Opinion
B216387
12-01-2011
THE PEOPLE, Plaintiff and Respondent, v. CARVIN HALL, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA066212)
APPEAL from a judgment of the Superior Court of Los Angeles County, Stephanie Sautner, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
In a non-jury trial, defendant Carvin Hall was convicted of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and driving while having 0.08 percent or more by weight of alcohol in his blood (§ 23152, subd. (b)) with three prior convictions of violating section 23152, and was also convicted of driving with a suspended license (§ 14601.2, subd. (a)). He was sentenced to 16 months in state prison. He appeals from the judgment of conviction, contending: (1) the trial court erred in denying his Pitchess motion, and (2) he is entitled to additional credit under Penal Code section 4019.
All unspecified section references are to the Vehicle Code.
BACKGROUND
On September 12, 2007, defendant ran a red light on El Segundo Boulevard and struck a police vehicle driven by Hawthorne Police Officer Christina Moreno of the parking enforcement division. Officer Moreno had pulled into the intersection to make a left turn. An independent witness, Robert Justice, observed that the light in defendant's direction was solid red. After exiting her vehicle, Officer Moreno asked defendant if he was okay. Defendant did not respond.
Later, Officer Rodney Gonsalves of the Gardena Police Department observed the accident scene, and then interviewed defendant at the hospital emergency room. Defendant was complaining of neck and back pain. Defendant's eyes were red and glassy, his speech was slurred, and his breath smelled of alcohol. Officer Gonsalves asked appellant if he had been drinking. After first stating that he had not, defendant then said that he had had one glass of wine in the afternoon. After administering field sobriety tests, Officer Gonsalves believed that defendant was under the influence of alcohol. A sample of defendant's blood was taken. When analyzed, it showed a blood alcohol level of .19. A senior criminalist for the Los Angeles County Sheriff's Department, Amanda Davis, testified that a person with a blood alcohol level of .19 would be impaired in operating a motor vehicle.
Other evidence showed that in February 1988 and December 2000, defendant had been convicted of violating section 23152, subdivision (b), and that in March 2005 he was convicted of violating section 23152, subdivision (a).
DISCUSSION
I. Pitchess Motion
Defendant contends that the trial court erred in denying his motion for Pitchess discovery, without conducting an in camera hearing, relating to personnel records of Officer Gonsalves and another officer designated as "Officer C. Freeman." We disagree.
In his motion, defendant sought discovery of complaints against Officers Gonsalves and Freeman relating to, inter alia, racial bias, fabrication of charges and evidence, perjury, dishonesty, and writing of false police reports. In support of the request, defense counsel submitted a declaration in which she stated in relevant part that Officers Gonsalves and Freeman "made material misstatements as to their observations and investigation." According to defense counsel, Officer Gonsalves "allegedly took a statement from a Felipe Montellano. Gonsalves claims Montellano told him he saw Defendant Hall run a red light and collide into Moreno's car." But, defense counsel declared, "Montellano has denied ever making that statement to any police officer. Montellano will testify that he only heard the accident and rushed to the scene afterward; he never saw anything before the impact. The defense believes Officer Gonsalves is biased against [defendant] because he has arrested [defendant] for two prior alleged driving under the influence incidents."
In addition, defense counsel stated that "Officer C. Freeman . . . initially reported (in his police report dated September 19, 2007) that Officer Moreno was an associate factor in the cause of the accident. In his October 5, 2007 police report, Officer Freeman reported that he re-questioned Officer Moreno. Ultimately, Officer Freeman concluded, 'it would be unfair to assign her as an associate factor in violation of [Vehicle Code section] 2180(a) - Failure to yield.'"
Finally, according to defense counsel, defendant denied running a red light, causing the accident, and being under the influence at the time of the accident. Yet "Officer Gonsalves and Officer Freeman depict Hall as having been under the influence and having been responsible for the accident."
We find no abuse of discretion in the trial court's finding that this showing failed meet the good cause requirement for discovery of Officers Gonsalves' and Freeman's personnel records. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039 [trial court's ruling on Pitchess motion is reviewed for abuse of discretion].)
A criminal defendant has a limited right to discovery of peace officer personnel records and records of citizen complaints against peace officer personnel that are maintained pursuant to Penal Code section 832.5; such records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045. (Pen. Code, § 832.7; Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 318.) 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.' [Citation.]" (People v. Gaines (2009) 46 Cal.4th 172, 179.) Although the existence of good cause is measured by "'relatively relaxed standards'" (ibid.), the defendant must provide "'a plausible scenario . . . that might or could have occurred.' [Citation.] A scenario is plausible when it asserts specific misconduct that is both internally consistent and supports the proposed defense." (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71.)
Here, defendant did not dispute that his car collided with Officer Moreno's police vehicle. He did not dispute that, as Officer Gonsalves stated in his police report, defendant had a strong odor of alcohol on his breath at the hospital (detected by both the Officer and an attending physician), that his eyes were bloodshot and watery, and that his speech was slurred. He also did not dispute that in performing the finger to nose field sobriety test, he touched his upper lip four times, and that in the horizontal gaze nystagmus test his eyes showed maximum deviation. Finally, he did not dispute a blood test showed his blood alcohol level to be .19, more than twice the legal limit.
In light of these undisputed facts, "the trial court could reasonably conclude that defendant failed to demonstrate sufficient good cause insofar as defendant 'did not present a specific factual scenario that is plausible when read in light of the . . . undisputed circumstances.'" (People v. Sanderson (2010) 181 Cal.App.4th 1334, 1340, quoting People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) In other words, defendant failed to offer any factual account of his driving, the collision, his condition at the hospital, and the level of alcohol in his blood that "by any rational standard" (Thompson, supra, 141 Cal.App.4th at p. 1315) might plausibly suggest that he did not drive while under the influence of alcohol or did not drive with 0.08 percent or more by weight of alcohol in his blood. Thus, he failed to show good cause to discover any of the personnel records he sought.
In any event, even if the trial court erred, the error was not prejudicial in light of the overwhelming evidence at trial of defendant's guilt of violating section 23152, subdivisions (a) and (b). (People v. Samuels (2005) 36 Cal.4th 96, 119 [applying harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836, to assumed error in failing to find good cause for Pitchess discovery].)
II. Penal Code Section 4019
Defendant contends he is entitled to additional custody credits pursuant to the amendment to Penal Code section 4019. We reject appellant's argument that the amendment should apply retroactively.
The California Supreme Court has granted review in cases that address the issue, including our decision in People v. Eusebio (2010) 185 Cal.App.4th 990 (2d Dist., Div. Four), review granted September 22, 2010, S184957. (See also, e.g., People v. Landon (2010) 183 Cal.App.4th 1096 (1st Dist., Div. Two), review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049 (2d Dist., Div. One), review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354 (3d Dist.), review granted June 9, 2010, S181963; People v. Otubuah (2010) 184 Cal.App.4th 422 (4th Dist., Div. Two), review granted July 21, 2010, S184314; People v. Rodriguez (2010) 182 Cal.App.4th 535 (5th Dist.), review granted June 9, 2010, S181808.)
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Penal Code section 4019, subdivisions (b) and (c), provides that a criminal defendant may earn additional presentence conduct credit for performing assigned labor and complying with the penal institution's rules and regulations. In 2009, the Legislature passed Senate Bill No. 3X 18, which, among other things, amended subdivisions (b) and (c) of section 4019 to provide for the accrual of presentence credit at twice the previous rate, with certain exceptions. (See Pen. Code, § 4019, subds. (b) & (c), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Appellant contends he is entitled to additional conduct credits because the amendment to Penal Code section 4019 should apply retroactively. California courts are divided on whether the amendment applies retroactively or prospectively. We conclude that it does not apply retroactively and that appellant is not entitled to additional custody credits based on the amendment.
Section 3 of the Penal Code provides: "No part [of the Penal Code] is retroactive, unless expressly so declared." Thus, "'[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753.) "To ascertain whether a statute should be applied retroactively, legislative intent is the 'paramount' consideration." (People v. Nasalga (1996) 12 Cal.4th 784, 792.)
Where, as here, there is no express statement of legislative intent, we look to other factors to determine legislative intent. (In re Estrada (1965) 63 Cal.2d 740, 744.) In re Estrada addressed an amendment reducing the penalty for escape. The court held that the amendment applied retroactively, reasoning that "[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act." (Id. at p. 745.) We believe, however, that increasing the rate at which credits are accrued does not represent a legislative determination that a prior punishment was too severe.
We note that, elsewhere in Senate Bill No. 3X 18, the Legislature expressly provided for limited retroactive application of enhanced conduct credits for prison inmates who have completed training as firefighters after July 1, 2009. (See Pen. Code, § 2933.3, as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 41.) The Legislature thus demonstrated that it could, if it wished, provide for the amendment to section 4019 to have retroactive effect. Its failure to do so gives rise to the inference that it did not so intend. Finding no clear and compelling implication that the Legislature intended the amendment to apply retroactively, we conclude that the amendment applies prospectively and reject appellant's claim.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J. We concur:
EPSTEIN, P. J.
SUZUKAWA, J.