Filed 1/8/14 P. v. Daniels CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B246347

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA386514)
         v.

MELVIN ROY DANIELS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
William N. Sterling, Judge. Reversed with directions.
         Caneel C. Fraser, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback
II, Supervising Deputy Attorney General, and Stephanie C. Santoro, Deputy Attorney
General, for Plaintiff and Respondent.
                                             ——————————
       A jury convicted Melvin Roy Daniels of one count of sale of a controlled
substance and one count of possession for sale of a controlled substance. Daniels
appeals, contending that the trial court abused its discretion when it denied his motion for
discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess),
without conducting an in camera review of the requested police personnel records. We
conclude that the trial court abused its discretion.
                                     BACKGROUND
       An information charged Daniels with sale of a controlled substance (hydrocodone)
in violation of Health and Safety Code section 11352, subdivision (a) (count 1), and
possession for sale of controlled substances (clonazepam and hydrocodone) in violation
of Health and Safety Code section 11351 (count 2), both on June 3, 2011. The
information also alleged that Daniels had suffered three prior convictions, one of which
was a prior strike conviction. Daniels pleaded not guilty and denied the allegations.
       Daniels filed a Pitchess motion on November 30, 2011, requesting discovery of
complaints and other police personnel records concerning the County of Los Angeles
Sheriff’s Department (LASD) Deputy L. Carter, and relating to a wide range of
misconduct, including racial and other bias, coercive conduct, fabrication of evidence,
false arrest, perjury, writing false police reports, and planting evidence.
       Attached to the motion was a June 3, 2011 incident report, prepared by Deputy
Eric Tscharanyan. The report stated that in response to ongoing illegal street sales of
pharmaceuticals on 5th Street between Broadway and Spring, Deputy Tscharanyan and
his team conducted an undercover buy/bust operation in the area. Deputy Carter, acting
under cover, was given a prerecorded $5 bill and directed to buy prescription pills from
street dealers. She saw Daniels on the southeast corner of Spring and Broadway,
approached him, and asked if he had any pills. Daniels replied, “‘I got [V]icodins, two
for five dollars baby.’” Deputy Carter told him that was what she wanted and gave him
the $5 bill. Daniels reached into his right front pants pocket, removed a yellow
prescription pill bottle, took out two hydrocodone pills, and handed the pills to Deputy
Carter, who put the pills into her right front pants pocket and walked away. She told

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another deputy about the transaction, and Daniels was detained and arrested after Deputy
Carter identified him. Daniels told Deputy Tscharanyan, “‘I didn’t sell any pills, I just
changed five ones for a five dollar bill.’” After Daniels was transported and booked, the
prerecorded money was recovered from his right front pants pocket, and six additional
yellow pill bottles were recovered from his backpack; two contained clonazepam pills,
and one contained hydrocodone pills.
       The declaration by Daniels’s counsel accompanying the Pitchess motion stated:
“The police report states that the defendant, upon being approached by [D]eputy L.
Carter, was asked if he ‘had any pills.’ The report states that defendant then said that he
had [V]icodin, two for five dollars. [¶] Upon information and belief, the defendant never
stated that he had any pills and never reached into his pocket and removed pills. He
never gave the officer any narcotics. The whole case is built on this act which the
defendant states never happened and has been fabricated by deputy L. Carter.” (Boldface
omitted.)
       In written opposition, LASD contended that the declaration was insufficient and
the request for documents was overbroad.
       At a hearing on January 3, 2012, the trial court stated that its indicated ruling “was
to deny the Pitchess as it appears to the court to be a mere denial, and there is no
alternative factual scenario.” Counsel for Daniels argued that the declaration stated that
“my client indicated that . . . the whole transaction that the officer alleged took place was
untrue.” The prosecutor responded that there was no “positive scenario for misconduct.”
The trial court then denied the Pitchess motion, stating: “[I]t’s a mere denial. There’s no
plausible factual scenario explaining what he was doing there. The evidence that is not
denied is that he had other pills in his backpack. So under the case law, even though
there’s a very low threshold for Pitchess, this does not meet that very low threshold. The
Pitchess is denied.”1

       1 Daniels was present at the hearing but was removed from the courtroom after
interrupting and cursing at the judge. After considering multiple evaluation reports, the
trial court later found Daniels mentally incompetent to stand trial. After Daniels spent

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       After trial, the jury convicted Daniels on both counts. Daniels waived a jury trial
on the allegations and admitted the three prior convictions. The court struck the prior
strike conviction and two of the prior prison terms. The trial court sentenced Daniels to
six years in state prison on count 1, and stayed (pursuant to Pen. Code, § 654) a
concurrent sentence of four years on count 2. The court awarded presentence custody
credits and ordered Daniels to pay fines and fees.
       Daniels filed this timely appeal.
                                       DISCUSSION
I.     The trial court abused its discretion in denying the Pitchess motion.
       A defendant is entitled to discovery of a law enforcement officer’s confidential
personnel records containing information relevant to the defendant’s defense. (Pitchess,
supra, 11 Cal.3d at pp. 537–538.) The procedure requires a showing by the defendant of
good cause for the discovery, an in camera review of the records if good cause is shown,
and disclosure of information “relevant to the subject matter involved in the pending
litigation.” (Evid. Code, § 1045, subd. (a).) While the threshold for establishing good
cause is “‘relatively low,’” the defendant must “‘establish a plausible factual foundation’”
for his defense, by presenting “a specific factual scenario of officer misconduct that is
plausible when read in light of the pertinent documents.” (Warrick v. Superior Court
(2005) 35 Cal.4th 1011, 1025 (Warrick).) A sufficient scenario “is one that might or
could have occurred. Such a scenario is plausible because it presents an assertion of
specific police misconduct that is both internally consistent and supports the defense
proposed to the charges.” (Id. at p. 1026.) A denial of the facts described in the police
report, depending on the circumstances of the case, may establish a plausible factual
foundation for the defense. (Id. at pp. 1024–1025.) “A motion for discovery of peace
officer personnel records is ‘addressed solely to the sound discretion of the trial court.’”



three months in Patton State Hospital, and based on a report from the hospital, the court
found Daniels was competent to stand trial in September 2012, and trial began in
November 2012.

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(People v. Gill (1997) 60 Cal.App.4th 743, 749.) We therefore review the trial court’s
denial of the motion for an abuse of that discretion.
       In this case, the declaration from defense counsel stated that Daniels did not state
that he had pills, did not reach into his pocket, did not remove pills, and did not give the
deputy any narcotics. In addition, the declaration stated that the “act . . . never happened
and has been fabricated by deputy L. Carter.” This denial of the facts alleged in the
police report, accompanied by the allegation that the deputy fabricated the entire
scenario, is sufficient to constitute “a specific factual scenario of officer misconduct that
is plausible when read in light of the pertinent documents.” (Warrick, supra, 35 Cal.4th
at p. 1025.) Having asserted that Deputy Carter made material misstatements by
fabricating the events described in the police report, Daniels demonstrated that his
defense would be that he did not remove any pills from his pocket or give the deputy any
narcotics, thus meeting his burden to justify an in camera inspection of Deputy Carter’s
files with respect to acts of dishonesty. (People v. Hustead (1999) 74 Cal.App.4th 410,
416–417.)
       It was an abuse of discretion to deny the Pitchess motion. We therefore remand to
the trial court with directions to conduct a hearing on Daniels’s Pitchess motion. If there
is no discoverable information in the deputy’s personnel file, then the court shall reinstate
the judgment. If there is discoverable information and Daniels can establish that it was
admissible and that he was prejudiced by the denial of its discovery, then the trial court
shall order a new trial. If Daniels is unable to establish prejudice, then, again, the
judgment shall be reinstated. (People v. Wycoff (2008) 164 Cal.App.4th 410, 415.)
II.    The abstract of judgment must be corrected.
       At Daniels’s sentencing hearing the trial court ordered Daniels to serve the four
year sentence on count 2 concurrently, and stayed the sentence pursuant to Penal Code
section 254. However, the abstract of judgment does not reflect that the sentence on
count 2 is concurrent and stayed. “[T]he abstract of judgment is not itself the judgment
of conviction, and cannot prevail over the court’s oral pronouncement of judgment to the
extent the two conflict.” (People v. Delgado (2008) 43 Cal.4th 1059, 1070.)

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       Also at Daniels’s sentencing hearing, the court stated that Daniels was “given
credit for 1021 days. 559 actual plus 469 goodtime/worktime.” First, the stated total is
mathematically incorrect: the correct sum of 559 and 469 is 1028 days, the total
appearing on the abstract of judgment. Second, respondent states that Daniels, who was
arrested on June 3, 2011, and sentenced on December 3, 2012, served 549 days of actual
custody, and should receive 549 days of actual custody credit and 549 days of conduct
credit. The trial court’s failure to award the correct amount of presentence custody credit
is a jurisdictional defect that renders the sentence unauthorized. (People v. Taylor (2004)
119 Cal.App.4th 628, 647.) An unauthorized sentence is subject to judicial correction
whenever it comes to the attention of the reviewing court. (People v. Serrato (1973) 9
Cal.3d 753, 763, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d
572, 583, fn. 1.)
       We agree with respondent that Daniels served 549 days of actual custody. We do
not agree, however, that he was entitled to 549 days of conduct credit.
       Daniels committed the offenses of which he was convicted in June 2011. At that
time, his ability to earn conduct credit was limited to two days for every four days of
actual time served in presentence custody. (Stats. 2010, ch. 426, § 2, Sept. 2010
amendment to Pen. Code, § 4019.) The amendment to the statute increasing the amount
of conduct credit to two days of conduct credit for every two days of actual custody credit
was not operative until October 1, 2011. (Former § 4019, subd. (h), as amended by Stats.
2011, ch. 39, § 53.) Penal Code section 4019, subdivision (h), currently provides: “The
changes to this section enacted by the act that added this subdivision shall apply
prospectively and shall apply to prisoners who are confined . . . for a crime committed on
or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall
be calculated at the rate required by the prior law.”
       Our Supreme Court has held, however, that the increased accrual rate in the
former section 4019 could not be given retroactive effect in the absence of express
legislative intent to the contrary. (People v. Brown (2012) 54 Cal.4th 314, 318–319,
324.) It follows that the current “enhanced conduct credit provision applies only to those

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defendants who committed their crimes on or after October 1, 2011.” (People v.
Rajanayagam (2012) 211 Cal.App.4th 42, 52.) Daniels “is not entitled to enhanced
conduct credits for time served on or after October 1, 2011, because he committed his
crimes before the effective date.” (Id. at p. 51; accord People v. Miles (2013) 220
Cal.App.4th 432, 436; People v. Ellis (2012) 207 Cal.App.4th 1546, 1553.)
       Because Daniels committed his crimes before the effective date of the increased
accrual rate, he is entitled to conduct credit under the prior formula of two days for every
four days of actual time served in presentence custody. Daniels served 549 days of actual
time. He therefore is entitled to 274 days of conduct credit.




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                                       DISPOSITION
       The judgment is reversed. The case is remanded to the trial court to conduct a
hearing on defendant’s Pitchess motion. If there is no discoverable information in
Deputy L. Carter’s personnel files, then the trial court is ordered to reinstate the
judgment—modifying the judgment to grant defendant credit for 549 days in actual
presentence custody and 274 days of conduct credits for a total credit of 823 days, and
correcting the abstract of judgment to reflect this total, and also to reflect that the
sentence on count 2 is concurrent and stayed—with the trial court directed to prepare and
forward to the Department of Corrections and Rehabilitation an amended abstract of
judgment.
       If there is discoverable information and defendant can establish that it was
admissible and that he was prejudiced by the denial of its discovery, then the trial court is
directed to order a new trial. If defendant is unable to establish prejudice, then the trial
court is ordered to reinstate the judgment—modified as described above—and the trial
court is also directed to prepare and forward to the Department of Corrections and
Rehabilitation an amended abstract of judgment.
       NOT TO BE PUBLISHED.


                                            JOHNSON, J.


We concur:


       CHANEY, Acting P. J.


       MILLER, J.*




       *  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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