Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF124525A. Michael G. Bush, Judge.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Kathleen A. Mckenna, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Cornell, J., and Hill, J.
STATEMENT OF THE CASE
On September 9, 2008, appellant, Danny Shaun Gibbs, was charged in an information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count one), vehicle burglary (§ 460, subd. (b), count two), petty theft with a prior qualifying conviction (§ 666, count three), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count four). The information also alleged two prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise noted, all statutory references are to the Penal Code.
On November 18, 2008, appellant filed a motion pursuant to the Evidence Code and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether there were discoverable evidence of past complaints against Deputy Joshua Shotwell for acts indicating dishonesty, false arrest, illegal detention, or fabrication of charges or evidence. On December 12, 2008, the trial court conducted its in camera review of Deputy Shotwell’s personnel records and denied appellant’s motion.
The prosecutor’s motion to dismiss count four was granted on February 9, 2009. At the conclusion of a jury trial on February 11, 2009, appellant was found guilty of the remaining counts. In a bifurcated proceeding, appellant admitted the enhancements.
On March 27, 2009, the trial court sentenced appellant to the midterm of three years on count one and to a consecutive term on count two of eight months. The court stayed appellant’s sentence on count three pursuant to section 654. The court imposed additional consecutive terms of one year for each enhancement for a total prison term of five years eight months. Appellant seeks independent review of the trial court’s ruling on his Pitchess motion.
FACTS
Jeremy Myers, his brother Jonathan, and his friend Julian went in Myers’s F-150 Ford pickup truck to fish on the Kern River. After fishing for a time, they heard a loud crashing sound of metal and glass. They ran over to the pickup truck. Myers saw appellant grabbing things out of the truck. Although Myers had locked the truck, both doors were open and there was a lot of broken glass.
Myers saw appellant hunched over, grabbing things out of the console. Appellant was with two other people, who left in another vehicle. Appellant, who started dropping things, was carrying a sledgehammer that he was using to try to hit Myers’s brother. Myers was trying to calm appellant down. Appellant was pleading for them to let him go. Myers’s brother was holding appellant down. Appellant broke free and came at Myers with the sledgehammer. They wrestled appellant to the ground. Appellant maintained control of the sledgehammer and continued to struggle until sheriff’s deputies arrived and arrested him.
PITCHESS REVIEW
Appellant asks this court to independently review the transcript of the in camera Pitchess proceeding and the materials and documents submitted to the court to determine whether the court properly excluded discovery of Deputy Shotwell’s personnel records. After reviewing the transcripts and documents in question, we conclude the trial court properly excluded this information.
The statutory scheme for Pitchess motions is contained in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7, and 832.8. When a defendant seeks discovery from a peace officer’s personnel records, he or she must file a written motion that satisfies certain prerequisites and makes a preliminary showing of good cause. If the trial court determines that good cause has been established, the custodian of records brings to court all documents that are “‘potentially relevant’ to the defendant’s motion.” (People v. Mooc (2001)26 Cal.4th 1216, 1226.) The trial court examines these documents in camera and, subject to certain limitations, discloses to the defendant “‘such information [that] is relevant to the subject matter involved in the pending litigation.’ [Citation.]” (Ibid.) The ruling on a Pitchess motion is reviewed for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330 (Hughes).)
The record in this case is adequate to permit meaningful appellate review. It contains a full transcript of the December 12, 2008, in camera Pitchess proceeding and a certified copy of police records examined by the trial court. (People v. Prince (2007) 40 Cal.4th 1179, 1285 (Prince); Hughes, supra, 27 Cal.4th at p. 330.)
Having independently reviewed the transcript of the Pitchess proceeding and the records examined by the court and submitted under seal, we conclude that the court did not abuse its discretion in determining that none of the records were relevant to the issues presented in this case. Accordingly, we uphold the ruling on the Pitchess motion. (Prince, supra, 40 Cal.4th at p. 1286; Hughes, supra, 27 Cal.4th at p. 330.)
The Legislature amended section 4019 effective January 25, 2010, to provide that any person who is not required to register as a sex offender, and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.
DISPOSITION
The judgment is affirmed.
This court, in its “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010, ordered that in pending appeals in which the appellant is arguably entitled to additional conduct credit under the amendment, we would deem raised, without additional briefing, the contention that prospective-only application of the amendment violates the intent of the Legislature and equal protection principles. We deem these contentions raised here.
We explained in the recent case of People v. Rodriguez (March 1, 2010, F057533) __ Cal.App.4th __ [pp. 5-12], however, that the amendment is not presumed to operate retroactively and does not violate equal protection under law. Appellant is, therefore, not entitled to additional conduct credit under the amendment to section 4019. Section 1192.7, subdivision (c)(23) makes it a serious felony for “any felony in which the defendant personally used a dangerous or deadly weapon.” It appears that although appellant’s long criminal history does not include a disqualifying prior conviction for purposes of applying section 4019 custody credits, appellant’s current conviction for assault with a deadly weapon involved the use of a sledgehammer as a deadly weapon and he would not qualify for section 4019 custody credits even if they were applied retroactively.