sitting outside were hit by the gunshots.
The Tahoe, in a locked condition, was towed to the police tow yard. City of Long Beach Identification Technician Heather Galloway was assigned to photograph the Tahoe in the tow yard on October 31, 2003. Once the Tahoe was unlocked, Galloway saw a gun under the right rear passenger floor mat. She called Detective Paul Edwards, who recovered the loaded gun from under the mat.
Detective Abel Morales, assigned to the gang detective unit, interviewed defendant and Starks on November 5, 2003. Morales spoke first with Starks, who said she had no idea about the gun but defendant would tell Morales what he needed to know. After advising defendant he was not under arrest and was free to leave, Morales questioned defendant about the gun found in the car. Defendant said the gun was his, that he had placed it in the car, and his cousin (Salim Shariff) had given him the gun to hold. Shariff had used the gun twice before giving it to defendant, who kept the gun for protection. In Morales’s experience, it is common for a gang member to pass a gun along to another gang member after using it in a crime in order to avoid being caught with the weapon. Shariff was a suspect in two shootings under investigation. Morales believed a sergeant was in and out of the interview room while defendant admitted possessing the gun.
Defendant admitted having suffered a prior felony conviction, for the purpose of the felon in possession of a firearm charge.
Morales asked defendant if he knew who fired the shots on October 30, because the recovered bullet casings matched another murder case that Morales was working on. Defendant said he could find out who was responsible for the October 30 shooting. Morales did not arrest defendant for being a felon in possession of a firearm at that time, because he wanted defendant’s information. He gave defendant a week to get back to him, and when defendant did not, Morales started the process of having defendant charged and arrested. It took more than a month to arrest defendant, because defendant had moved.
Defense Case
Starks called the Long Beach police because her Tahoe was missing from in front of her residence. Morales told her she needed to come to the police station to get a release for the car. On November 5, 2003, Starks, defendant, and their young son went to the station. First, Starks spoke to Morales alone in the interview room. Morales introduced a sergeant to her before the interview started, and then the sergeant left and never returned. Morales questioned Starks about gang members who hung out on her block because he felt defendant was a gang member. Starks told Morales she did not know the gang members because she was not a gang member. Morales questioned her about the gun found in her car, and she replied there could not have been a gun in her car because she is the only one who drives her car, she does not own a gun, and she uses the car to drive her four children. Morales then interviewed defendant alone in the interview room, while Starks waited five feet outside the room with their son. According to Starks, no one entered the interview room while defendant was being interviewed by Morales.
Rebuttal
Sergeant Alexander Avila testified for the prosecution on rebuttal. Avila was present in the interview room while Morales conducted the interviews of defendant and Starks. Avila left the room from time to time to obtain computer confirmation of information defendant was giving Morales during the interview. Avila was in the room when defendant disclosed that his cousin had given him the gun found in the Tahoe. Avila also heard defendant state that his cousin was a suspect in an earlier shooting, and defendant kept the gun for protection. Morales entered defendant’s statement in the police report. Avila was aware of an ongoing gang war between the two largest Black gangs in Long Beach, and defendant revealed to Avila and Morales that he was a major player in one of the warring gangs and thus privy to gang information. Defendant provided intelligence information about what was going on generally with gangs in Long Beach.
This information was elicited by defense counsel during cross-examination of Avila.
DISCUSSION
I
DEFENDANT’S FAILURE TO OBJECT TO ADMISSION OF GANG EVIDENCE RESULTS IN FORFEITURE OF THE ISSUE ON APPEAL; IN ANY EVENT, THE GANG EVIDENCE WAS ADMISSIBLE
Defendant contends the trial court abused its discretion and deprived defendant of due process and a fair trial in admitting the testimony of three police officers on the subject of defendant’s gang membership and gang wars in the Long Beach area, because the evidence was not relevant, was more prejudicial than probative under Evidence Code section 352, and was hearsay. We conclude these contentions have been forfeited by defendant’s failure to object in the trial court on the grounds asserted in the appeal. (Evid. Code, § 353, subd. (a) [no judgment shall be reversed by reason of the erroneous admission of evidence that was not objected to]; People v. Partida (2005) 37 Cal.4th 428, 431.) In addition, we reject the contentions on the merits and further disagree with defendant’s argument that the absence of an objection demonstrates constitutionally inadequate assistance of counsel.
A. Procedure Regarding Gang Evidence
Officer LeBaron spoke with defendant at the scene of the shooting. As LeBaron was about to testify that defendant told him why the shooting occurred, defendant objected on hearsay grounds. The trial court ruled the evidence was admissible as a statement of a “party opponent.” LeBaron testified that defendant told him defendant was a gang member, at which point the trial court called for a sidebar conference. At the sidebar conference, the prosecutor stated he intended to offer defendant’s statements to both LeBaron and gang unit Detective Morales. According to the prosecutor, defendant told LeBaron he was a member of a gang, there was a rivalry between defendant’s gang and another gang, and the October 30, 2003 shooting was in retaliation for an earlier shooting. The prosecutor said Morales would testify that defendant said the gun found in the Tahoe had been used in two earlier gang shootings and was then given to him. The prosecutor argued that this evidence would explain why defendant had the gun and the circumstances of the shooting. Defendant objected on the ground that the prosecutor “can get the same point across without mentioning the . . . prior gang involvement.” The trial court allowed the testimony. The trial court stated: “[i]t’s an admission that explains why the gun is where it is located. The probative value substantially outweighs any unfair or undue prejudice in this court’s view. And also, it goes to the identity of the defendant on the reason why he would need a gun.”
B. Forfeiture
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.” (Evid. Code, § 353.)
“‘In accordance with [Evidence Code section 353], we have consistently held that the “defendant’s failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable. (People v. Green (1980) 27 Cal.3d 1, 22 [objection on ground that questions were leading does not preserve appellate argument that the evidence was impermissible evidence of other crimes]; . . .)’ [Citation.]” (People v. Partida, supra, 37 Cal.4th at pp. 433-434.) “[A] trial objection must fairly state the specific reason or reasons the defendant believes the evidence should be excluded. If the trial court overrules the objection, the defendant may argue on appeal that the court should have excluded the evidence for a reason asserted at trial. A defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial. . . . [¶] . . . To the extent, if any, he argues that due process required the court to exclude the evidence for a reason not included in the trial objection, that argument is forfeited because he did not object to the evidence on that basis at trial.” (Id. at p. 431.) There is nothing in the record to support the finding urged by defendant that an objection would have been futile—to the contrary, the trial court invited counsel to the sidebar conference in order to afford an opportunity to explore the evidence and consider objections prior to admission of the disputed testimony.
Defendant did not object to the testimony of LeBaron and Morales regarding defendant’s gang membership and the gang war on relevancy or Evidence Code section 352 grounds. Defendant himself elicited Avila’s gang evidence testimony and made no motion to strike it. Defendant’s hearsay contention on appeal is that defendant’s statement to LeBaron about the gang war originating from a confrontation at a nightclub was multiple-level hearsay, because there was no evidence defendant was present at the nightclub when the dispute erupted. Defendant never articulated a specific multiple-level hearsay objection in the trial court. Defendant was given an opportunity to object on any ground during the sidebar conference, but his sole objection was that the prosecutor could make the same point without the evidence of defendant’s gang membership, a nonspecific object absent in the Evidence Code. The trial court’s findings that the evidence was relevant and more probative than prejudicial under Evidence Code section 352 were merely to protect the record, and did not preserve an objection that defendant did not make. Accordingly, we deem defendant’s hearsay, relevance, and Evidence Code section 352 objections to the gang evidence forfeited. Further, as we discuss below, the objections have no merit.
C. Hearsay Objection
Assuming defendant’s hearsay objection preserved the issue for appeal, we conclude it has no merit. Defendant contends the record indicates he was not present at the nightclub where the gang dispute erupted, so any information he provided regarding the dispute at the nightclub had to be hearsay. Defendant argues his statement to LeBaron regarding the nightclub incident was based upon inadmissible hearsay, which should have been excluded at trial. Contrary to defendant’s argument that the evidence of the genesis of the gang conflict was inadmissible hearsay, we conclude the evidence was not offered for the truth of the matter asserted, but instead was properly received to demonstrate facts, which if believed by defendant, provided an explanation for his possession of the gun.
The premise of the argument is questionable. Because there was no objection on this ground in the trial court, the prosecution was not called upon to present evidence as to whether defendant had been present in the nightclub, a matter which might have been easily cleared up in response to a timely objection.
“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) The gang rivalry was relevant to establish defendant’s motive for possessing the gun and his knowledge of its presence in the vehicle. The gang evidence was relevant whether or not it was true that the gang rivalry stemmed from a dispute at a nightclub. In fact, it could be entirely false that the rivalry started at the nightclub, but as long as defendant believed the gang dispute was real, it provided his motivation for possessing the gun. (See People v. Williams (1997) 16 Cal.4th 153, 193 [gang evidence relevant to motive and identity]; People v. Contreras (1983) 144 Cal.App.3d 749, 756-758 [same]; People v. Dominguez (1981) 121 Cal.App.3d 481, 499 [same].) Had a hearsay objection been made, it would have been properly overruled.
D. Relevance and Evidence Code Section 352 Contentions
We also conclude admission of the evidence of defendant’s gang membership and the basis for the gang conflict was relevant and not inadmissible under Evidence Code section 352. We review relevancy and Evidence Code section 352 rulings for abuse of discretion. (People v. Weaver (2001) 26 Cal.4th 876, 933; People v. Siripongs (1988) 45 Cal.3d 548, 574.) “A trial court abuses its discretion when its ruling ‘fall[s] “outside the bounds of reason.”’ [Citations.]” (People v. Waidla (2000) 22 Cal.4th 690, 714.)
“‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “No evidence is admissible except relevant evidence.” (Id., § 350.) “[T]he trial court ‘has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence’ [citation].” (People v. Weaver, supra, 26 Cal.4th at p. 933.)
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) A trial court’s determination under Evidence Code section 352 will not be disturbed on appeal absent a clear showing of abuse of discretion. (People v. Siripongs, supra, 45 Cal.3d at p. 574; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1610.) It is improper for a jury to conclude a defendant is disposed to commit the charged offense based on his association with a gang. (See People v. Plasencia (1985) 168 Cal.App.3d 546, 553.) However, evidence of a defendant’s gang membership may be admissible for several limited purposes, including to establish motive. Gang membership is relevant to the issue of motive, when the motive for the offense is gang related. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)
The gang evidence was relevant because it served to explain the basis for the shooting as well as defendant’s motivation for possessing the gun. The shooting itself was gang related, and defendant’s statements make clear he came into possession of the weapon in response to the gang conflict. Defendant, a member of a gang embroiled in a gang war, possessed the gun for protection on the street. (See People v. Ruiz (1998) 62 Cal.App.4th 234, 239 [gang evidence is admissible “when the very reason for the crime is gang related”].)
Apart from the gang evidence, defendant admitted to Morales and Avila that the gun belonged to him because his cousin gave it to him, he needed it for protection, and he kept it in the Tahoe. The offense of felon in possession of a firearm requires possession or custody of a firearm and knowledge of the presence of the firearm. (§ 12021, subd. (a)(1).) Defendant disputed the gun belonged to him or he had knowledge of the presence of the gun. Given defendant’s admission he kept the gun in the Tahoe for protection, the evidence of the gang war and defendant’s membership in one of the warring gangs was relevant to show why defendant needed protection and possessed the weapon. The evidence tended to identify defendant as the person who possessed the gun and show defendant knew the gun was in the Tahoe. “While defendant[’s] gang membership and . . . gang activities were prejudicial to a certain degree, the evidence was highly relevant to the prosecution’s theory of how and why” defendant was in possession of a gun. (See People v. Olguin, supra, 31 Cal.App.4th at p. 1370.)
Section 12021, subdivision (a)(1) provides that “[a]ny person who has been convicted of a felony under the laws . . . of the State of California, . . . who . . . has in his or her possession or under his or her custody or control any firearm is guilty of a felony.” CALJIC No. 12.43 sets forth the elements of the offense. “In order to prove this crime, each of the following elements must be proved: [¶] 1. A person previously has been convicted of [a felony] . . .; [¶] 2. That person . . . [had in his . . . possession] [or] [had under [his] . . . custody or control] a firearm; and [¶] 3. That person knew of the presence of the firearm.”
The evidence of the gang war and defendant’s gang membership was also relevant to rebut the defense theory that Morales fabricated the confession in order to bring a criminal prosecution against defendant, which could be used as leverage to coerce defendant to agree to cooperate in Morales’s other investigations in exchange for dropping the criminal prosecution. Defendant did not challenge the admissibility of his confession, but suggested that Morales fabricated the confession in order to punish defendant for reneging on his promise to cooperate with Morales in Morales’s investigation of an earlier gang homicide and to cover himself for his own failure to arrest defendant when Morales interviewed him on November 5, 2003. Thus, defendant’s contention that the gang evidence was more prejudicial than probative, because defendant’s confession made the gang evidence “irrelevant” and of “no probative value whatsoever” is without merit. Since defendant disputed that he made the confession, the gang evidence, which went to identity, possession, and knowledge, was probative of the disputed facts whether defendant possessed the gun with knowledge of its presence.
E. Ineffective Assistance of Counsel
Defendant contends trial counsel was ineffective for failing to object to the gang evidence. Counsel was not ineffective.
“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.]” (People v. Scott (1997) 15 Cal.4th 1188, 1211.) “When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) “[W]here the record shows that counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.” (People v. Pope (1979) 23 Cal.3d 412, 425.)
We have concluded the gang evidence was admissible. It is axiomatic that the failure to object to admissible evidence does not constitute inadequate assistance of trial counsel. Even if any of the evidence would not have been admitted had counsel made an objection, counsel’s failure was not prejudicial. (Evid. Code, § 353, subd. (b) [a judgment shall not be reversed by reason of erroneous admission of evidence unless the error resulted in a miscarriage of justice].) Defendant confessed to the commission of the crime. Defendant argues that the gang evidence was prejudicial even though defendant confessed, because Morales’s testimony that defendant confessed was “reasonably subject to disbelief,” and there was no other evidence establishing defendant’s guilt. However, Avila testified defendant confessed in his presence, and defendant offers no reason based on the trial record to distrust Avila’s testimony. Defendant contends the gang evidence was also prejudicial because the prosecutor told the jurors they did not have to believe that defendant confessed and could convict defendant solely upon finding defendant was gang-involved. This is an unfair mischaracterization of the prosecutor’s argument. The prosecutor did not argue defendant’s gang involvement was sufficient to establish guilt, but instead argued the gang evidence corroborated defendant’s confession and explained why defendant had a gun.
II
Sufficiency of the Evidence of the Corpus Delicti
Defendant contends that, absent the inadmissible gang evidence, there is insufficient evidence of the corpus delicti, because the only other evidence of the corpus delicti is defendant’s confession, and a person may not be convicted of a crime unless there is some proof of the crime independent of the person’s admission or confession. We disagree.
The jury was instructed in the language of CALJIC No. 2.72, which states the corpus delicti rule: “No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [confession] [or] [admission] made by [him] [her] outside of this trial. [¶] The identity of the person who is alleged to have committed a crime is not an element of the crime [nor is the degree of the crime]. The identity [or degree of the crime] may be established by [a] [an] [confession] [or] [admission].”
“The Supreme Court has described the corpus delicti rule thusly: ‘In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extra judicial statements, confessions, or admissions of the defendant. [Citations.]’ [Citations.]” (People v. Chan (2005) 128 Cal.App.4th 408, 419-420.) “The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant’s extra judicial statements may then be considered for their full value to strengthen the case on all issues.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1171.)
We reiterate that the gang evidence was properly received, and there is no basis for excluding it from the corpus delicti corroboration discussion. In any event, the record contains the necessary slight evidence of a criminal agency independent of defendant’s extra judicial statements, and Morales’s testimony about gang practices and an earlier gang homicide.
Most of the gang evidence was contained in defendant’s extra judicial statements.
Defendant’s ex-felon status was established by stipulation. The gun was found under the floor mat in the locked Tahoe. These facts indicate that the gun was placed in the car before the shooting incident occurred and the police towed the car. The car was owned by Starks and was parked in front of defendant’s residence. Defendant was near the car immediately after the shooting. These facts support an inference that defendant had custody and possession of the gun. This inference was bolstered by Starks’s disclaimer of all knowledge of the gun when asked about it by Morales. She instead directed Morales to defendant, who would tell Morales what he needed to know. One logical inference from this evidence is that the gun did not belong to Starks, but that it was in defendant’s possession. This is sufficient independent proof of the crime of ex-felon in possession of a firearm.
III
CALJIC No. 2.80 [Expert Testimony Instruction]
Morales testified it is typical for a gang member to pass a gun that has been used in a crime onto another gang member to avoid being linked to the gun in a criminal investigation. Defendant contends the trial court prejudicially erred in failing to instruct the jury sua sponte, in the language of CALJIC No. 2.80, on how to evaluate expert testimony. There was no prejudicial error.
CALJIC No. 2.80 states: “[A witness] [Witnesses] who [has] [have] special knowledge, skill, experience, training or education in a particular subject [has] [have] testified to certain opinions. This type of witness is referred to as an expert witness. In determining what weight to give to any opinion expressed by an expert witness, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion. [¶] An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. [¶] You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable.”
“When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable. [¶] No further instruction on the subject of opinion evidence need be given.” (§ 1127b.)
“The instruction called for by Penal Code section 1127b must be given sua sponte where expert testimony has been received. [Citations.] However, the erroneous failure to instruct on the weight of expert testimony is not prejudicial unless the reviewing court, upon an examination of the entire cause, determines that the jury might have rendered a different verdict had the omitted instruction been given.” (People v. Reeder (1976) 65 Cal.App.3d 235, 241.)
We accept defendant’s argument that Morales provided expert testimony, although the conclusion is debatable. His testimony was brief and provides no basis for a finding of prejudicial error in failing to give CALJIC No. 2.80. Morales’s testimony concisely explained why gang members have a reason to dispose of weapons used in crimes and to arm themselves for offensive and defensive purposes. We are satisfied CALJIC No. 2.80 would have added nothing of significance to the jury’s evaluation of the case. There is no likelihood the jury would have rendered a verdict more favorable to defendant had CALJIC No. 2.80 been given, and any error was unquestionably harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
IV
Judicial Misconduct
Defendant contends the trial court committed judicial misconduct by treating defense counsel with condescension in front of the jury. Defendant did not object in the trial court on this ground. A contention the trial judge disparaged a defendant’s counsel is forfeited if “there were no timely objections to any of the complained-of comments such as would have enabled the court to dispel any misunderstanding with appropriate admonitions.” (People v. Wright (1990) 52 Cal.3d 367, 411; see also People v. Burnett (1993) 12 Cal.App.4th 469, 475-476.)
In any event, the trial court did not commit judicial misconduct. “A court commits misconduct if it persistently makes discourteous and disparaging remarks so as to discredit the defense or create the impression it is allying itself with the prosecution.” (People v. Santana (2000) 80 Cal.App.4th 1194, 1206-1207.) Repeatedly admonishing defense counsel not to follow an inadmissible line of questioning is “innocuous.” (Id. at pp. 1201, 1207.) More than 15 instances of taking over the examination of a prosecution witness, when it was entirely unnecessary for the trial court to intervene to aid in the elicitation of clear and comprehensive testimony, and only eliciting testimony adverse to the defendant, did not compel reversal where no miscarriage of justice resulted. (People v. Campbell (1958) 162 Cal.App.2d 776, 786-788.) Substantially more is required to constitute prejudicial misconduct. (See People v. Harbolt (1988) 206 Cal.App.3d 140, 158 [systematically belittling counsel in front of the jury, accusing counsel of being asleep and sarcastically suggesting counsel’s statements were being uttered by a ventriloquist, was not prejudicial misconduct; admonishing counsel to stay awake, characterizing counsel’s questions “much ado about minutia” and one of counsel’s comments as “a little old lady’s comment,” and cynically referring to counsel as “‘your lordship’” was not prejudicial misconduct].) Moreover, the giving of CALJIC No. 17.30, which instructs the jury not to take its cue from the judge, dispels any prejudice from purported judicial misconduct. (Id. at p. 158.)
CALJIC No. 17.30 states: “I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness. [¶] If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion.”
Having reviewed the record, we conclude that the trial court’s comments did not begin to approach judicial misconduct. The instances identified by defendant consist of the trial court asking one question of one witness and generally requiring defense counsel to frame questions appropriately, refrain from eliciting inadmissible information, comply with the trial court’s rulings prohibiting certain lines of inquiry, and comport himself appropriately. Such rulings were consistent with the trial courts duty to control proceedings, limit the introduction of evidence to proper matters, and provide a forum for an expeditious and effective determination of the truth. (§ 1044; People v. Chong (1999) 76 Cal.App.4th 232, 244-245; People v. Burnett, supra, 12 Cal.App.4th at p. 475.) Not only did the trial court instruct the jury prior to deliberations in the language of CALJIC No. 17.30 not to take its cue from the judge, but the trial court also instructed the jury before any evidence was taken as follows. “No statement, ruling, remark or comment I may make is intended to indicate any opinion I may have about the case or how I think you, the jury, should decide the case. [¶] At times I may ask questions of witnesses, if I do that it is simply to bring out matters I feel should be clarified. Just because the court asks a question does not give the answer any greater weight, nor does it imply any significance as to the importance of the question, sometimes things just need to be revisited to clear up any unintended ambiguities.” These instructions served to dispel any possible prejudice from the purported judicial misconduct.
Since judicial misconduct did not occur, defendant’s “related claim of ineffective assistance of counsel and his derivative claims of federal constitutional error likewise must fail.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 84.)
V
Continuance
Defendant contends that the trial court’s denial of his pretrial request for a continuance denied him his rights to effective assistance of counsel, due process, and a fair trial. We disagree.
“Continuances shall be granted only upon a showing of good cause.” (§ 1050, subd. (e).) “A ‘trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. [Citation.] A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.’ [Citation.] Such discretion ‘may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.’ [Citation.] ‘To effectuate the constitutional rights to counsel and to due process of law, an accused must . . . have a reasonable opportunity to prepare a defense and respond to the charges.’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 670.) It is within the trial court’s discretion to deny a continuance if the trial court reasonably believes the request for a continuance was based upon a desire to delay the proceedings. (People v. Jenkins (2000) 22 Cal.4th 900, 1038.) “[O]ur conclusion the trial court acted within its broad discretion in denying a continuance forecloses a constitutional challenge.” (People v. Roldan, supra, 35 Cal.4th at p. 671.)
The trial was scheduled for May 21, 2004. On that date, defense counsel requested a three-month continuance until August 24, 2004, to file a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (“Pitchess”) [discovery of records of internal police investigations of allegations of officer misconduct] and because counsel planned to be away on vacation from June 27 to August 23. Concerning the Pitchess motion, defendant alleged that a suspect in an unrelated case, Mark Folks, had told defendant that Morales had altered a search warrant and served it on Folks in the unrelated case. Defendant needed time to subpoena Folks’s arrest records. The trial court concluded that a three-month continuance was not warranted, although it would consider a shorter continuance, an offer defense counsel did not pursue. The prosecutor offered to help counsel obtain whatever information he thought he needed by May 24, and counsel requested the police reports under case No. D.R. 03-88927, regarding Folks’s arrest. The trial court found good cause to continue the matter until May 24.
On May 24, the prosecutor produced the police reports in court, but argued defendant was not entitled to the reports because they had nothing to do with defendant’s case. The trial court reviewed the police reports and concluded they contained nothing discoverable and nothing material to the defense. At the hearing, defendant asked for additional discovery items that were unrelated to defendant’s case, and the trial court denied the request. Counsel also requested additional time for the investigator to try to obtain the search warrant. The trial court denied discovery of the police reports concerning Folks and the other matters of investigation described by defendant on the ground they contained nothing material to the defense, the requests were late, and the time requested to pursue the discovery too lengthy. The trial court ruled the request for a continuance to file a Pitchess motion was untimely.
In the appeal, defendant does not challenge the denial of his request for additional discovery.
The trial court’s decision denying discovery of the report was correct. (See Part XI, infra.)
It was not an abuse of discretion to deny the continuance. There was no good cause for a three-month continuance, no showing of diligence was made regarding the items sought in discovery, and denial of the continuance did not deprive defendant of a reasonable opportunity to prepare for trial. Defense counsel knew about Folks prior to trial and made reference to calling him as a witness, but ultimately rested without Folks’s testimony. As the prosecutor pointed out, defendant could have filed a Pitchess motion to seek additional relevant information. Defendant did not even ask the prosecutor for the search warrant until May 21, when the prosecutor offered to bring in whatever defendant needed. On May 24, defendant belatedly asked for a great deal of discovery that was not relevant to any issue in the case and did not take advantage of the trial court’s willingness to grant a short continuance. The trial court reasonably exercised its discretion on this record in denying the continuance.
Even if the trial court did abuse its discretion in denying the continuance, defendant makes no showing of prejudice. (People v. Samayoa (1997) 15 Cal.4th 795, 840.) Defendant had an opportunity to accomplish his objective of impeaching Morales by calling Folks to testify for the defense. Defendant stated at trial that he intended to call Folks to testify Morales served a bogus search warrant on him. The prosecutor stated the file of the District Attorney’s reject of prosecution of Folks indicated Morales did not sign or serve the search warrant, and the District Attorney never questioned the search warrant. In the end, defendant rested without calling Folks to testify. The allegations of Morales’s misconduct in an unrelated case remain unsubstantiated.
Alternatively, defendant contends counsel was ineffective for failing to be prepared for trial and failing to request a shorter continuance. We disagree. The record does not indicate counsel was unprepared for trial. To the extent this issue involves the incident involving Folks, the argument is completely speculative and requires no further discussion. Defendant confessed to Morales and Avila, and the gun was found in defendant’s wife’s car. Given the strength of the evidence, defendant has fallen well short of demonstrating actual prejudice stemming from denial of the motion to continue.
VI
Marsden Error
The jury returned a guilty verdict on May 25, 2004. Trial on the prior conviction allegations was set for June 2, 2004. On June 2, the trial court indicated there was a request for a Marsden hearing, which was held outside the presence of the prosecutor. The trial court asked defendant to state his reason why a new attorney should be appointed. Defendant replied that counsel had failed to introduce documents to demonstrate perjury on the part of Morales. The trial court asked defendant if he had any other reasons, and defendant replied, “Yes, there are. But right offhand, I have them written.” The trial court commented that it was late for a Marsden motion, but that a motion for new trial could be made. Defendant then said, “I’m just trying to file for a new trial.” The trial court observed, “You are not asking for a new attorney, so there is no Marsden motion.”
Defense counsel stated that defendant wanted counsel to make a new trial motion but counsel believed a new trial motion was not appropriate. Counsel suggested to defendant that defendant make a Marsden motion in order to obtain new counsel who would file a new trial motion for him. The trial court denied the Marsden motion, ruling the conflict between defendant and counsel was over trial strategy Defendant then asked to address the court, and the trial court denied the request.
Defendant contends the denial of the request was an abuse of discretion because the trial court failed to inquire into defendant’s reasons for the request, and it was an abuse of discretion to deny the request on the merits.
“When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation . . ., the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court’s discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.” (People v. Smith (2003) 30 Cal.4th 581, 604.) The timeliness of the request is one factor to consider. (Id. at pp. 606-607 [“‘[i]t is within the trial court’s discretion to deny a motion to substitute counsel made on the eve of trial where substitution would require a continuance’”].) We review a ruling on a request to relieve counsel for abuse of discretion. (People v. Marsden, supra, 2 Cal.3d at p. 124.)
Contrary to defendant’s contention, the trial court did conduct a Marsden hearing at which the court considered defendant’s complaint with defense counsel. The trial court did not fail to inquire into defendant’s reasons for substitution. The trial court considered defendant’s statements and asked defendant if he had further reasons. The trial court also listened to counsel’s explanation. The trial court did not cut defendant off until after the trial court had issued its ruling and explained its reasoning. The mandates of Marsden were met by the trial court.
The colloquy with defendant revealed that defendant’s complaint was about trial counsel’s decision not to introduce unidentified impeachment documents, a decidedly tactical matter left to the discretion of counsel. Disagreements over tactical matters do not state a case for inadequate representation. (People v. Lucky (1988) 45 Cal.3d 259, 281-282.) Since counsel’s decision concerning the impeachment documents was a tactical decision, the trial court was not obligated to appoint new counsel. Consideration of the totality of the circumstances, including the timing of the Marsden motion and the fact defendant’s claims regarding Morales are unproven, points to the conclusion that the trial court acted within its discretion.
VII
Cumulative Error
Defendant argues the cumulative effect of the errors. “We have found no errors that can be deemed cumulatively prejudicial.” (People v. Box (2000) 23 Cal.4th 1153, 1219.)
VIII
Sufficiency of the Evidence of Prior Prison Term
Defendant contends his sentence was improperly enhanced with two prior prison terms pursuant to section 667.5, subdivision (b). Defendant reasons that the record shows the prison terms for the two prior convictions—one for his April 20, 1994 robbery conviction and another for his March 4, 1993 conviction for possession of an assault weapon—were served concurrently. Although we disagree that the prison terms were served concurrently, we nevertheless conclude one of the two prior prison term enhancements must be stricken, defendant’s sentence reduced by one year, and the amount of the restitution fine and parole revocation fine each be reduced by $200.
The trial court ordered defendant to pay a restitution fine pursuant to section 1202.4, subdivision (b) in the amount of $200 per year for eight years and a parole revocation fine pursuant to section 1202.45 in the same amount to be suspended unless parole is revoked.
Section 667.5 provides in pertinent part: “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] . . . [¶] (b) . . . [W]here 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. [¶] . . . [¶] (d) For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody or until release on parole, whichever first occurs, including any time during which the defendant remains subject to re imprisonment for escape from custody or is re imprisoned on revocation of parole. The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense. (e) 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. [¶] . . . [¶] (g) A prior separate prison term for the purposes of this section shall mean 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 re imprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any re imprisonment after an escape from incarceration.”
Defendant was convicted of possession of an assault weapon in violation of section 12280, subdivision (b) on March 4, 1993, and placed on 36 months formal probation on condition he serve 365 days in county jail. On March 23, 1994, he was convicted of robbery and sentenced on April 20, 1994, to serve 13 years in state prison. On May 16, 2004, he was found to be in violation of probation in the assault weapon case. The sentencing range for a conviction of section 12280, subdivision (b) is imprisonment in state prison for 16 months, two years, or three years. (§§ 12280, subd. (b), 18.) Defendant was sentenced to state prison for a term of eight months. The fact that the trial court imposed a state prison term of eight months, which is one-third of the midterm of two years for the offense, indicates that the term was a consecutive sentence. (See § 1170.1, subd. (a) [where a consecutive term is imposed, the aggregate term of imprisonment is the sum of the principal term (greatest term of imprisonment) and subordinate term of one-third of the midterm for the consecutive offense].)
Accordingly, we disagree with defendant’s argument that he served concurrent terms for the two prior convictions. However, we conclude, in accordance with existing authority, that defendant’s consecutive sentences constituted a single separate prison term for purposes of section 667.5, subdivision (b). A one-year prior prison term enhancement may be imposed for any felony in which the defendant served a separate prison term in state prison. (§ 667.5, subds. (b), (e).) A completed continuous period of incarceration consisting of two terms served consecutively is a “prior separate prison term.” (Id., subd. (g).) “[W]e interpret the language of subdivision (g) to mean that as long as there is ‘a continuous completed period of prison incarceration,’ a defendant who has served concurrent or consecutive prison sentences on various commitments is deemed to have served only one prior prison term for the purpose of the enhancement provisions of Penal Code section 667.5.” (People v. James (1980) 102 Cal.App.3d 728, 733.) “The plain language of subdivision (g) indicates after a defendant is committed to state prison, additional concurrent or consecutive sentences imposed in the same or subsequent proceedings are deemed to be part of the same prison term.” (People v. Cardenas (1987) 192 Cal.App.3d 51, 56.)
It appears from the record that defendant served only one separate prior prison term, composed of consecutive sentences for his robbery conviction and possession of an assault weapon conviction. Only one enhancement was proper under section 667.5, subdivision (g).
IX
Right to Jury Trial On the Issue of Sentence Aggravation
Defendant contends the trial court violated his Sixth Amendment jury trial right by imposing the upper term for the felon in possession of a firearm conviction without a jury finding on the aggravating factors pursuant to Cunningham, supra, 549 U.S. at page __ [127 S.Ct. at p. 860] and Blakely, supra, 542 U.S. at page 301. In Black II, supra, 41 Cal.4th at page 805 and Sandoval, supra, 41 Cal.4th at page 831, 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 fact finding 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.)
Here, the trial court imposed the upper term based on aggravating factors related to recidivism: defendant’s prior convictions as an adult or sustained juvenile petitions were numerous; defendant served a prior prison term; defendant was on parole at the time the offense was committed, demonstrating unsatisfactory performance on parole; and defendant’s prior performance on parole was unsatisfactory. Applying Black II and Sandoval, we find no Sixth Amendment violation. Defendant stipulated during the trial that he had been convicted of a felony. In addition to evidence presented to the trial court of the 1993 conviction for possession of an assault weapon and 1994 conviction for robbery charged as sentence enhancements, the probation report revealed other adult convictions and sustained juvenile petitions. Defendant was on parole at the time of the charged offense.
Thus, defendant’s recidivism consists of more than simply the prior conviction that is an element of the substantive offense of felon in possession of a firearm. Accordingly, to the extent defendant argues the upper term violates California Rules of Court, rule 4.420(d) (“[a] fact that is an element of the crime shall not be used to impose the upper term”), his contention is mistaken.
Black II made it clear that, consistent with Apprendi, aggravating circumstances justifying the upper term may be (1) found by the jury, (2) admitted by the accused, or (3) established “based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Further, “‘Recidivism . . . 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.) Here, the recidivism findings that authorized defendant’s upper term were established by his record of prior convictions, juvenile adjudications, and history on parole. Defendant’s criminal history established aggravating circumstances which “independently satisf[ied] Sixth Amendment requirements and render[ed] him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial [as well as his right to due process of law] was not violated by imposition of the upper term sentence . . . .” (Id. at p. 820.)
Defendant contends Black II was wrongly decided. However, we are bound under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 to follow the decision of our Supreme Court and do so here.
X
Romero Motion
Defendant next argues the trial court’s denial of his Romero motion to dismiss defendant’s prior strike conviction was an abuse of discretion, because the trial court did not adequately consider defendant’s individual characteristics. Our review of the record reveals no abuse of discretion.
Under section 1385, the trial court has discretion to strike a prior felony conviction allegation in furtherance of justice. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) The trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) While a trial court must enter a statement of reasons in the minutes of the court when dismissing a prior conviction, the trial court is not required to “‘explain its decision not to exercise its power to dismiss or strike.’” (People v. Carmony (2004) 33 Cal.4th 367, 376.) “‘“The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)” (People v. Barrera (1999) 70 Cal.App.4th 541, 554.) We review the trial court’s exercise of discretion for abuse of discretion. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.)
Defendant contends the trial court failed to consider the testimony of the witnesses and defendant’s behavior at trial, except to say that defendant had community support. Defendant mischaracterizes the record, which shows the trial court considered all the evidence regarding defendant’s individual characteristics. The trial court stated it read defendant’s motion to strike and summarized the substance of the declarations and letters which were submitted to the court and referred to in the motion to strike. This material placed defendant’s priors in the context of his difficult childhood and presented information that defendant had turned his life around and was contributing to his family and the community. The trial court listened to argument by counsel. The trial court inquired of three witnesses called by defendant to tell the trial court about defendant’s performance on probation, efforts to help bring interracial or ethnic peace to the streets, personal growth and rehabilitation, and family’s love for defendant. At the conclusion of the testimony, the trial court stated it had given “individualized consideration” and denied the Romero motion. This record shows the trial court took into account the particulars of defendant’s individual circumstances, character, and history in exercising its discretion to deny the motion. There was no abuse of discretion.
XI
Review of Sealed Police Report
In the trial court, defendant requested discovery of police reports in case No. D.R. 03-88927. The prosecution objected to disclosure. After reviewing the report in camera, the trial court concluded it contained nothing discoverable, helpful, or material to the defense, and ordered the report kept under seal in the court file. Defendant requests we review the sealed report to determine if it contains any material favorable to the defense under Brady v. Maryland, supra, 373 U.S. at page 87. We have examined the sealed reports, D.R. 03-88927, and find no arguable basis for discovery and nothing that is arguably favorable to the defense under Brady. The trial court’s ruling was not an abuse of discretion.
DISPOSITION
One of the prior prison term enhancements pursuant to section 667.5, subdivision (b) is stricken, defendant’s total sentence is reduced to seven years in state prison, and the restitution and parole revocation fines are each reduced by $200. In all other respects, the judgment is affirmed. Upon issuance of the remittitur, the clerk of the Los Angeles Superior Court shall prepare an amended abstract of judgment and forward it to the Director of the Department of Corrections and Rehabilitation.
We concur: TURNER, P. J., ARMSTRONG, J.