Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA026167, Christopher G. Estes and Alan Rosenfield, Judges.
Jonathan B. Steiner and Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, Chung L. Mar, and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Appellant Justin Ritchie appeals from convictions for residential burglary (Pen. Code, § 459, count 1), grand theft firearm (§ 487, subd. (d)(2), counts 2-4), ex-felon in possession of a firearm (§ 12021, subd. (a)(1), count 5), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), count 6). Before jury trial, appellant waived his constitutional rights and admitted he had a previous felony conviction which qualified as a strike under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and as a serious felony (§ 667, subd. (a)). He also admitted he served a separate prison term for a prior conviction. (§ 667.5, subd. (b).)
All further undesignated statutory references are to the Penal Code unless otherwise indicated.
Several issues are raised on appeal. First, appellant contends the trial court erred in concluding a prima facie case for discovery had not been made pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Second, he contends he should only have been convicted of one count of grand theft firearm, an issue conceded by respondent. Third, he contends the court erred in imposing an additional term of imprisonment on count 5, ex-felon in possession of a firearm, arguing that section 654 should have precluded the additional term. Finally, he challenges imposition of the upper term on count 1 pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
In our original opinion, filed January 25, 2006, we concluded that the trial court erred by failing to conduct an in camera hearing to review a deputy sheriff’s personnel file to determine whether relevant complaints of misconduct should be disclosed to the defense. We also found that appellant was improperly convicted of three counts of grand theft firearm. We disagreed with appellant’s other contentions. We affirmed the convictions for counts 1, 2, and 5, and reversed two of the three grand theft firearm convictions, counts 3 and 4 and the conviction for count 6. We remanded the matter for the trial court to conduct an in camera hearing pursuant to Evidence Code section 1045, with directions based on the outcome of the hearing.
On February 20, 2007, the United States Supreme Court granted appellant’s writ of certiorari, and remanded the matter to this court for further reconsideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). In the interim, our Supreme Court filed its second opinion in People v. Black (2007) 41 Cal.4th 799 (Black II), which followed the Cunningham court’s decision vacating People v. Black (2005) 35 Cal.4th 1238. We allowed the parties to file supplemental briefs to discuss the impact, if any, of Cunningham and Black II.
Once again, we reverse count 6 and remand the matter to the trial court for the purpose of conducting an in camera hearing pursuant to Evidence Code section 1045. We also direct the trial court to dismiss counts 3 and 4. We otherwise affirm the judgment.
We make no substantive changes in the opinion, with the exception of the discussion of appellant’s sentence. (See section IV, post.)
FACTS
On February 28, 2003, the Moisan residence at 1845 East Avenue Q-12 in Palmdale was burglarized. Among the items taken were guns from a locked closet, including a Mossberg 12-gauge shotgun, a Yugoslavian-made semiautomatic rifle, a Romanian-made semiautomatic rifle, a Beretta .22-calibur handgun, and a pellet rifle. Other items taken included jewelry, stereo components, an X-Box game, and compact discs.
Sarah Wooden, Mr. Moisan’s live-in fiancé, had been introduced to appellant by a neighbor, Bonnie Link, in January 2003. Sarah had spoken to appellant a number of times between then and the day of the burglary. The day before the burglary, appellant visited with Wooden. He learned from Sarah that she and her children would be going to Seal Beach for two days to visit relatives. Upon his inquiry, she said that Mr. Moisan would be joining her there when he got off work.
Maria C., who lived across the street from the Moisan residence, and her friend Denise B., saw the end of the burglary in progress. They saw a truck parked in front of the residence and a man and a woman come from Moisan’s porch and load trash bags, duffle bags, and other items into the bed of the truck.
After the truck left, Maria, her sister Juana, and Denise left to take Denise home. Driving by the Moisan residence, they noticed the front door was open and there were items on the floor inside. They became concerned and they went to a neighbor, Bonnie, to report the matter. Bonnie’s son went next door to the Moisan residence to investigate. When he returned, Bonnie called the police, who responded and took statements. While Juana and Maria were on the way to Denise’s home, they saw the same truck about a block away and they notified the police.
Deputy Sheriff Jonathan Hoyt and two other officers were involved in the investigation. They went to a house located at 1650 East Avenue R-3. Hoyt approached the side of the house while the other two officers went to the front. Hoyt heard one deputy’s voice at the front and saw appellant open a side window and look out. Hoyt drew his pistol and ordered appellant to raise his hands. When appellant did so, Hoyt saw a baggie drop from appellant’s hand. It turned out that the baggie contained a usable amount of methamphetamine. In one of the bedrooms inside the residence, the items taken from the Moisan residence were discovered including the guns.
DISCUSSION
I. Denial of the Pitchess Motion
Appellant moved for discovery of police personnel records concerning complaints and findings against Deputy Jonathan Hoyt relating to acts of falsifying arrest/police reports, of moral turpitude, and of excessive force. At this point, appellant does not challenge denial of his Pitchess motion with regard to discovery of acts involving excessive force. His concern is for information which may have been developed in connection with count 6, possession of methamphetamine.
In order to trigger an in camera hearing pursuant to Evidence Code section 1043, a defendant must present evidence sufficient to demonstrate good cause, which is measured by “‘relatively relaxed standards.’” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016, 1027.) A declaration from defense counsel establishes good cause when it proposes a defense to the pending charges and articulates how the discovery sought may lead to relevant evidence. Such a factual scenario may consist of a denial of the facts asserted in the police report. (Id. at pp. 1024, 1027.) A trial court’s ruling on a Pitchess motion is reviewed for abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221.)
Here, similar to the declaration from defense counsel in Warrick, appellant’s trial counsel presented a declaration denying that appellant had possessed a baggie and that appellant had dropped a baggie when Hoyt had ordered him to put up his hands. Pursuant to Warrick, that was sufficient to establish good cause. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1027.) Thus, the trial court erred in finding no good cause existed to trigger a Pitchess hearing.
The conviction of possession of methamphetamine must be conditionally reversed and the matter remanded for the trial court to conduct an in camera review. If, after the review, the trial court finds no information to be disclosed to the defense, the conviction is to be reinstated. If material is discovered which may lead to admissible evidence, then a new trial should be afforded to appellant on count 6.
II. Counts 2 Through 4
Appellant contends he was improperly convicted of three separate counts of grand theft firearm, and respondent concedes the point. Items taken at the same time and as part of the same transaction constitute but one theft. (People v. Nor Woods (1951) 37 Cal.2d 584, 586-587.) Accordingly, two of the convictions must be reversed and the counts relating to those convictions dismissed.
III. Felon in Possession of a Firearm
The trial court selected count 1 as the base count and sentenced appellant to the upper term of six years, doubled it, and added five more years for the prior conviction, for a total of 17 years for the burglary. Additionally, it imposed four-year terms for each of the three grand theft counts, but finding they resulted from the burglary, it stayed sentence on each of those terms. The court imposed concurrent terms of 16 months each for count 5, felon in possession of a firearm, and count 6, possession of a controlled substance.
Appellant contends that the court should have stayed sentence on count 5, as it did with regard to counts 2 through 4. He argues that if his possession of the guns were incidental to the burglary resulting in application of section 654 to counts 2 through 4, the same result must apply to count 5. We disagree.
Section 654 prohibits multiple punishments for offenses arising from a single act or indivisible course of conduct. The determination is made by the court at sentencing by reviewing the evidence relating to the intent and objective of the actor. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Perez (1979) 23 Cal.3d 545, 551.) For us to affirm the trial court’s determination, there must be substantial evidence to support a finding that the defendant formed a separate intent or objective for each offense for which he was sentenced. (People v. Coleman (1989) 48 Cal.3d 112, 162.) That evidence exists here.
We agree with the trial court’s application of section 654 to counts 2 through 4. In order to have been convicted of burglary, the jury must have determined that appellant had the intent to commit larceny when he entered the building. And the evidence supports that finding. Appellant learned that the occupants of the house would be away for at least two days and, during that time, he and at least one other colleague entered the house and took various items, including the guns. It is appropriate to infer that it was appellant’s intent upon entering the premises to take only those things of value he encountered. But there is no evidence to suggest that appellant knew guns were present on the premises before he broke in. It is appellant’s status which distinguishes this count from counts 2 through 4. Being a convicted felon, it was unlawful for him to be in possession of firearms. It was only at the moment that appellant first came upon the firearms that he could have formed the intent to possess them, which, if he acted on his intent, would trigger the crime of felon in possession of a firearm.
IV. Upper Term Sentence for Burglary
Appellant contends that the imposition of an upper term sentence for the burglary conviction is in violation of his Sixth Amendment right to a jury trial under Blakely. We disagree.
The Attorney General argues appellant forfeited his claim by failing to object in the trial court. We agree with appellant that the trial court attempted to sentence appellant in conformity with Blakely despite the lack of a defense objection. Thus, whether the court properly applied Blakely is appropriately before us for review. (See People v. Abbott (1956) 47 Cal.2d 362, 372-373.)
In imposing the upper term on count 1, the trial court relied on appellant’s prior conviction for robbery, and the circumstances related to the conviction (that he had served a prior prison term, was on parole at the time the crime was committed, and had performed poorly on parole).
In Cunningham, the court recognized that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at p. 868].) Although appellant contends the other “recidivist” factors must be presented to a jury, Black II makes it clear that such a reading of the prior conviction exception is too narrow. The court may also consider other issues related to the conviction that may be determined by examining the records of the conviction. (Black II, supra, 41 Cal.4th at p. 819.) We conclude the trial court properly sentenced appellant to the upper term on count 1.
DISPOSITION
The conviction for possession of a controlled substance, count 6, is reversed and we remand for the trial court to conduct an in camera examination of the personnel records of Deputy Hoyt pursuant to Evidence Code section 1045 and relevant case authority. If there is no discoverable information, or if there is discoverable information and appellant cannot establish he was prejudiced by the denial of discovery, the conviction shall be reinstated. If appellant can establish he was prejudiced by the denial of discovery, the trial court shall order a new trial on count 6. The convictions for grand theft firearm in counts 3 and 4 are reversed, and those counts are to be stricken from the abstract of judgment. In all other respects, the judgment is affirmed. Upon completion of the proceedings on count 6, the trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections.
We concur: EPSTEIN, P. J., WILLHITE, J.