Filed 7/11/16 P. v. Valenzuela CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E062651

v.                                                                      (Super.Ct.No. INF1200458)

RICHARD ANDREW VALENZUELA,                                              OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge.

Affirmed in part with directions; reversed in part, affirmed as modified.

         Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L.

Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.




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       In Count 2, a jury found defendant and appellant Richard Andrew Valenzuela

guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2)),1 and found true the

allegation that defendant personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd.

(c)(8)). In Count 3, the jury found defendant guilty of discharging a firearm in a grossly

negligent manner which could result in injury or death to a person (§ 246.3, subd. (a)),

and found true the allegation defendant personally used a firearm (§§ 667, subd. (a),

1192.7, subd. (c)(8)). In Count 4, the jury found defendant guilty of burglary (§ 459),

and found true the allegation defendant used a deadly and dangerous weapon (§§ 12022,

subd. (b)(1), 1192.7, subd. (c)(23)).

       In Count 5, the jury found defendant guilty of preventing or dissuading a victim

of a crime from causing a complaint, information, or probation or parole violation from

being sought or prosecuted (§ 136.1, subd. (b)(2)), and found true the allegation

defendant used a deadly and dangerous weapon (§§ 12022, subd. (b)(1), 1192.7, subd.

(c)(23)). In Count 7, the jury found defendant guilty of drawing or exhibiting a deadly

weapon, other than a firearm, in a rude, angry, or threatening manner or unlawfully

using the weapon in a fight or quarrel. (§ 417, subd. (a)(1).)

       In Count 8, the jury found defendant guilty of shooting at an inhabited dwelling

house (§ 246), and found true the allegation that defendant personally used a firearm

(§§ 667, subd. (a), 1192.7, subd. (c)(8)). In Count 9, the jury found defendant guilty of

assault with a firearm (§ 245, subd. (a)(2)), and found true the allegation that defendant

       1 All subsequent statutory references will be to the Penal Code unless otherwise
indicated.


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personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)). In Count 10, the

jury found defendant guilty of preventing or dissuading a victim of a crime from

causing a complaint, information, or probation or parole violation from being sought or

prosecuted (§ 136.1, subd. (b)(2)), and found true the allegation defendant used a

firearm in the commission of the offense (§ 12022, subd. (a)(1)).2

       The trial court found true the allegations that defendant suffered three prior first-

degree burglary (§ 459) convictions in Riverside County case No. INF059844. The

court concluded those three convictions qualified as three prior strike convictions

(§§ 667, subds. (c)&(e)(1), 1170.12); three prior serious felonies (§ 667, subd. (a)); and

one prison prior (§ 667.5, subd. (b)). The court sentenced defendant to prison for a

determinate term of 66 years and an indeterminate term of 83 years to life.

       First, defendant requests this court independently review the sealed record of the

in-camera Pitchess3 hearing, to determine if the trial court erred in denying defendant’s

Pitchess motion. The People support defendant’s request. Second, defendant asserts

the trial court erred by imposing three separate five-year prison terms for the prior

serious felony convictions (§ 667, subd. (a)). The People support defendant’s argument.

Third, defendant contends the trial court erred by staying, rather than striking, the one-

year sentence for his prison prior (§ 667.5, subd. (b)). The People concede defendant is

correct. Fourth, defendant asserts the parole revocation fine (§ 1202.45, subds. (a)&(c))

       2 The trial court granted defendant’s motion for judgment of acquittal (§ 1118.1)
as to Counts 1, 6, and 11.

       3   Pitchess v. Superior Court (1974) 11 Cal.3d 531.


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should be modified to match the restitution fine (§ 1202.4, subd. (b)). The People

concede defendant is correct. Fifth, defendant asserts this court should order the trial

court to correct clerical errors in the abstract of judgment. The People concede

defendant is correct. We affirm the judgment with directions.

                    FACTUAL AND PROCEDURAL HISTORY

       In December 2011 defendant and LaPrea Floyd had a sexual relationship. Floyd

resided in Desert Hot Springs. On December 10, 2011, Floyd argued with defendant at

her house. Defendant then physically fought with Floyd’s brother inside the house; the

fight moved to outside the house. As Floyd and her sister joined the fight against

defendant, defendant ran toward the desert. Defendant returned to Floyd’s street with a

gun. Defendant fired the gun down the street, toward Floyd, her family, and her friends,

who were outside. Floyd’s mother called 911. Floyd ended her relationship with

defendant.

       In May 2012 Floyd and her boyfriend were asleep in her bedroom. Floyd awoke

to defendant at her bedroom door holding one of her kitchen knives. Defendant asked

where Floyd’s two-year-old son was. Floyd screamed for her brother. Defendant

fought with Floyd’s brother. Defendant ran out the front door. Floyd called 911.

       On June 6, 2012, Floyd and her boyfriend were asleep in her bedroom. Floyd

awoke to defendant firing approximately six gunshots at her bedroom window. Floyd

called 911.




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                                      DISCUSSION

       A.     PITCHESS HEARING

              1.     PROCEDURAL HISTORY

       Prior to trial, defendant filed a Pitchess motion to discover material related to

dishonesty in the personnel file of City of Desert Hot Springs Police Officer Scott Field.

The attorney for the City of Desert Hot Springs agreed to an in-camera review of the

officer’s personnel file. At the in-camera review, the custodian of records for the City

of Desert Hot Springs provided Officer Field’s personnel file. The trial court reviewed

the file and spoke with the custodian of records. The trial court found no information in

the file to disclose to the defense. The trial court informed defendant’s trial counsel

there was no information to disclose.

              2.     ANALYSIS

       Defendant requests this court review the sealed record of the trial court’s in-

camera Pitchess proceedings to determine if the trial court followed the proper

procedures, and whether it erred by not ordering information be disclosed to the

defense. The People support defendant’s contention.

       “Pitchess, supra, 11 Cal.3d 531, and its statutory progeny are based on the

premise that evidence contained in a law enforcement officer’s personnel file may be

relevant to an accused’s criminal defense and that to withhold such relevant evidence

from the defendant would violate the accused’s due process right to a fair trial. Pitchess

and Evidence Code sections 1043 through 1047 also recognize that the officer in

question has a strong privacy interest in his or her personnel records and that such


                                             5
records should not be disclosed unnecessarily. Accordingly, both Pitchess and the

statutory scheme codifying Pitchess require the intervention of a neutral trial judge, who

examines the personnel records in camera, away from the eyes of either party, and

orders disclosed to the defendant only those records that are found both relevant and

otherwise in compliance with statutory limitations.” (People v. Mooc (2001) 26 Cal.4th

1216, 1227.)

       We have reviewed the sealed reporter’s transcript of the in-camera Pitchess

proceedings and conclude the proper procedures were followed. Further, our review of

the record reflects the trial court did not abuse its discretion in concluding there were no

discoverable matters with respect to Officer Field. (See People v. Hughes (2002) 27

Cal.4th 287, 330 [a ruling on a Pitchess motion is reviewed for an abuse of discretion].)

In sum, the trial court did not err.

       B.      PRIOR SERIOUS FELONY SENTENCE

               1.     PROCEDURAL HISTORY

       The trial court imposed three five-year prison terms for defendant’s three prior

serious felony convictions, which all resulted from Riverside County case No.

INF059844.

               2.     CONTENTIONS

       Defendant contends the trial court erred by imposing three separate five-year

prison terms for the three prior serious felony convictions (§ 667, subd. (a)) because the

prior convictions were incurred in a single prior case. The People concede defendant is




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correct and assert defendant’s Three Strikes sentence for Counts 2 and 9 must also be

modified.

              3.     PRIOR SERIOUS FELONIES

       A consecutive five-year prison term must be imposed for each prior serious

felony conviction that was “brought and tried separately.” (§ 667, subd. (a)(1).) Prior

convictions arising from a single complaint are “not brought separately within the

meaning of section 667(a)(1).” (People v. Wiley (1995) 9 Cal.4th 580, 592.)

       Defendant’s three prior serious felonies were all alleged to be part of a single

case—Riverside County case No. INF059844. When the trial court found the prior

conviction allegations to be true it said, “[T]he 969(b) packet does establish to my

satisfaction that [defendant] has been convicted of three counts of first degree burglary,

as stated in INF059844 . . . .” Given that the three prior serious felonies were part of a

single prior case, they were not “brought and tried separately.”

       The “brought and tried separately” requirement in section 667 subdivision (a)(1)

is an element of the enhancement. (People v. Jones (2015) 236 Cal.App.4th 1411,

1416.) If “multiple serious felonies were proven in a single prior proceeding, the People

cannot prove more than one such enhancement exists.” (Ibid.) Accordingly, the finding

that there were three prior serious felony convictions, rather than one, was error. As

such, two of the prior serious felony findings and sentences (§ 667, subd. (a)) must be

vacated.




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              4.     THREE STRIKES

                     a)     Procedural History

       For Count 2 (§ 245, subd. (a)(2)), the trial court added 15 years for the three prior

serious felony convictions (§ 667, subd. (a)). The trial court did the same thing for

Counts 4, 5, 8, and 9. The 15-year sentences in Count 5 and 8 were stayed.

                     b)     Analysis

       The People contend the trial court’s error concerning the serious felonies affected

defendant’s Three Strike sentences in Counts 2 and 9.

       “Under the Three Strikes law, section 667(a) enhancements are to be applied

individually to each count of a third strike sentence.” (People v. Williams (2004) 34

Cal.4th 397, 405.) As explained ante, there should only be one prior serious felony

enhancement (§ 667, subd. (a)). As a result, two of the three prior serious felony

sentences in Count 2 must be vacated, thereby reducing the determinate term on Count

2 by 10 years. Additionally, two of the three prior serious felony sentences (§ 667,

subd. (a)) in Counts 4, 5, 8, and 9 must be vacated, thereby reducing the determinate

terms in those counts by 10 years each.

       C.     PRISON PRIOR

       Third, defendant contends the trial court erred by staying, rather than striking, the

one-year sentence for his prison prior (§ 667.5, subd. (b)) because the prior serious

felony (§ 667, subd. (a)) and the prison prior (§ 667.5, subd. (b)) were both derived

from a single offense. The People concede defendant is correct, but assert the trial court

should be given the option of imposing or striking the sentence.


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       In People v. Jones, our Supreme Court concluded the trial court erred by

requiring the defendant to serve a one-year prison term for a prison prior (§ 667.5, subd.

(b)) that was derived from the same prior offense as the defendant’s prior serious felony

(§ 667, subd. (a)). The Supreme Court directed the trial court to strike the one-year

prison prior sentence because only the greater of the two sentences could be imposed.

(People v. Jones (1993) 5 Cal.4th 1142, 1150-1153.)

       In People v. Lopez, this court determined that the Jones court “did not actually

discuss whether striking the unused [prison prior] enhancement finding was the

appropriate remedy,” and thus the Jones case is not authority on the issue. (People v.

Lopez (2004) 119 Cal.App.4th 355, 364.) This court analyzed the “strike versus stay”

issue and concluded staying the prison prior sentence is the appropriate solution when

the one-year sentence is barred due to the five-year sentence being derived from the

same prior crime. (Id. at pp. 364-365.)

       Lopez has been followed by the Second District, Division Seven, Court of

Appeal (People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9); however, the Fourth

District, Division One, Court of Appeal concluded striking a one-year prison prior

enhancement is the appropriate solution, under Jones (People v. Perez (2011) 195

Cal.App.4th 801, 805.) We elect to follow the precedent we set in Lopez, and therefore

conclude the trial court did not err by staying the one-year sentence for defendant’s

prison prior.

       However, because we have now vacated two of the prior serious felony findings

(§ 667, subd. (a)), the prison prior sentence (§ 667.5, subd. (b)) could properly be


                                             9
imposed—the prison prior would not necessarily be the same offense as the serious

felony that remains. So the trial court did not err, but due to the changes in the prior

serious felony (§ 667, subd. (a)) sentences, we will permit the trial court to exercise its

discretion in whether it chooses to impose the one-year sentence for the prison prior.

       D.     PAROLE REVOCATION FINE

       Defendant contends the $1,920 parole revocation fine (§ 1202.45, subds. (a)&(c))

should be modified to match the $300 restitution fine (§ 1202.4, subd. (b)). The People

concede defendant is correct.

       Section 1202.45, subdivision (a), provides, “In every case where a person is

convicted of a crime and his or her sentence includes a period of parole, the court shall,

at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,

assess an additional parole revocation restitution fine in the same amount as that

imposed pursuant to subdivision (b) of Section 1202.4.”

       The trial court erred by imposing a parole revocation fine (§ 1202.45) in excess

of the amount imposed for the restitution fine (§ 1202.4). Accordingly, we will order

the parole revocation fine (§ 1202.45) be modified to $300.

       E.     ABSTRACT OF JUDGMENT

       Defendant contends the abstract of judgment needs to be amended to reflect

(1) the court sentenced defendant to 10-year prison terms for the firearm enhancements

(§ 12022.5, subd. (a)) in Counts 2 and 9—not 15 years to life and 15 years as the

abstract currently reads; (2) the court sentenced defendant to one year for the deadly and

dangerous weapon enhancement (§ 12022, subd. (b)(1)) in Count 4—not 15 years as the


                                             10
abstract currently reflects; and (3) the trial court awarded defendant credit of 1,018

days, calculated as 885 days of actual custody, plus 133 days of conduct credit

(§ 2933.1)—not zero credit as the abstract provides. The People support defendant’s

contention, but assert the credits should be 1,017 days.

        “Courts may correct clerical errors at any time, and appellate courts . . . that have

properly assumed jurisdiction of cases have ordered correction of abstracts of judgment

that did not accurately reflect the oral judgments of sentencing courts.” (People v.

Mitchell (2001) 26 Cal.4th 181, 185.)

        It appears in the abstract of judgment that the trial court clerk associated the 15-

year sentences for the prior serious felony convictions (§ 667, subd. (a)) with the

statutes for the various weapons enhancements. As a result, the weapons enhancement

statutes are listed with 15-year sentences for the three (five year) prior serious felony

convictions. For example, the abstract reflects the court imposed a 15-year sentence for

the dangerous weapon enhancement (§ 12022, subd. (b)(1)), as opposed to the prior

serious felonies (§ 667, subd. (a)). The trial court clerk needs to list both the prior

serious felony conviction sentences (§ 667, subd (a)) and the weapons enhancement

sentences, for each count, in the abstract of judgment.

        For Count 2: There is a five-year sentence for the prior serious felony conviction

(§ 667, subd. (a)), and a 10-year sentence for the firearm enhancement (§ 12022.5, subd.

(a)).




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        For Count 4: There is a five-year sentence for the prior serious felony conviction

(§ 667, subd. (a)), and a one-year sentence for the weapon enhancement (§ 12022, subd.

(b)(1)).

        For Count 9: There is a five-year sentence for the prior serious felony conviction

(§ 667, subd. (a)), and a 10-year sentence for the firearm enhancement (§ 12022.5, subd.

(a)).

        The enhancements for Counts 5 and 8 are listed as stayed (without prison terms

listed) in the abstract of judgment, and thus do not require correction.

        In regard to credits, the abstract of judgment is blank. The trial court said

defendant had 885 days of credit for time served and 133 days of conduct credit

(§ 2933, subd. (e)(1)4), which totals 1,018 days. The minute order reflects defendant

had 885 days of credit for time served and 132 days of conduct credit, which totals

1,017 days.

        Under section 2933.1, a person convicted of a violent felony (§ 667.5, subd.

(c)(8)) shall accrue no more than 15 percent conduct credit. Fifteen percent of 885 days

is 132.75 days. Fractions must be rounded down. (People v. Ramos (1996) 50

Cal.App.4th 810, 816.) Thus, defendant has 132 days of conduct credit and 885 days of




        4 The trial court cited section 2933, subdivision (e)(1), when discussing conduct
credits. Subdivision (e)(1) appeared in a prior version of section 2933, which was
effective only until September 30, 2011. Defendant’s earliest crime in this case was
committed in December 2011. Defendant was sentenced in November 2014. Thus, the
citation to subdivision (e)(1) appears to be an error.


                                             12
credit for time served, which totals 1,017 days. We will direct the trial court to amend

the abstract of judgment to reflect the foregoing credits.

                                          DISPOSITION

        The second and third prior serious felony findings (§ 667, subd. (a)) are vacated,

and the associated five-year prison terms are reversed. The parole revocation fine

(§ 1202.45) is modified to $300.

        The trial court is directed to:

        (1)    Dismiss the second and third prior serious felony allegations (§ 667, subd.

(a));

        (2)    Decide whether to impose a one-year sentence for the prison prior

(§ 667.5, subd. (b)); and

        (3)    Issue an amended abstract of judgment reflecting

               (i)     For Count 2, there is a five-year sentence for the prior serious

felony conviction (§ 667, subd. (a)), and a 10-year sentence for the firearm enhancement

(§ 12022.5, subd. (a));

               (ii)    For Count 4, there is a five-year sentence for the prior serious

felony conviction (§ 667, subd. (a)), and a one-year sentence for the weapon

enhancement (§ 12022, subd. (b)(1));

               (iii)   For Count 9, there is a five-year sentence for the prior serious

felony conviction (§ 667, subd. (a)), and a 10-year sentence for the firearm enhancement

(§ 12022.5, subd. (a));




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              (iv)   Defendant has 132 days of conduct credit (§ 2933.1) and 885 days

of credit for time served, which totals 1,017 days; and

              (v)    Any changes related to the trial court’s ruling on the prison prior

(§ 667.5, subd. (b)) issue.

       The trial court is directed forward a certified copy of the amended abstract to the

Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.) In all other

respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                          MILLER
                                                                                           J.


We concur:


HOLLENHORST
                        Acting P. J.


CODRINGTON
                                  J.




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