Filed 1/11/16 P. v. Lawless CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068445
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF144935A)
                   v.

KRISTOPHER WILLIAM LAWLESS,                                                              OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Harry A. (Skip)
Staley* and Gary T. Friedman, Judges.†
         Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-

*        Retired judge of the Kern County Superior Court assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
†      Judge Staley ruled on defendant’s Pitchess motion; Judge Friedman presided over
defendant’s trial and imposed sentence.
       A jury found defendant Kristopher William Lawless guilty of felony possession of
methamphetamine (former Health & Saf. Code, § 11377, subd. (a), as amended by Stats.
2011, ch. 15, § 171), misdemeanor possession of drug paraphernalia (Health & Saf.
Code, § 11364.1), and misdemeanor hit and run involving property damage (Veh. Code,
§ 20002, subd. (a)).
       On appeal, Lawless contends the trial court erred by failing to give a unanimity
instruction in connection with the hit-and-run charge. He also requests the court review
the sealed record to determine whether the trial court correctly ruled on his Pitchess
motion.1 Finally, he argues his conviction for possession of methamphetamine must be
reduced to a misdemeanor under Proposition 47.
       We affirm.
                                 PROCEDURAL HISTORY
       The Kern County District Attorney filed a 10-count information against Lawless
based on three separate incidents. Lawless was charged with attempted murder (Pen.
Code,2 §§ 664, 187, subd. (a); count 1), aggravated mayhem (§ 205; count 2), torture
(§ 206; count 3), criminal threats (§ 422; count 4), corporal injury to a cohabitant
(§ 273.5, subd. (a); count 5), and assault with a deadly weapon (§ 245, subd. (a)(1);
count 6), based on events alleged to have occurred October 29, 2012. He was charged
with possession of methamphetamine (former Health & Saf. Code, § 11377, subd. (a);
count 7) and possession of drug paraphernalia (Health & Saf. Code, § 11364.1; count 8),
alleged to have occurred November 1, 2012. He was charged with spousal battery
(§ 243, subd. (e)(1); count 9) and hit and run (Veh. Code, § 20002, subd. (a); count 10),
alleged to have occurred October 4, 2012.



1      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2      Further statutory references are to the Penal Code unless otherwise noted.


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       A jury found Lawless guilty of count 7 (possession of methamphetamine), count 8
(misdemeanor possession of drug paraphernalia), and count 10 (misdemeanor hit and
run). He was found not guilty of counts 1, 2, 4, and 6. The jury was unable to reach a
verdict on counts 3, 5, and 9 and the lesser included offenses applicable to counts 1 and 2.
The court declared a mistrial as to those charges.
       For count 7, then a felony, the trial court suspended imposition of sentence and
granted Lawless probation for a period of three years, ordering him to serve one year in
county jail. Lawless was sentenced to 90 days in county jail for each of counts 8 and 10
to be served concurrently with count 7.
                                       DISCUSSION
I.     Failure to instruct on unanimity
       In count 10, Lawless was charged with misdemeanor hit and run resulting in
property damage, a violation of Vehicle Code section 20002, subdivision (a). He argues
the trial court committed reversible error by failing to instruct the jury sua sponte on
unanimity because the prosecution presented two factual theories of liability and the jury
was instructed on both theories. We find no reversible error.
       A.        Law of hit and run
       Vehicle Code section 20002, subdivision (a), requires “[t]he driver of any vehicle
involved in an accident resulting only in damage to any property, including vehicles” to
“immediately stop the vehicle at the nearest location that will not impede traffic or
otherwise jeopardize the safety of other motorists” and to locate the owner or person in
charge of the damaged property. The driver must provide his or her name and address
and present his or her driver’s license and vehicle registration upon request. (Id.,
subd. (a)(1).)
       Lawless does not dispute that a “driver” for purposes of Vehicle Code
section 20002 includes an owner of a vehicle involved in an accident when the owner is
also riding as a passenger in the vehicle at the time of the accident. (See People v. Rallo

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(1931) 119 Cal.App. 393, 397 [for purposes of a prior hit-and-run statute, “the owner of a
machine who is riding therein having the control of its operation at the time of an
accident may be deemed to be the driver thereof”].)
       The jury in this case was given two instructions on Vehicle Code section 20002.
First, the jury was instructed that Lawless could be liable for hit and run as the actual
driver if the evidence showed, “[w]hile driving, the defendant was involved in a vehicle
accident.” (CALCRIM No. 2150.) Second, Lawless could be liable as an owner-
passenger if the evidence showed “[t]he defendant owned and was riding as a passenger
in a vehicle involved in an accident.” (CALCRIM No. 2151.) Under both the actual
driver and owner-passenger instructions, the jury was also required to find the accident
caused damage to someone else’s property, the defendant knew that he or she had been
involved in an accident that caused property damage, and the defendant willfully failed to
perform the duties to stop and provide certain information to the owner of the damaged
property.
       B.     Evidence and argument at trial
       Ashley Bates testified that she dated Lawless from August to November 2012. On
October 4, 2012, Bates was driving Lawless’s car to meet some friends at a bowling
alley; Lawless was a passenger in his own car. At a stoplight, Bates read a text message
and then cursed. Lawless was praying at the time. He thought Bates was being
disrespectful while he was praying, and he became angry and aggressive. Lawless
grabbed her hair and pulled her head back so she could not see the road. He tried to pull
the steering wheel to the right, Bates grabbed the wheel with both hands trying to prevent
him from pulling the car to the right, and they “ended up hitting a parked car.”




                                              4.
       Bates testified, “After I had hit the car, he pushed me out of the driver’s seat and
out of the car, jumped into the driver’s seat, and backed up and drove away and left me
there.” According to Bates, when Lawless backed up, he hit a fence.3
       Lawless testified in his own defense. He agreed with Bates that, on the day of the
accident, Bates was driving his car to a bowling alley. Lawless and Bates were arguing
in the car, and he said, “let’s pray.” Bates started cussing, he became upset again, and
they continued arguing. According to Lawless, Bates turned off the road and accelerated
into a car in a driveway. She hit the parked car, and Lawless “thought she was trying to
kill [him].” He testified, “She got out of the car, and I jumped into the driver’s seat and
drove off.” He said, “It didn’t feel right, but I thought since she was the one that was in
the accident that—and she was staying, that—you know, I just didn’t want to be there.
The car was new. I hadn’t registered it yet in my name and I was afraid I was going to
get it impounded.”
       In her closing statement, the prosecutor explained to the jury that there were two
jury instructions on count 10, hit and run. She argued that Lawless was guilty of the
offense as “a non-driver, a passenger in control” because he was a passenger in the car,
he knew he had been involved in an accident that caused property damage, and he left. In
addition, the prosecutor observed there were “two parts in this particular crash,” and
Lawless could also be found guilty of hit and run “as the driver when he hit the fence and
took off.”
       In his closing statement, defense counsel did not dispute the hit-and-run charge.
Instead, he told the jury, “So Count 10, good news for [the prosecutor], I think it would




3       The owner of the vehicle hit by Lawless’s car also testified that the accident “wiped out
my fence and hit my truck.” He was in his house watching television when he heard a noise. He
went outside and saw a red vehicle speeding away and a girl across the street who was
hysterically crying.


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be fair to conclude that [Lawless is] probably guilty of Count 10 beyond a reasonable
doubt, misdemeanor hit-and-run.”
       C.     Analysis
       “In a criminal case, a jury verdict must be unanimous. [Citations.] …
Additionally, the jury must agree unanimously the defendant is guilty of a specific crime.
[Citation.] Therefore, cases have long held that when the evidence suggests more than
one discrete crime, either the prosecution must elect among the crimes or the court must
require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001)
25 Cal.4th 1124, 1132.)
       “This requirement of unanimity as to the criminal act ‘is intended to eliminate the
danger that the defendant will be convicted even though there is no single offense which
all the jurors agree the defendant committed.’ [Citation.]” (People v. Russo, supra, 25
Cal.4th at p. 1132.) “For example, where the evidence proved several distinct episodes,
any of which could have supported the defendant’s conviction of a single count of
bribery, a unanimity instruction was required. [Citation.] Similarly, a unanimity
instruction was required where the defendant was charged in one count with passing 35
bad checks, because each check represented a potentially separate and independent
offense, creating the possibility the jury might not have unanimously agreed that the
defendant committed any single offense. [Citation.]” (People v. Sutherland (1993) 17
Cal.App.4th 602, 612.)
       Lawless argues that, because the prosecutor presented two factual theories for
liability on count 10 and the jury was instructed on both theories, the trial court was
required sua sponte to instruct the jury that it must unanimously agree on the specific act
that formed the basis for its verdict. We are not convinced. Bates and Lawless agreed
with each other on the following facts: (1) the car belonged to Lawless, (2) he was a
passenger in the car when it was involved in an accident involving a parked vehicle, and
(3) after the accident, Lawless drove off in his car without stopping or providing

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identifying information to the owner of the parked vehicle that had been hit. In addition,
Bates testified that Lawless hit a fence when he backed up and drove off, and there was
corroborating witness testimony that the parked vehicle and fence were damaged by
Lawless’s car.
       This evidence did not suggest two separate episodes that independently supported
count 10. A juror who believed either of the witness’s testimony would have found
Lawless guilty of count 10 under the theory of owner-passenger liability. A juror who
accepted all of Bates’s testimony, in addition, would have found Lawless guilty of hit-
and-run as the actual driver because he damaged the fence when he backed into it.
However, in no case could a reasonable juror have determined that Lawless was guilty as
the actual driver but not guilty as an owner-passenger. In other words, any juror who
found Lawless guilty under the actual-driver theory would necessarily have found him
guilty under the owner-passenger theory, too, because there was no dispute that Lawless
owned the car and was a passenger during the accident in which the parked car was
damaged and there was no dispute that he left without providing the required information.
Thus, there was no risk that the jury would convict Lawless of count 10 without agreeing
on a single criminal act that Lawless committed. To find Lawless violated Vehicle Code
section 20002 based on the evidence presented, the jury had to determine he was guilty as
an owner-passenger. Consequently, there was no need to give the jury a unanimity
instruction with respect to count 10.
       Alternatively, if we assume a unanimity instruction should have been given, the
error was harmless for the reason we have just explained. The guilty verdict for count 10
means the jury must have unanimously found that Lawless was guilty of hit and run
under the owner-passenger theory because, given the testimony, any reasonable juror
who found him guilty as the actual driver would also have found him guilty as the owner-
passenger. Accordingly, any error in failing to give a unanimity instruction was harmless
beyond a reasonable doubt. (See People v. Thompson (1995) 36 Cal.App.4th 843, 853

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[reviewing failure to give a unanimity instruction under Chapman’s harmless error
standard of harmless beyond a reasonable doubt], citing Chapman v. California (1967)
386 U.S. 18, 24, and People v. Deletto (1983) 147 Cal.App.3d 458, 471.)
II.    Pitchess motion
       Pitchess motions are governed by 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 (Mooc).) 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.; see Evid. Code, § 1045.) The ruling on a Pitchess motion is reviewed
for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
       Before trial, Lawless filed a Pitchess motion seeking information on “people who
have filed complaints related to dishonesty, false report writing, intimidation and
harassment on the part of [Officer Rex Davenport] within the last five years.” The trial
court conducted an in-camera review of the officer’s personnel records and identified one
citizen complaint as relevant. The court ordered the name and contact information of the
complainant to be produced subject to a protective order. On appeal, Lawless asks this
court to review the record to ensure the trial court complied with the procedures
suggested by our Supreme Court in Mooc, supra, 26 Cal.4th 1216, and to review the
sealed documents to determine whether the trial court abused its discretion.
       In this case, the court reporter transcribed the in-camera hearing, and we have
independently reviewed the sealed transcript. The custodian of records for the
Bakersfield Police Department’s Internal Affairs Division was duly sworn and testified

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that he looked in “places where there might be documents responsive to [Lawless’s]
motion.” He brought to court “all the citizen complaints and internal affairs
investigations” for Officer Davenport as well as the officer’s personnel file. (Italics
added.) The trial court described the documents it reviewed. The documents were
copied, and the copies were retained by the court in a sealed file. It appears to us,
therefore, that the trial court and custodian of records complied with the procedures
described in Mooc. (Mooc, supra, 26 Cal.4th at pp. 1229–1230 & fn. 4 [court reporter
should be present, representative of the custodian of records is placed under oath in the
in-camera hearing, the custodian “should be prepared to state in chambers and for the
record what other documents (or category of documents) not presented to the court were
included in the complete personnel record,” copies of all documents should be sealed,
and the trial court should make a record of what documents it examined].)
       We have also independently reviewed the sealed documents. We find no abuse of
discretion in the trial court’s determination that the only discoverable information in the
record related to a single citizen complaint. As a result, we uphold the ruling on the
Pitchess motion.
II.    Proposition 47
       In 2013, the jury convicted Lawless of count 7, felony possession of
methamphetamine in violation of former Health and Safety Code section 11377,
subdivision (a), and the trial court ordered Lawless to serve probation on count 7. The
following year, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act,
which went into effect November 5, 2014. (People v. Rivera (2015) 233 Cal.App.4th
1085, 1089.) Proposition 47 reclassified certain drug- and theft-related offenses
(including violation of Health & Saf. Code, § 11377) as misdemeanors, except for certain
ineligible defendants. (People v. Rivera, supra, at p. 1091.)
       In addition, Proposition 47 added section 1170.18, which provides a mechanism
for a person serving a felony sentence for a reclassified offense to petition for a recall of

                                              9.
his or her sentence. Under section 1170.18, subdivision (a), “[a] person currently serving
a sentence for a conviction” of a felony “who would have been guilty of a misdemeanor
under [Proposition 47] … had this act been in effect at the time of the offense may
petition for a recall of sentence before the trial court that entered the judgment of
conviction in his or her case to request resentencing in accordance with,” among other
statutes, Health and Safety Code section 11377, as amended by Proposition 47.
       On appeal, Lawless argues Proposition 47 operates retroactively and, thus, his
conviction on count 7 must be reduced to a misdemeanor because the judgment in this
case is not final. We disagree.
       Section 3 provides, “No part of [the Penal Code] is retroactive, unless expressly so
declared.” “[T]he language of section 3 erects a strong presumption of prospective
operation, codifying the principle that, ‘in the absence of an express retroactivity
provision, a statute will not be applied retroactively unless it is very clear from extrinsic
sources that the Legislature ... must have intended a retroactive application.’ [Citations.]”
(People v. Brown (2012) 54 Cal.4th 314, 324 (Brown).)
       There is, however, “an important, contextually specific qualification to the
ordinary presumption that statutes operate prospectively,” recognized by our Supreme
Court in In re Estrada (1965) 63 Cal.2d 740 (Estrada). (Brown, supra, 54 Cal.4th at
p. 323.) This exception to the presumption that new statutes operate prospectively only
has been stated as follows: “When the Legislature has amended a statute to reduce the
punishment for a particular criminal offense, we will assume, absent evidence to the
contrary, that the Legislature intended the amended statute to apply to all defendants
whose judgments are not yet final on the statute’s operative date.” (Ibid., fn. omitted,
citing Estrada, supra, at pp. 742–748.)
       “The rule in Estrada, of course, is not implicated where the Legislature clearly
signals its intent to make the amendment prospective, by the inclusion of either an
express saving clause or its equivalent.” (People v. Nasalga (1996) 12 Cal.4th 784, 793,

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fn. omitted.) In People v. Yearwood (2013) 213 Cal.App.4th 161, 172 (Yearwood), we
held the rule of Estrada did not apply to Proposition 36, which changed the requirements
for sentencing a defendant as a third strike offender under the Three Strikes law.
Proposition 36 also added section 1170.126, which provides a procedure for a prisoner
serving an indeterminate life sentence imposed pursuant to the Three Strikes law for a
crime that would not have subjected the prisoner to a life sentence under Proposition 36
to file a petition for recall of sentence and resentencing in accordance with the Three
Strikes law as amended by Proposition 36. (§ 1170.126, subd. (b).) We held the Estrada
rule did not apply and Proposition 36 was not retroactive “because section 1170.126
operates as the functional equivalent of a saving clause.” (Yearwood, supra, at p. 172.)
We explained, “The voters intended a petition for recall of sentence to be the sole remedy
available under [Proposition 36] for prisoners who were serving an indeterminate life
sentence imposed under the former three strikes law on [Proposition 36’s] effective date
without regard to the finality of the judgment.” (Ibid.)
       It has been observed that “‘[T]he basic structure of Proposition 47 is strikingly
similar to Proposition 36’ and ‘much of the appellate interpretation of Proposition 36 is
likely relevant in the interpretation of Proposition 47.’ [Citation.]” (People v. Rivas-
Colon (2015) 241 Cal.App.4th 444, 452, fn. 4.) We further observe that the procedure of
petitioning for a recall of sentence provided by section 1170.18, subdivision (a), of
Proposition 47 is strikingly similar to the petition procedure of section 1170.126,
subdivision (b), of Proposition 36. Following our reasoning in Yearwood, we conclude
section 1170.18 operates as the functional equivalent of a saving clause, the Estrada rule
does not apply, and Proposition 47 does not operate retroactively.4




4     The question of the retroactivity of Proposition 47 is currently before the California
Supreme Court. (People v. Dehoyos, review granted Sept. 30, 2015, S228230.)


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       In his reply brief, Lawless argues for the first time that he is precluded from using
the petition procedure of section 1170.18, subdivision (a), because he is not “‘currently
serving’ a felony sentence” for count 7. We question Lawless’s assumption that he
would be barred from seeking any relief at the trial court level and, in any event, it does
not follow from this assumption that he would be entitled to relief from this court in the
first instance. Proposition 47 is not retroactive, and Lawless provides no authority to
support his request that we reduce his conviction in count 7 to a misdemeanor.
                                      DISPOSITION
       The judgment is affirmed.


                                                          ___________________________
                                                                             KANE, J.
WE CONCUR:


 __________________________
LEVY, ACTING P.J.


 __________________________
POOCHIGIAN, J




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