Opinion
D072763
07-11-2018
THE PEOPLE, Plaintiff and Respondent, v. FELIX ESPINO, Defendant and Appellant.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS291912) APPEAL from a judgment of the Superior Court of San Diego County, Garry Haehnle, Judge. Affirmed in part, reversed in part, and remanded with directions. Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Felix Espino guilty of one count of evading an officer with reckless driving. (Veh. Code, § 2800.2, subd. (a).) The trial court imposed a five-year sentence, comprised of the two-year midterm for the current offense, doubled for an alleged strike prior enhancement (Pen. Code, § 667, subds. (b)-(i)), and one year for an alleged prison prior enhancement (Pen. Code, § 667.5, subd. (b)).
On appeal, Espino asks us to independently review the trial court's findings on his motion to discover law enforcement personnel records. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531.) We have done so and find no discoverable material in the officer's personnel records. Espino also contends the trial court erred in enhancing his sentence based on the prison prior and strike prior allegations because he did not admit these allegations, nor were they found true. We agree, and thus reverse the judgment as to the enhancement allegations and the sentence. On remand, the prosecution is not barred from retrying Espino on the sentencing enhancement allegations.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2017, two police officers noticed a vehicle parked on the street with the front window rolled down and the passenger seat reclined. Concerned the vehicle may have been stolen, the officers conducted a records check and confirmed ownership of the vehicle. The vehicle owner stated Espino, her boyfriend, had the keys in his possession and may have run from the police because he was in violation of his probation.
Later that day, the two officers observed Espino driving the same vehicle approximately two blocks from where it had been parked. The officers saw Espino turn right without using his directional signal and continue through a red light without stopping. The officers activated the police vehicle's lights and sirens to conduct a traffic stop. Ignoring these commands, Espino reached speeds up to 80 miles per hour, ran through a red light, crossed a median, and weaved through traffic onto a freeway until he came to a stop, where he was arrested by officers.
DISCUSSION
I. Pitchess Review
Espino filed a Pitchess motion to determine whether one officer's personnel file revealed false arrests, false statements, false claims, false testimony, and/or complaints of dishonesty. In his motion, Espino claimed the officer's credibility was subject to question based on discrepancies in the officer's reports, radio transmissions, and preliminary hearing testimony. The trial court reviewed the officer's personnel file and ordered the in camera proceedings sealed. The trial court found no records responsive to the motion requiring disclosure.
Espino asks us to independently review the sealed Pitchess proceedings to determine whether the trial court complied with the proper procedure in concluding there are no discoverable materials in the officer's file. (See People v. Mooc (2001) 26 Cal.4th 1216, 1226, 1228.) We review the trial court's Pitchess ruling under the abuse of discretion standard. (Mooc, at p. 1228.) The Attorney General has no objection to our review.
After independently reviewing the sealed Pitchess proceeding, we find the trial court complied with the proper procedure and did not abuse its discretion when finding there are no discoverable materials in the officer's personnel file.
II. Sentencing Enhancements
Espino contends the trial court erred when imposing a five-year sentence without Espino admitting, or the trial court finding true, the alleged sentencing enhancements. The Attorney General concedes the error. We agree, but conclude that on remand the prosecution is not barred from a retrial of the enhancement allegations.
A. Factual Summary
The information alleged Espino violated Vehicle Code section 2800.2, subdivision (a), with one strike prior and six prison prior enhancements. By the time of trial, the prosecution pursued only the strike prior and one prison prior enhancements. (Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (b).) During motions in limine, the court granted Espino's request to bifurcate the trial and conduct a bench trial on the alleged sentencing enhancements. Defense counsel said, "We will be prepared to admit [priors] if there is a conviction."
After the trial, the jury found Espino guilty and the court scheduled the sentencing hearing for July 17, 2017. The clerk's minutes from the sentencing hearing state Espino admitted one strike prior and two prison prior enhancements. However, the transcripts of the proceedings do not reflect Espino admitted these enhancements nor that the court informed Espino of his constitutional rights and consequences of an admission. Nonetheless, the court and parties proceeded as though Espino had admitted the prior enhancements. Sentencing was continued until August 17, 2017 to allow defense counsel time to file a Romero motion to strike the strike prior. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) At the continued hearing, the court denied the Romero motion and imposed a five-year sentence, comprised of the two-year midterm for the current offense, doubled for the strike prior, and one year for the prison prior.
B. Analysis
Penal Code section 1158 provides: "Whenever the fact of a previous conviction . . . is charged in an accusatory pleading [and tried to the court] . . . the judge . . . must . . . find whether or not he has suffered such previous conviction." (Italics added.) "The prosecution must 'plead and prove' the prior conviction allegation [citations]." (People v. Monge (1997) 16 Cal.4th 826, 836.) Absent a clear statement finding the alleged enhancements are true, the additional term may not be imposed. (People v. Arias (2010) 182 Cal.App.4th 1009, 1019.)
Espino contends, and the People do not dispute, the court erred in failing to make an express finding on the truth of the alleged prior convictions. (See People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440.) We agree. Notwithstanding the clerk's minutes, the transcripts of the sentencing proceeding do not reflect Espino admitting or the court finding true the strike prior or the prison prior enhancements.
The Attorney General contends the prosecutor is not barred from retrying Espino on the alleged strike prior and alleged prison prior enhancements. Espino did not file a reply brief, and thus has implicitly conceded a retrial is permissible. The parties are correct. Neither the due process clause nor the double jeopardy clause bars a retrial on alleged sentencing enhancements in noncapital cases when the evidence was insufficient to support the enhancement findings. (See People v. Barragan (2004) 32 Cal.4th 236, 240-245; Monge v. California (1998) 524 U.S. 721, 734; People v. Monge, supra, 16 Cal.4th at pp. 842-845.) This principle applies with equal force in this situation, where the record does not show the defendant admitted the enhancement allegations or that the court made true findings on the allegations.
DISPOSITION
We affirm in part, reverse in part, and remand with directions to delete the admissions erroneously recorded in the July 17, 2017 minute order, vacate the sentence, permit the district attorney the opportunity to retry the strike prior and prison prior enhancements, and resentence Espino.
HALLER, Acting P. J. WE CONCUR: AARON, J. DATO, J.