Filed 7/8/16 P. v. Obrien CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070105
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF153751A)
                   v.

COLIN NEAL OBRIEN,                                                                       OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
         Ronald Richard Boyer, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Franson, J. and Peña, J.
       Appellant Colin Neal Obrien appeals his sentence on one count of possession of a
controlled substance for sale (Health & Saf. Code, § 11378, subd. (a)) with two prior
serious or violent felony convictions (Pen. Code, § 667, subd. (e)) and one prior prison
term enhancement (Pen. Code, § 667.5, subd. (b)). Appellant contends insufficient
evidence supports the one-year prior prison term enhancement included with his
sentence. Appellant separately requests this court conduct an independent review of the
materials considered in response to appellant’s pretrial Pitchess1 motion. For the reasons
set forth below, we reverse and remand with respect to the prior prison term enhancement
and affirm with respect to the Pitchess request.
                 FACTUAL AND PROCEDURAL BACKGROUND
       On March 7, 2014, Kern County probation officers conducted a probation search
of a residence where appellant was residing. In the course of that search, the probation
officers found a digital scale, used syringes, and 29.23 grams of methamphetamine,
among other items, each in close proximity to appellant’s mail.
       Appellant was charged with possession of a controlled substance for sale
(count 1), including enhancement allegations for three prior serious or violent felony
convictions and three prior prison terms;2 possession of a controlled substance (Health &
Saf. Code, § 11377/count 2), including enhancement allegations for three prior serious or
violent felony convictions and three prior prison terms;3 and misdemeanor possession of



1      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2      At the bifurcated trial on sentencing issues, the trial court recognized the
information duplicated allegations related to an alleged July 13, 1998, burglary
conviction under Penal Code section 459. These duplicate entries were struck from the
pleading. In addition, the court permitted an amendment to the information to change the
location of the alleged May 9, 2006, conviction for taking a vehicle without consent
under Vehicle Code section 10851 from San Diego County to Kern County.
3      Count 2 was dismissed after appellant’s conviction on count 1. Notably, the prior
prison allegations for count 2 were different than count 1 in that they included a

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drug paraphernalia (Health & Saf. Code, § 11364.1/count 3). Appellant opted for a
bifurcated trial, with the guilt phase proceeding before a jury and the prior conviction
allegations proceeding before the trial judge.
       Prior to trial, appellant moved for discovery of potentially exculpatory evidence
and information on dishonesty in relevant police files and personnel records. The trial
court found sufficient reasons to conduct an in camera review of relevant personnel
records, but determined there was no relevant and discoverable information related to
dishonesty in the records and ordered no production.
       Appellant was ultimately convicted of count 1 and count 3. His bifurcated trial on
the prior conviction and prison term allegations followed. At that trial, the People
presented the following evidence regarding appellant’s criminal history to support the
charged enhancements on count 1:
        For the alleged convictions dated July 13, 1998, and September 24, 1998,
          under Penal Code section 459, the People relied upon a certified California
          Law Enforcement Telecommunications System (CLETS) report showing
          appellant’s criminal history (hereafter, rap sheet), and the abstract of judgment
          for the July 13, 1998 conviction4 to show the dates of conviction and
          appellant’s intake into prison;
        For the alleged conviction dated March 10, 2003, under Health and Safety
          Code section 11377, the People relied upon appellant’s rap sheet and the
          relevant abstract of judgment to show appellant was convicted of a felony;




March 10, 2003, conviction for possession of a controlled substance under Health and
Safety Code section 11377.
4      The abstract of judgment for the allegation appellant was convicted of on July 13,
1998, appears to show appellant was convicted on June 15, 1998. Neither party has
raised this discrepancy as a relevant issue.


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        For each of the above convictions, the People also relied upon appellant’s
          Penal Code section 969b packet to demonstrate he was placed in custody and
          generally remained detained until being paroled on or around March 8, 2005;
        Finally, for the alleged prior prison sentence served for a conviction dated
          May 9, 2006, under Vehicle Code section 10851, the People relied upon
          appellant’s rap sheet to show both conviction and sentencing, but did not
          introduce a Penal Code section 969b packet for this conviction.
       Reviewing this evidence, the trial court found true the allegations that appellant
had suffered a prior serious or violent felony conviction under Penal Code section 667
with respect to the alleged July 13, 1998, and September 24, 1998, convictions under
Penal Code section 459. The court further found true the allegation that appellant had
served a prior prison sentence for his July 13, 1998, conviction, following which “he did
not remain free of prison custody for and did commit an offense resulting in a felony
conviction during the period of five years subsequent to the conclusion of said term.”
       The court did not, however, find true the allegation that appellant served a prior
prison term for the alleged May 9, 2006, conviction under Vehicle Code section 10851.
With respect to this allegation, the trial court noted the charge in the information related
to appellant’s Vehicle Code conviction, but the sentence imposed on that count had been
stayed. Although the court recognized a subsequent notation showed a prison intake, it
understood this event to relate to any sentence served on appellant’s uncharged
conviction from the May 9, 2006, proceedings, for receiving stolen property under Penal
Code section 496. The People asked the court to both take judicial notice of the fact that
appellant served an eight-year prison term with respect to the Penal Code charge and
conform the information to the proof provided, but the trial court did not rule on the first
request and denied the second request. Accordingly, the court found the proof offered to
show appellant had served a prior prison term did not satisfy the charge, and deemed the
allegation not proven.

                                              4
       In response to this finding, the prosecutor asked whether the court’s ruling would
create a five-year “washout” issue with respect to the 1998 prior prison sentence. The
trial court stated it would “let probation deal with that in their report and then let both
counsel be prepared to discuss that issue.” The probation officer’s report included a
one-year enhancement for a prior prison sentence, but included no discussion of this
issue. Appellant made no argument on this issue at sentencing and was sentenced to a
determinate term of seven years, with credit for time served.
       This appeal timely followed.
                                       DISCUSSION
       Appellant raises two points for review. First, appellant claims the trial court
improperly added a one-year prior prison term enhancement to his sentence because the
evidence fails to show appellant suffered a felony conviction or served time in prison
during a five-year period after his 2006 conviction. Relatedly, appellant contends we
must strike this portion of his sentence rather than remand for additional proceedings
because remand would violate double jeopardy principles. Second, appellant requests we
independently review the trial court’s Pitchess analysis of all documents considered at the
in camera hearing.
Insufficient Evidence Supports the 1998 Prior Prison Term Allegation
Standard of Review and Applicable Law
       The prosecution bears the burden of proving every element of a sentencing
enhancement beyond a reasonable doubt. (People v. Delgado (2008) 43 Cal.4th 1059,
1065.) When an insufficient evidence challenge is raised on appeal, we review for
substantial evidence. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232 (Fielder).)
“The test on appeal is simply whether a reasonable trier of fact could have found that the
prosecution sustained its burden of proving the enhancement beyond a reasonable doubt.
In that regard, in conformity with the traditional rule governing appellate review, we
must review the record in the light most favorable to the trial court’s finding(s).” (Ibid.)

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       “A sentence enhancement pursuant to section 667.5, subdivision (b) requires the
defendant (1) have a prior felony conviction; (2) be imprisoned as a result of the prior
conviction; (3) complete the term of imprisonment; and, (4) not remain free for five years
from the prior imprisonment and commission of the new offense that also results in a
felony conviction.” (People v. Hutton (2016) 245 Cal.App.4th 703, 713, fn. omitted.)
The fourth prong of this enhancement test is an exemption commonly called the
“washout period.” “Under the exemption, a defendant who has served a prison prior
within the meaning of section 667.5, subdivision (b), but who has remained continuously
free from prison custody and who has not committed new felonies for a five-year period
is not subject to the enhancement if he or she reoffends.” (Id. at p. 714.)
The Record Evidence Does Not Show Appellant Failed to Qualify for the Exemption
       Under the relevant test, the prosecution must effectively prove a negative by
showing a defendant has not remained free from prison custody and/or not committed a
new felony for any five-year period following release from a charged prior prison term.
As it pertains to the case before us, the pertinent question is whether sufficient evidence
supports the trial court’s implicit finding that there was no five-year period between
appellant’s apparent imprisonment on May 19, 2006, and commission of the current
offenses on or around March 7, 2014, in which appellant was free from prison custody.
We conclude the evidence does not support such a finding.
       This determination turns on the evidence introduced to show the amount of time, if
any, appellant spent in prison following his May 9, 2006, convictions for attempted
possession of stolen property under Penal Code section 496 (the Penal Code charge) and
taking a vehicle without consent under Vehicle Code section 10851 (the Vehicle Code
charge). As noted above, the trial court found the allegation that appellant served a prior
prison term under the Vehicle Code charge was not proven based on notations in
appellant’s rap sheet showing the eight-year prison term for that conviction was stayed.
It also stated its understanding, based on the intake notation on appellant’s rap sheet, that

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some prison time was likely served and noted its belief that an eight-year term may have
been imposed on the Penal Code charge.
       Claiming to “play it safe” and relying upon the conclusion that appellant received
an eight-year sentence on the Penal Code charge, the prosecution assumed appellant
spent 50 percent of his sentence in prison, arguing his earliest release date would be in
2010. However, the only evidence submitted by the prosecution regarding the Penal
Code charge was appellant’s rap sheet,5 which does not directly show the sentence
imposed, the credits awarded on any prison time served, or any release date from
custody. This lack of evidence is key because there are substantial conflicts in the rap
sheet which affect the potential sentence appellant received.6
       Apparently recognizing the limitations in its evidence, the prosecutor opened the
sentencing hearing by asking the court whether it would check its CJIS7 records to
determine what type of custody credits appellant may have received on the 2006


5      There is no explanation in the record why the prosecutor produced and admitted
the abstracts of judgment and Penal Code section 969b packet relating to appellant’s
1998 and 2003 convictions, but not his 2006 convictions.
6       Appellant calculates the potential sentence on the Penal Code charge at five years
(18 months, doubled for his prior strikes, plus two years for prior prison terms), although
this calculation does not conform to the three strikes scheme in 2006. But the proper
calculations may conflict as well. If the conviction was for an attempt under Penal Code
section 496, as shown on the “court” entry, that crime was punishable by “imprisonment
in the state prison, or in a county jail for not more than one year,” suggesting a lower
maximum term, although an eight-year term is theoretically possible if a five-year strike
enhancement and two one-year prior prison term enhancements are added. (See former
Pen. Code, § 496, subd. (d), as amended by Stats. 1997, ch. 161, § 1; former Pen. Code,
§ 667, as amended by Stats. 1994, ch. 12, § 1.) If the conviction was for actual
possession of a stolen vehicle or vessel under Penal Code section 496d, as suggested by
the “custody” entry, that crime was punishable by a maximum base term of three years,
suggesting an even higher potential term. (See former Pen. Code, § 496d, subd. (a),
added by Stats. 1998, ch. 710, § 1.)
7     Although not identified in the record, “CJIS” refers to the “California Justice
Information Services.”


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convictions, and to take judicial notice of that fact. Later in the hearing, the prosecutor
again asked the court to take judicial notice of its CJIS records to support the assertion
that appellant was sentenced to eight-years in prison on the Penal Code charge. The court
did not grant either request and no further evidence was submitted regarding the length of
appellant’s confinement.8
       If appellant received anything up to a six-year sentence for which he served
50 percent of his time, he may have been released in time to complete the required
five‑year period prior to committing his current crimes. While one can envision
sentences resulting in an eight-year term on either the Vehicle Code charge—as appellant
detailed—or the Penal Code charge, both of which fit at least some portion of the record
evidence, both require assumptions and inferences that are not supported on the scant and
conflicting evidence presented. (People v. Ramon (2009) 175 Cal.App.4th 843, 851
[“[A] mere possibility is nothing more than speculation. Speculation is not substantial
evidence.”].) Moreover, while the probation officer’s report sheds light on how much
time appellant actually served, by showing appellant was first given Post Release
Community Supervision (PRCS) in December 2012, this evidence was not admitted at
appellant’s bifurcated trial and thus not relied upon when the trial court found true the
allegation that appellant had not remained free of felony convictions or prison terms for
any five-year period since 1998. Accordingly, given the prosecution’s burden of proof
on this issue, we conclude that insufficient evidence supports the imposition of a one-year
sentence enhancement for a prior prison term under Penal Code section 667.5 predicated
on appellant’s 1998 conviction.
       Having concluded insufficient evidence supports the sentencing enhancement,
appellant asserts we are limited to remanding for resentencing. The crux of this argument

8      We disagree with the People’s assertion that “in context, the court appeared to”
take judicial notice of the CJIS files. The record contains no ruling and no clear reliance
on such records.


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has been rejected by our own Supreme Court. (See People v. Barragan (2004) 32 Cal.4th
236, 240-243, 259 [retrial of strike allegation permissible after reversal for insufficient
evidence].) Under the binding precedent of Monge v. California (1998) 524 U.S. 721,
sentencing enhancements related to prior conviction issues are not subject to the double
jeopardy clause and remand for further proceedings, including potential retrial, is proper.
(People v. Marin (2015) 240 Cal.App.4th 1344, 1364-1366.)
The Trial Court Did Not Abuse Its Discretion Regarding Appellant’s Pitchess Motion
       Appellant filed a Pitchess motion seeking information related to instances of
dishonesty by Probation Officer Arturo Cervantes. The trial court reviewed Probation
Officer Cervantes’s personnel file, but found no documents should be produced.
Appellant requests we review the procedures implemented and the trial court’s decision
not to require production.
Standard of Review and Applicable Law
       Pitchess motions are the well-settled mechanism by which defendants can screen
law enforcement personnel files for evidence that may be relevant to their defense
without compromising the officer’s reasonable expectation of privacy in those records.
(People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc).) Subject to various restrictions
not relevant here, a trial court must conduct an in camera review of potentially relevant
personnel files if the defendant makes a showing of good cause for the discovery. (Id. at
p. 1226.)
       This process is effectuated by having a custodian of records collect all potentially
relevant documents from identified personnel files and present them to the trial court.
“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, and why those were deemed irrelevant or otherwise
nonresponsive to the defendant’s Pitchess motion.” (Mooc, supra, 26 Cal.4th at p. 1229.)



                                              9
       The trial court must then make a record of what documents it has examined to
permit future appellate review. (Mooc, supra, 26 Cal.4th at p. 1229.) “If the documents
produced by the custodian are not voluminous, the court can photocopy them and place
them in a confidential file. Alternatively, the court can prepare a list of the documents it
considered, or simply state for the record what documents it examined.” (Ibid.) These
proceedings are then sealed. (Ibid.)
       Upon appeal, we independently examine the record made by the trial court “to
determine whether the trial court abused its discretion in denying a defendant’s motion
for disclosure of personnel records.” (People v. Prince (2007) 40 Cal.4th 1179, 1285.)
The Trial Court Did Not Abuse Its Discretion
       The trial court concluded there were no documents responsive to appellant’s
Pitchess motion that required disclosure. We have reviewed the transcripts and settled
statements relevant to this issue, along with all documents presented to the trial court,
which the court helpfully preserved.
       The trial court complied with the required Pitchess procedures. A custodian of
records was present and placed under oath. Probation Officer Cervantes’s full personnel
file was reviewed and considered in light of appellant’s discovery motion. The court
created an accounting of what was reviewed and why it was not relevant or subject to
production. These proceedings were stenographically recorded. (Mooc, supra,
26 Cal.4th at p. 1229.) Our independent review finds the trial court did not abuse its
discretion in concluding no records should be disclosed. Indeed, there were no
complaints in the files and none of the standard personnel documents showed any
evidence of dishonesty or related conduct.




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                                      DISPOSITION
       The judgment that appellant is subject to a one-year prior prison term
enhancement under Penal Code section 667.5 based on his July 13, 1998, conviction is
reversed, and this matter is remanded for further proceedings consistent with this opinion.
In all other respects, the judgment is affirmed.




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