Filed 2/18/15 P. v. Ibarra CA3
Opinion following rehearing
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C072556

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F00954)

         v.

LIDIA IBARRA,

                   Defendant and Appellant.




         Defendant Lidia Ibarra appeals her conviction for furnishing methamphetamine in
violation of Health and Safety Code section 11379, subdivision (a).1 She requests that
we review the sealed transcript of the Pitchess2 hearing to determine if the trial court
properly denied the motion. She contends the court erred in refusing to instruct the jury



1   Further undesignated statutory references are to the Health and Safety Code.
2   Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

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with her proposed pinpoint instruction, and that insufficient evidence supported the
court’s true finding regarding her three prior prison terms. (Pen. Code, § 667.5, subd.
(b).)
        The People agree with defendant’s Penal Code section 667.5, subdivision (b)
claims. We agree with the parties that the trial court’s true findings on defendant’s prior
prison term allegations were not supported by sufficient evidence. Accordingly, we shall
remand for the proper determination to be made regarding the prior prison terms. We
affirm the judgment in all other respects.
                  FACTUAL AND PROCEDURAL BACKGROUND
        On February 4, 2012, Sacramento police officers found one gram of
methamphetamine in a baggie, inside a closet, in Rachel Lopez’s apartment. Lopez, the
apartment manager, told the police that defendant had given her the methamphetamine a
few hours earlier.3 She also told the police that defendant lived in the apartment complex
and usually paid her rent “in methamphetamine.” When police subsequently arrested
defendant, they found a baggie of methamphetamine in her pocket similar to the one
found in Lopez’s closet.
        Defendant was charged with possession of methamphetamine for sale (§ 11378)
and furnishing methamphetamine (§ 11379, subd. (a)).4 The People further alleged




3 At trial, Lopez denied defendant gave her the methamphetamine and also denied telling
the police that defendant gave her the methamphetamine.
4 Section 11379, subdivision (a), in relevant part, subjects defendant to felony criminal
penalties if she “transports, imports, . . . sells, furnishes, administers, or gives away”
certain controlled substances, including methamphetamine, or offers or attempts to do the
same. The specific language of defendant’s charging document included all of this
language, but the jury instruction and verdict form for this count characterized
defendant’s conduct only as “giving away” methamphetamine.

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defendant was previously convicted of a serious felony (Pen. Code, §§ 667, subds. (b)-(i)
& 1170.12) and served three prior terms in prison (Pen. Code, § 667.5, subd. (b)).
       Defendant’s first trial ended in a mistrial; a second jury trial began on October 4,
2012. Pretrial, the trial court struck the possession for sale charge, and after presentation
of evidence the jury found defendant guilty of “giving away” methamphetamine.
(§ 11379, subd. (a).) The judge instructed the jury on the lesser included offense of
simple possession (§ 11377, subd. (a)), but the jury did not reach that charge as it
convicted defendant of the greater offense of “giving away.”
       The trial court subsequently found true the enhancement allegations--including
prison priors from 1995, 1999, and 2006--and sentenced defendant to an aggregate term
of nine years in state prison. Defendant appeals.
                                       DISCUSSION
                                              I
                                      Pitchess Motion
       Before trial, defendant filed a Pitchess motion. After holding an in camera
hearing, the trial court declined to order any discovery. Defendant asks us to conduct an
independent review of the sealed records of the trial court’s hearing on her Pitchess
motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1225-1226 (Mooc).)
       A criminal defendant may compel discovery of certain information in police
officer personnel files. The defendant must first demonstrate good cause by making
“general allegations which establish some cause for discovery” of the information and by
showing how it would support a defense to the charge against him. (Pitchess, supra,
11 Cal.3d at pp. 536-537; see Evid. Code, § 1043, subd. (b)(3).) If the trial court finds
good cause, the custodian of the officer’s records brings to court all the potentially
relevant records and, in camera, the court determines whether any information from the
records need be disclosed to the defense. (Mooc, supra, 26 Cal.4th at p. 1226.) Here, the
trial court held such a hearing.

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       Initially, the record on appeal contained only the sealed reporter's transcript from
the in camera proceedings. Because the custodian of records identified potentially
responsive material in the officer’s personnel file and presented this material to the trial
court for review, we are required to review the material presented to the trial court, not
just the reporter’s transcript. (See People v. Fuiava (2012) 53 Cal.4th 622, 648 (Fuiava);
People v. Guevara (2007) 148 Cal.App.4th 62, 67, 69; People v. Wycoff (2008) 164
Cal.App.4th 410, 414-415.) Accordingly, we ordered the appellate record augmented to
include the material reviewed by the trial court. Then, because the trial court had not
kept copies of any material reviewed,5 we ordered the trial court “to obtain the materials
previously reviewed by the trial court in camera, and forward a copy of those materials to
this court, under seal, with no copies to counsel.” The trial court obtained the materials
reviewed by the trial court at the Pitchess hearing and forwarded them to our court.
       We will not disturb a trial court’s ruling on a Pitchess motion absent an abuse of
discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) Having
independently reviewed the sealed transcript of the Pitchess proceeding, as well as the
materials reviewed at that proceeding, we conclude the court followed proper Pitchess
procedures and did not err when it declined to order discovery. (See Fuiava, supra,
53 Cal.4th at pp. 646-648.)




5 “The trial court should . . . make a record of what documents it examined before ruling
on the Pitchess motion. Such a record will permit future appellate review. 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.”
(Mooc, supra, 26 Cal.4th at p. 1229; see People v. Prince (2007) 40 Cal.4th 1179, 1285-
1286 [record adequate for appellate review because it included “the documents that
formed the basis for the [trial] court’s conclusion that defendant was not entitled to the
complaints”].

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                                              II
                     Pinpoint Instruction on Constructive Possession
       Defendant next contends the trial court erred in refusing to instruct the jury using
her pinpoint instruction on constructive possession. Defendant contends her proposed
instruction was necessary to define what it means to “give away” methamphetamine
under section 11379, subdivision (a).
       A. Background
       Defendant proposed the following instruction:
       “Possession may be actual or constructive. The defendant has constructive
possession when she maintains control of a right to control [sic] contraband. Even if the
defendant did not have exclusive control of the closet, she still[] possesses the contraband
if she had not abandoned the contraband and no other person has obtained possession.
The defendant is also deemed to have possessed the contraband if, pursuant to her
direction or permission, another person actually possessed the contraband and the
defendant retained the right to control the contraband.”
       The trial court declined to give the instruction, finding “the instructions within
[Numbers] 2300 and 2304 of [CALCRIM] sufficiently cover a definition of possession.”
       The court instructed the jury as relevant here regarding possession as follows
(from CALCRIM No. 2300): “[A] person does not have to actually hold or touch
something to give it away. It is enough if the person has control over it or the right to
control it either personally or through another person.” And from CALCRIM No. 2304:
“[T]wo or more people may possess something at the same time,” and “a person does not
have to actually hold or touch something to possess it. It is enough if the person has
control over it or the right to control it either personally or through another person.”
       B. Law and Analysis
       A trial court is obliged to instruct, even without a request, on the general principles
of law which relate to the issues presented by the evidence. (Evid. Code, §§ 1093, subd.

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(f), 1127; People v. Breverman (1998) 19 Cal.4th 142, 154.) A pinpoint instruction
relates particular facts to a particular legal theory and “pinpoints” the crux of defendant’s
case, such as mistaken identification. (People v. Gutierrez (2009) 45 Cal.4th 789, 824.)
A trial court is required to give a pinpoint instruction when defendant requests it and
there is evidence that supports the theory. (Ibid.) A court need not, however, give a
pinpoint instruction that is argumentative or duplicative. (People v. Harris (2013)
57 Cal.4th 804, 853.)
       The defense theory at trial was that defendant had not relinquished possession of
the methamphetamine that was found in Lopez’s closet; she was, therefore, still in
possession of the drugs and had not actually given them away. (Thus the strategy was to
admit possession, the lesser included offense, but deny committing the greater offense of
“giving away,” which required possession but subsequent relinquishment.) But the
proposed instruction did not define what it meant to “give away”; it merely added to the
information already provided to the jury regarding possession and constructive
possession. Thus, the instruction was duplicative. It did not do what defendant now
claims it did--define “give away.”
       Further, defendant fails to show prejudice. In closing, she argued that although the
drugs were found in Lopez’s closet, defendant never relinquished control of them. She
was thus guilty of possessing the drugs but not giving them away. The jury instructions
as given permitted defendant to make this argument and were legally supportive of it.
Whether the facts elicited at trial were supportive of defendant’s theory was a jury
determination. That the jury declined to agree with defendant’s assessment of the facts
did not render the instructions inadequate. The trial court did not err when it refused
defendant’s pinpoint instruction.




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                                             III
                                       Prison Priors
       Defendant contends that insufficient evidence supports the trial court’s true
findings on her prison commitments, as the People presented no proof that she was not
subject to the five-year “wash out” provision found in Penal Code section 667.5,
subdivision (b). The People agree that defendant’s prison priors are unsupported by
substantial evidence, as the evidence presented failed to prove one of the required
elements--that defendant was not subject to the five-year “wash out” provision, which
requires proof that defendant did not remain free for five years of both prison custody and
a new felony conviction after sustaining the alleged prior convictions. (See People v.
Tenner (1993) 6 Cal. 4th 559, 563.)
       We agree with the parties that the true findings on the prison priors are not
supported by sufficient evidence regarding the five year “wash out” provision, because
insufficient evidence was presented regarding defendant’s post-2006 conduct in that
regard. We will reverse the trial court’s findings and remand for retrial. (See People v.
Barragan (2004) 32 Cal.4th 236, 241, 259.)
                                      DISPOSITION
       The trial court’s true findings on defendant’s three prior prison terms are reversed.
The matter is remanded to the trial court for the limited purpose of affording the People
the opportunity to establish that defendant did not remain free for five years of both
prison custody and a new felony conviction as required by Penal Code section 667.5,
subdivision (b). The People have 90 days from remittitur to calendar a hearing for this
purpose.
       If the People meet their burden, the trial court shall reenter the judgment and
sentence, as modified. If the People fail to timely calendar the necessary hearing within
90 days from remittitur, or, at said hearing, fail to prove defendant’s prior prison terms as



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detailed ante, the trial court is directed to dismiss the allegations and resentence
defendant accordingly.
       In either event, the trial court shall prepare an amended abstract of judgment and
forward a certified copy to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.



                                                         DUARTE                 , J.



We concur:



      NICHOLSON              , Acting P. J.



      MURRAY                 , J.




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