Opinion
F084536
09-15-2023
THE PEOPLE, Plaintiff and Respondent, v. ANGEL MICHAEL FERNANDEZ, Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. DF016042A. Marcos R. Camacho, Judge.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
A jury convicted Angel Michael Fernandez (appellant) of battery by a prisoner on a nonprisoner (Pen. Code, § 4501.5). In a bifurcated proceeding, the jury found true five factors in aggravation (Cal. Rules of Court, rule 4.421) and two prior strike allegations (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced appellant to the upper term of four years in state prison, doubled due to the prior strikes, for a total of eight years.
All further statutory references are to the Penal Code unless otherwise indicated.
All further references to rules are to the California Rules of Court.
On appeal, appellant raises several claims related to the factors in aggravation, including failure to properly plead the specific factors, instructional error, and dual use of facts at sentencing. He also requests this court independently review the in camera Pitchess proceedings conducted by the trial court. We conclude no error occurred, and that any presumed error was harmless. We affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
BACKGROUND
I. Procedural History
The Kern County District Attorney's Office filed a second amended information charging appellant with battery by a prisoner on a nonprisoner (§ 4501.5; count 1) and two counts of resisting an executive officer (§ 69; counts 2 and 3). As to each count, the People alleged "that factors relating to the crime and/or the defendant include circumstances in aggravation within the meaning of California Rules of Court[, rule] 4.421." The People also alleged appellant suffered two prior strike convictions. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
At trial, the jury found appellant guilty on count 1 but not guilty on counts 2 and 3. Following trial, the trial court held a bifurcated proceeding before the jury on the truth of the alleged factors in aggravation and prior strike convictions. The jury found true both prior strike conviction allegations. It also found true all five alleged factors in aggravation: "[The] crime [involved] great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness" (Rule 4.421(a)(1)); "[The victim] was particularly vulnerable" (Rule 4.421(a)(3)); appellant "has engaged in violent conduct that indicates a serious danger to society" (Rule 4.421(b)(1)); appellant's "prior convictions as an adult are numerous or of increasing seriousness" (Rule 4.421(b)(2)); and appellant "has served a prior term in prison or county jail" (Rule 4.421(b)(3)).
II. Appellant Suddenly and Unexpectedly Punched a Correctional Counselor in the Face-Count 1.
We need not recount the evidence related to counts 2 and 3 because it was unrelated to count 1 and not relevant to the issues raised on appeal.
Servando Rivera was employed as a correctional counselor for the California Department of Corrections and Rehabilitation at Wasco State Prison. He is a sworn peace officer, but his duties involve classification and casework. This includes helping inmates understand custody credits and other pertinent information about their time in custody, acting as a liaison to families, issuing paperwork to inmates, and assisting parole officers. While on duty, he wears "civilian" clothes-a polo shirt with tactical style pants-and he carries a baton, pepper spray, and handcuffs.
Appellant was an inmate at Wasco State Prison serving a prison term. On the morning of October 28, 2020, Rivera attempted to serve appellant with some paperwork. Rivera stood alone at a podium in an indoor recreational area. He instructed appellant to come to the podium to sign a legal document. Appellant did not appear angry or agitated as he approached.
Once appellant reached the podium, Rivera began explaining the document to him. While Rivera was looking down at the document, he noticed through his peripheral vision that appellant was walking around the podium. As Rivera looked up, appellant threw a punch, striking him in the left side of the face with a closed fist. The force of the punch knocked Rivera back, and his leg struck a nearby metal electrical box, ripping his pants, and leaving a gash on his shin. Rivera retreated backward, and appellant took a step toward him. Rivera ordered appellant to get on the ground, and appellant complied.
Rivera suffered redness to his face and received first aid for the gash on his leg. He was otherwise uninjured.
III. Documentary Evidence at the Bifurcated Proceeding Established Appellant's Extensive Criminal History.
At the bifurcated proceeding, the trial court instructed the jury that it could consider evidence presented during the first phase of the trial plus any new evidence the parties presented. Neither party called additional witnesses. The only additional evidence presented was documentary evidence submitted by the People, which included a certified copy of appellant's California Law Enforcement Telecommunications System (CLETS) rap sheet, section 969b packets related to appellant's prior convictions, and other certified court records, including abstracts of judgment. These records showed appellant has served several prior prison terms since 2005. The records also established appellant has suffered numerous prior convictions, including for second degree robbery (§§ 211, 212.5), battery by a jail inmate on a person not confined (§ 243.15), assault with a deadly weapon (§ 245, subd. (a)(1)), possession of a deadly weapon by a prisoner (§ 4502, subd. (a)), second degree burglary (§§ 459, 460), possession of a controlled substance (Health &Saf. Code, § 11377, subd. (a)), misdemeanor battery on a peace officer or emergency personnel (§ 243, subd. (b)), misdemeanor resisting or obstructing a peace officer (§ 148, subd. (a)(1)), misdemeanor vandalism (§ 594, subd. (a)), and misdemeanor disorderly conduct (§ 647, subd. (f)).
DISCUSSION
I. Appellant's Claims Related to the Pleading of Factors in Aggravation, Jury Instructions, and the Trial Court's Reliance on said Factors in Aggravation to Impose the Upper Term are Meritless.
Appellant was tried in 2022, after Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) became effective on January 1, 2022. As is pertinent here, Senate Bill No. 567 amended section 1170 such that the trial court may only impose the upper term where factors in aggravation have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial. (§ 1170, subd. (b)(1) &(2).)
The bifurcated proceeding on the truth of the alleged factors in aggravation was based on this new legislation. Appellant raises three claims related to this proceeding. First, he argues the People failed to adequately plead and notice the five aggravating factors, violating his right to due process. Second, he contends the jury instruction on the factor that the victim was particularly vulnerable (Rule 4.421(a)(3)) misstated the law. Third, he claims the trial court's reliance on several of the aggravating factors at sentencing violated the prohibition against dual use of facts. As we explain below, each of these claims is without merit.
A. To the extent the People failed to properly plead the factors in aggravation in the information, any presumed error was harmless.
The People filed an amended information prior to trial alleging the truth of factors in aggravation but did not articulate the specific factors they would be seeking to prove. However, the prosecutor orally noticed the specific factors on the record.
Appellant claims the People's failure to plead the specific factors in the information denied him proper notice in violation of his federal right to due process under the Sixth and Fourteenth Amendments. Respondent counters that due process does not require the prosecution to plead factors of aggravation in an accusatory pleading. (See People v. Pantaleon (2023) 89 Cal.App.5th 932.)
We need not address whether the prosecution was required to plead specific aggravating factors because any presumed error was harmless. The record amply demonstrates appellant was not prejudiced by his claimed lack of notice.
1. Background
The People filed the initial information on August 25, 2021. It did not allege aggravating factors, presumably because Senate Bill No. 567 was not yet effective.
On April 12, 2022, approximately two weeks before trial, the People moved to file an amended information, which included the following allegation as to each count: "It is further alleged that factors relating to the crime and/or the defendant include circumstances in aggravation within the meaning of California Rules of Court[, rule] 4.421." The trial court granted the People's request and accepted the amended information. Defense counsel noted that the information did not allege specific aggravating factors that were going to be presented in court, and therefore she would be unable to prepare a proper defense. In response to defense counsel's concern, the prosecutor stated he would provide the specific factors.
The parties returned for trial on April 25, 2022. The trial court granted the People's motion to file a second amended information, which amended the language of two of the alleged substantive offenses. As to the aggravating factors, the prosecutor explained that his office's computer software did not allow him to include the specific factors in the information. Defense counsel objected to adding any specific factors at this point because they were "at trial." The trial court overruled the objection and told the prosecutor that he would need to state the specific factors on the record in the afternoon. The trial then proceeded to jury selection.
That afternoon, the prosecutor gave oral notice of the following five factors in aggravation on the record: "[T]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness" (Rule 4.421(a)(1)); "the victim was particularly vulnerable" (Rule 4.421(a)(3)); appellant's "prior conviction[s] as an adult ... are numerous or of increasing in seriousness" (Rule 4.421(b)(2)); appellant "has served a prior term in prison or county jail," (Rule 4.421(b)(3)); and appellant's "prior performance on probation . . . or parole [was unsatisfactory]" (Rule 4.421(b)(5)).
Defense counsel objected, stating the trial had already started and she was "just getting this information," and that the specific factors had not been the focus of her preparation. The trial court overruled the objection, stating that the factors were "encompassed" in what was already alleged in the information and supported by materials provided in discovery. The prosecutor clarified that he did not intend to submit additional evidence in the bifurcated portion of the trial except for certified records establishing prior convictions and prison commitments.
The jury returned verdicts on April 28, 2022, finding appellant guilty on count 1 only. The following week, prior to the start of the bifurcated proceeding, defense counsel again objected that she had not received a written copy of the factors in aggravation from the People. She argued the lack of proper notice violated appellant's right to due process because she was unable to "fully investigate," and asked that the court not allow the People to proceed on the aggravating factors. The trial court overruled the objection, explaining that no new evidence was being presented at the bifurcated proceeding, and thus all relevant evidence had been provided to the defense well before trial.
Later that morning, during a jury instructions conference, the trial court confirmed it would be instructing the jury with the factors in aggravation set forth in Rule 4.421(a)(1) (great violence), Rule 4.421(a)(3) (vulnerable victim), Rule 4.421(b)(1) (history of violent conduct), Rule 4.421(b)(2) (prior convictions are numerous or of increasing seriousness), and Rule 4.421(b)(3) (prior prison term). Notably, without objection from the parties, the trial court added the instruction for Rule 4.421(b)(1) (history of violent conduct), which had not been noticed by the People, and omitted the instruction for Rule 4.421(b)(5) (unsatisfactory performance on probation or parole), which had been noticed by the People. The jury was not instructed on Rule 4.421(b)(5) and made no finding on that factor.
Appellant suggests this violated the People's "exclusive charging discretion" (People v. Birks (1998) 19 Cal.4th 108, 113), but the People (and appellant) did not object to the trial court instructing on Rule 4.421(b)(1) in lieu of Rule 4.421(b)(5).
2. Appellant was not prejudiced by the People's failure to plead specific aggravating factors in the information.
"A defendant has a due process right to fair notice of the allegations that will be invoked to increase the punishment for his or her crimes." (People v. Houston (2012) 54 Cal.4th 1186, 1227.) As we noted above, we need not determine the extent to which this due process right applies to allegations of factors in aggravation, because any presumed error was harmless.
Initially, we reject appellant's assertion that harmless error analysis is inapplicable here because the People waived application of aggravating factors by failing to plead them with specificity. His reliance on People v. Mancebo (2002) 27 Cal.4th 735 in this regard is misplaced. There, the trial court imposed sentence for a multiple victim circumstance (§ 667.61, subd. (e)(5)) that had neither been pled in the information nor submitted to the jury. (People v. Mancebo, supra, 27 Cal.4th at p. 740.) The high court concluded that because the People's failure to allege the circumstance was a discretionary charging decision, "the doctrines of waiver and estoppel, rather than harmless error, apply." (Id. at p. 749.) Here, on the other hand, the People made efforts to plead the aggravating factors and provide notice to the defense and did not waive application of the factors by failing to submit them to the jury. (Ibid.)
Appellant nonetheless argues that respondent failed to meet its burden of proving the due process error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). We agree that Chapman sets forth the appropriate standard of review, as it applies to errors of a constitutional dimension. (See Rose v. Clark (1986) 478 U.S. 570, 576; Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.) Under Chapman, reversal is required unless the reviewing court can conclude beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.)
Applying Chapman, we conclude any error in failing to plead the specific aggravating factors in the information was harmless. Appellant was provided notice well in advance of trial that the People would seek to prove aggravating factors within the meaning of Rule 4.421. Defense counsel did not dispute that she received a copy of the first amended information in February, several months before trial. Additionally, the People orally noticed on the record the five specific factors they were seeking to prove in the bifurcated proceeding. Then, at a jury trial conference after the first phase of the trial and prior to the bifurcated proceeding, the trial court reiterated the factors that would be submitted to the jury and discussed applicable jury instructions with the parties. Therefore, while the People did not plead the specific aggravating factors in the information, appellant received notice prior to trial of the factors that would be submitted to the jury.
Nonetheless, to the extent the People's failure to notice the specific aggravating factors in the information violated appellant's due process right to notice, nothing in the record suggests appellant was prejudiced. The purpose of a pleading requirement is "to give sufficient notice to permit the defense to make informed decisions about the case, including whether to plead guilty, how to allocate investigatory resources, and what strategy to deploy at trial." (People v. Anderson (2020) 9 Cal.5th 946, 964.) However, as the trial court observed, the alleged factors were encompassed by the other charges and allegations in the information. Two of the factors, Rule 4.421(a)(1) (great violence) and Rule 4.421(a)(3) (vulnerable victim) were based entirely on the evidence that appellant had committed the acts alleged in count 1. The remaining three factors, Rule 4.421(b)(1) (history of violent conduct), Rule 4.421(b)(2) (prior convictions are numerous or of increasing seriousness), and Rule 4.421(b)(3) (prior prison term) were based on documentary evidence that would have been necessary to prove appellant's prior strike convictions. Moreover, these documents, which detail appellant's criminal history, would have been relevant at sentencing, even absent the prior strike allegations. Thus, the addition of the aggravating factors did not require appellant to address new evidence or substantially different legal issues from what was already required by the substantive offenses and prior strike allegations.
Given that the aggravating factors almost entirely overlapped with the other allegations in the information, there is no basis to conclude, as defense counsel claimed at trial, that she was unable to adequately investigate the allegations or prepare a defense. Notably, defense counsel did not request a continuance on this basis, despite her numerous objections. Appellant does not articulate what additional investigation or preparation was necessary, or how it might have changed the outcome of the trial. He only argues that if defense counsel had adequate notice, she would have been better able to help draft proposed jury instructions. But as we explain below, instructional error did not occur, and thus, appellant was not prejudiced on this basis.
We are also persuaded that any presumed error was harmless because the evidence supporting the aggravating factors was overwhelming. (See Neder v. United States (1999) 527 U.S. 1, 17-18 [noting overwhelming evidence of guilt rendered alleged instructional error harmless beyond a reasonable doubt]; People v. Covarrubias (2015) 236 Cal.App.4th 942, 954 [same].) The evidence was undisputed that appellant punched Rivera in the face without warning and for no apparent reason. While we recognize Rivera is a sworn peace officer and presumably trained to deal with violent conduct by inmates, he was ambushed by appellant without time to defend himself or brace for the impact. Thus, the evidence clearly established the crime "involved great violence ... or other acts disclosing a high degree of cruelty, viciousness, or callousness," (Rule 4.421(a)(1)), and that Rivera was "particularly vulnerable," (Rule 4.421(a)(3)). Moreover, appellant's extensive criminal history, as established by the documentary evidence admitted at trial, was undisputed. These records showed appellant served several prior prison terms, and suffered numerous felony convictions, including robbery (§§ 211, 212.5), assault with a deadly weapon (§ 245, subd. (a)(1)), battery by a jail inmate on a person not confined (§ 243.15), possession of a weapon in prison (§ 4502, subd. (a)), and second degree burglary (§§ 459, 460). Based on these records, the evidence was overwhelming that appellant "has engaged in volent conduct that indicates a serious danger to society" (Rule 4.421(b)(1)), that his "prior convictions as an adult . . . are numerous or of increasing seriousness" (Rule 4.421(b)(2)), and that he "has served a prior term in prison or county jail" (Rule 4.421(b)(3)).
Given the strength of the evidence and the lack of prejudice, there is no basis to conclude the jury would have returned a different verdict if the People had pled the specific aggravating factors in the information. In other words, the jury's finding was surely unattributable to the purported error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Therefore, any presumed error was harmless under Chapman, and this claim fails.
B. The trial court properly instructed the jury on the definition of "particularly vulnerable." (Rule 4.421(a)(3).) Any presumed error was harmless.
Appellant contends the jury instruction defining the aggravating factor that "[t]he victim was particularly vulnerable" (Rule 4.421(a)(3)) misstated the law by failing to properly define the term "particularly vulnerable." He claims the instruction should have specified that "particularly vulnerable" means more vulnerable than similarly situated victims of the same offense. We conclude instructional error did not occur, and any presumed error was harmless.
1. Background
Rule 4.421(a)(3) states: "The victim was particularly vulnerable." The trial court's instruction to the jury on this factor read in pertinent part:
"A victim is vulnerable if he or she is defenseless, unguarded, unprotected, [accessible], assailable and susceptible to a defendant's attack.
"The term particularly, as used in this instruction means the victim was vulnerable to a special or unusual degree."
2. Standard of Review
We review claims of instructional error de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) We must review the wording of the jury instruction and assess whether it accurately states the law. (Ibid.) We must consider whether a reasonable likelihood exists that the challenged instruction "caused the jury to misapply the law in violation of the Constitution. [Citations.] The challenged instruction is viewed 'in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.' [Citation.]" (Ibid.)
3. Instructional error did not occur.
Appellant relies on People v. Huber, which considered the definition of "particularly vulnerable victim" in the context of whether the record supported the trial court's finding that the victims were "particularly vulnerable" within the meaning of the predecessor to Rule 4.421(a)(3). (People v. Huber (1986) 181 Cal.App.3d 601, 629.) In so doing, the court quoted the following language from People v. Smith (1979) 94 Cal.App.3d 433, 436 (Smith): "Particularly, as used here, means in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act. An attack upon a vulnerable victim takes something less than intestinal fortitude. In the jargon of football players, it is a cheap shot."
Based on the language "to an extent greater than in other cases" from Smith, appellant argues the jury should have been instructed the victim was more vulnerable than other similarly situated victims of the same crime. We disagree. The trial court's instruction is consistent with Smith, and the additional language proposed by appellant was unnecessary. The trial court instructed the jury that "particularly" means "vulnerable to a special or unusual degree." This requires a finding that the victim was uniquely vulnerable-or in other words, that the victim was more vulnerable than other similarly situated victims. Thus, appellant's proposed language is at most mere surplusage.
We also note that in March 2023, after appellant's trial, the Judicial Council of California adopted jury instructions for aggravating factors, including the factor at issue here. That instruction, CALCRIM No. 3226, is consistent with the trial court's instruction. CALCRIM No. 3226 defines "particularly vulnerable" as "defenseless, unguarded, unprotected, or otherwise susceptible to the defendant's criminal act to a special or unusual degree." Significantly, the Bench Notes to CALCRIM No. 3226 state its definition of particularly vulnerable is based on several appellate cases, including Smith. Thus, we conclude, as did the drafters of CALCRIM No. 3226, that appellant's proposed language was unnecessary to properly define "particularly vulnerable." Therefore, the trial court did not commit instructional error.
4. Any presumed error was harmless.
Even if we had concluded the trial court committed instructional error, any presumed error was harmless under any standard. As we explained above, the evidence establishing that Rivera was particularly vulnerable was overwhelming. The undisputed evidence showed appellant punched the victim in the face without warning. The attack was sudden and unprovoked. To borrow from the language in Smith, it was a "cheap shot." (Smith, supra, 94 Cal.App.3d at p. 436.) Given the strength of the evidence, we conclude beyond a reasonable doubt that the purported instructional error did not contribute to the jury's finding. (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72-73, fn. 4.) Accordingly, any presumed error was harmless, and this claim lacks merit.
Because we reject appellant's instructional error claim on the merits, we need not address whether appellant forfeited the claim by failing to raise it below.
C. Appellant forfeited his claims that the trial court violated the prohibition against dual use of facts at sentencing. In any event, no such error occurred.
Appellant contends the trial court's reliance on several of the aggravating factors to sentence him to the upper term violated the prohibition against dual use of facts. Appellant forfeited this claim by failing to object at sentencing. In any event, we conclude error did not occur, and appellant was properly sentenced.
1. Background
At sentencing, the trial court reviewed the five factors in aggravation found true by the jury, and stated it agreed with their findings. It then elected to impose the upper term on count 1, stating: "So taking into consideration[] the various factors in mitigation and aggravation, the Court's going to find that the appropriate term at this time is the upper term of eight years."
2. The claims are forfeited.
As a threshold matter, we agree with respondent that appellant forfeited this claim by failing to raise it below. In People v. Scott, our high court expressly held that forfeiture applies "to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott) (italics added); see also People v. De Soto (1997) 54 Cal.App.4th 1, 7-9; People v. Erdelen (1996) 46 Cal.App.4th 86, 90-91.)
Appellant contends that forfeiture is inapplicable here, because under section 1170 as amended by Senate Bill No. 567, the jury must determine whether the factors in aggravation apply. But nothing in section 1170 requires the trial court to accept the jury's findings, or impose an upper term based on those findings. Scott's reasoning is still applicable-a defendant must object to preserve the issue on appeal, because "[r]outine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Scott, supra, 9 Cal.4th at p. 353.) Accordingly, because appellant did not object at sentencing to the imposition of the upper term based on an impermissible dual use of facts, the claim is forfeited.
3. Appellant was properly sentenced.
Even assuming appellant's claims were not forfeited, we would still conclude they lack merit. The prohibition against dual use of facts at sentencing is set forth in Rule 4.420(h), which states: "A fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term." As our high court explained in Scott: "Although a single factor may be relevant to more than one sentencing choice, such dual or overlapping use is prohibited to some extent. For example, the court generally cannot use a single fact both to aggravate the base term and to impose an enhancement, nor may it use a fact constituting an element of the offense either to aggravate or to enhance a sentence." (Scott, supra, 9 Cal.4th at p. 350.)
Appellant contends the trial court's reliance on several of the factors in aggravation violated this prohibition. First, he argues the factors set forth in Rule 4.421(a)(1) (great violence) and Rule 4.421(a)(3) (vulnerable victim) overlapped with the elements of battery by a prisoner on a nonprisoner (count 1). We disagree. The elements of that offense are: (1) the defendant willfully touched the victim in a harmful or offensive manner; (2) the defendant was serving a sentence in a state prison; and (3) the victim was not serving a sentence in state prison. (§ 4501.5; CALCRIM No. 2723.) Contrary to appellant's claim, great violence and the vulnerability of the victim are not elements of the offense or otherwise "inherent to the charge." Battery by a prisoner on a nonprisoner merely requires harmful or offensive touching, and a victim is not inherently vulnerable because he or she is not in custody.
Next, appellant claims the factor set forth in Rule 4.421(b)(3) (prior prison term) overlapped with the elements of battery by a prisoner on a nonprisoner because appellant's custody in prison was an element of the offense. However, the evidence clearly established appellant served multiple prior prison terms. Reliance on this factor was not necessarily based on the prison term appellant was serving at the time of the offense.
Finally, appellant argues the factors set forth in Rule 4.421(b)(1) (history of violent conduct) and Rule 4.421(b)(2) (prior convictions are numerous or of increasing seriousness), overlapped with the prior strike allegations. But appellant's criminal history extended well beyond his prior strike convictions. In any event, it is "well established that the Three Strikes law is not an enhancement; it is an alternative sentencing scheme for the current offense." (People v. Burke (2023) 89 Cal.App.5th 237, 243.) Thus, the prohibition against using a single fact to "aggravate the base term and to impose an enhancement" is inapplicable here. (Scott, supra, 9 Cal.4th at p. 350.) Therefore, the trial court did not violate the prohibition against dual use of facts at sentencing, and this claim lacks merit.
II. The Trial Court Properly Conducted the In Camera Pitchess Review, and its Ruling was not an Abuse of Discretion.
Appellant requests that we independently review the in camera Pitchess proceedings to determine whether the trial court employed proper procedures and whether additional discoverable materials exist. Respondent does not object.
A. Background
Before trial, appellant filed a Pitchess motion pursuant to Evidence Code section 1043 seeking police personnel records. The motion addressed records for three correctional officers, but appellant's request for review on appeal is limited to Rivera. The motion sought records relating to dishonesty, violations of constitutional rights, fabrication of reasonable suspicion or probable cause, and conduct involving moral turpitude. The trial court granted appellant's request for an in camera review as related to evidence of dishonesty and moral turpitude only.
The in camera hearing was conducted with a court reporter. Two custodians of records from the State of California were sworn and testified. Each custodian confirmed they located and brought all potentially responsive records. Following the in camera hearing, the trial court stated it had reviewed all records, regardless of their age, and found there was nothing to disclose.
B. Standard of Review
" '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.' [Citation.] A defendant is entitled to discovery of relevant information from the confidential records upon a showing of good cause, which 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." '" (People v. Yearwood (2013) 213 Cal.App.4th 161, 180.)
"If the trial court concludes the defendant has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion." (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) "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.'" (Ibid.) If the trial court finds good cause and conducts an in camera review, it must make a record of the documents it examined to permit future appellate review. (Id. at p. 1229.) "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.)
C. The trial court did not abuse its discretion.
We have reviewed the record of the in camera proceeding. The trial court complied with the procedural requirements of a Pitchess hearing. A court reporter was present, and the custodians of records were sworn prior to testifying and brought all potentially responsive records and submitted them for review. (People v. Yearwood, supra, 213 Cal.App.4th at p. 180.)
We have reviewed the sealed personnel file for Rivera, and conclude no additional material was subject to disclosure. None of these materials involved dishonesty or conduct involving moral turpitude. Accordingly, the trial court did not abuse its discretion in declining to disclose any records.
Appellant contends that in reviewing the trial court's ruling, we should retroactively apply changes to the scope of Pitchess disclosure made by Senate Bill No. 16 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 402, § 1). Senate Bill No. 16 became effective January 1, 2022, after the trial court ruled on appellant's Pitchess motion, but prior to trial. As is pertinent here, Senate Bill No. 16 deleted the five-year time limit on incidents subject to disclosure from former Evidence Code section 1045, subdivision (b). We need not decide whether Senate Bill No. 16 applies retroactively because it would not impact our conclusion regarding the trial court's ruling on the Pitchess motion. The record is clear that the custodians searched for and provided every possible responsive record, regardless of age, and the trial court reviewed all records produced, regardless of age.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FRANSON, J. SNAUFFER, J.