Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County of Los Angeles No. TA087041, Eleanor J. Hunter, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury found defendant and appellant Kenard Watkins (defendant) guilty of possession of a controlled substance and possession of a smoking device. On appeal, defendant contends that (i) the trial court erred when it denied his Pitchess motion and request for an in camera inspection of the arresting officers’ personnel files; (ii) the prosecutor engaged in prejudicial misconduct by attempting to impeach defendant on a collateral matter; and (iii) the trial court engaged in judicial misconduct by making statements to the jury that, according to defendant, impugned his credibility. Defendant also challenges the three-year sentence enhancement imposed by the trial court under Penal Code section 667.5, subdivision (a).
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
All further statutory references are to the Penal Code unless otherwise stated.
We hold that the trial court erred in not conducting an in camera inspection in connection with defendant’s Pitchess motion, and, therefore, the judgment should be reversed conditionally. We further hold that defendant has forfeited his claims of prosecutorial and judicial misconduct by failing to object and request a curative instruction in the trial court. We also agree with defendant and the Attorney General that the three-year sentence enhancement imposed under section 667.5, subdivision (a) was not authorized.
FACTUAL BACKGROUND
A. Prosecution’s Case
On October 14, 2006, at approximately 10:00 p.m., Los Angeles Police Officer Enrique Hernandez was on patrol with his partner, Officer Jose Diaz-Ibarra, in a marked patrol unit at approximately 108th Street and Central Avenue. As they proceeded southbound on Central, they observed defendant riding his bicycle on the sidewalk wearing headphones. He was riding against the flow of traffic on the eastside of the street. Therefore, the officers conducted a pedestrian stop of defendant.
Officer Hernandez testified that riding a bicycle on the sidewalk and riding a bicycle while wearing headphones were both Vehicle Code violations.
The officers approached defendant to obtain the information necessary to complete a field interview card. In response to questioning from the officers, defendant stated that he had been arrested before and was on parole. He also told the officers his name was “Kennard Robinson.” But when the officers ran a “warrant check” on defendant using that name, he did not “come up.” After further questioning by the officers, defendant admitted he had been lying about his name because he was on parole, had not been “checking in” with his parole officer, and had a “parole warrant” outstanding.
A field interview card is a standard form used to record a person’s personal information, including name, address, telephone number, whether the person has ever been arrested, and whether he or she is on parole.
Defendant then provided the officers with his true name and, when they entered his information into the patrol car’s computer, they discovered that he had an outstanding parole warrant. At that point, they put his bicycle in the trunk of their patrol car. In a “fanny pack” around defendant’s waist, Officer Hernandez discovered a glass pipe with copper mesh in one end and an off-white substance inside the pipe. Based on Officer Hernandez’s training and experience, he opined that the substance in the pipe was rock cocaine. Officer Hernandez also expressed his view, based on training and experience, that there was a “useable amount” of the substance in the pipe. Officer Hernandez booked the pipe and substance into evidence.
Officer Hernandez did not arrange to have the pipe he recovered fingerprinted because that was not routinely done. Nor did he arrange to have the pipe tested for DNA to determine if any saliva on the pipe might match defendant.
Richard Raffel, a criminalist, was a supervisor in the narcotics analysis section of the Los Angeles Police Department. He had 24 years experience as a criminalist and had bachelor and master of science degrees in chemistry. He trained and supervised the criminalist who analyzed the substance in the pipe recovered from defendant and who wrote the reports setting forth the results of that analysis. Based on the tests performed and the resulting reports, Mr. Raffell opined that the substance in the pipe recovered from defendant tested “positive for cocaine base.”
B. Defendant’s Case
According to defendant, on October 14, 2006, at around 9:30 or 10:00 p.m., he had just finished “washing some clothes for a friend[’s] son [so the boy could] attend school.” He had the clothes in a backpack on his shoulder and was proceeding southbound on Central Avenue on his bicycle. He was on the sidewalk, but there were no pedestrians on the sidewalk at that time of night.
He observed a black and white patrol car headed northbound on Central that passed him and then turned around and came back to his location. The officers told him to stop and “get off” his bicycle. One of the officers asked defendant where his “bike light” was. Defendant took a magnetized light off his handle bars and shined the light at the officers’ patrol car. The officers directed defendant to put the bicycle down and move away from it. One of the officers, probably Officer Hernandez, took the light from defendant, and defendant never saw it again. Officer Hernandez then handcuffed defendant. Meanwhile, Officer Diaz-Ibarra searched defendant’s backpack and dumped all the clothing on the ground.
After defendant was handcuffed, the officers asked for his name, and he told them his name was “Kenny Robinson.” He provided that name because it was on a hospital wristband he was wearing, and the officers had seen the wristband. Officer Hernandez went to the patrol car and entered the name in the computer, while Officer Diaz-Ibarra searched the location.
When Officer Hernandez returned from the patrol car, he searched defendant’s pockets, the “CD walkman holder” around defendant’s waist, and his jacket. Defendant had his earphones around his neck and his walkman was in the holder on his waist. Officer Hernandez unzipped the holder, raised the flap, looked inside, and then closed the holder.
He then asked defendant, “What is your real name.” That name [Kenny Robinson] is not bringing back any information. What’s your real name.” Defendant responded, “That is my name.” When Officer Hernandez asked if defendant had ever been arrested, defendant answered in the affirmative. Officer Hernandez asked defendant for the name he used in relation to that arrest, and defendant replied “Kenny Robinson.” Officer Hernandez kept “badgering defendant saying, ‘that is not your name. Come on and tell me your name.’” Officer Hernandez was being “belligerent,” while defendant was being “complacent.”
When defendant continued to insist his name was Kenny Robinson, Officer Hernandez said, “Okay, we are going to run you in to find out who you really are.” Officer Hernandez placed defendant in the back seat of the patrol car as Officer Diaz-Ibarra proceeded to pick up the clothing he had dumped on the ground. At that point, defendant heard Officer Diaz-Ibarra say, “Oh, I found something.” The officers then closed the door to the patrol car, locked the door, “grabbed” the bicycle, and picked up defendant’s other property.
The officers drove defendant to his friend Leonard’s house and dropped off defendant’s bicycle and CD player. The officers then proceeded to the police station. At the station, one of the officers confronted defendant and said, “Your real name is Kennard Watkins, isn’t it?”
Defendant never saw what Officer Diaz-Ibarra retrieved from the scene of the arrest. But defendant insisted that he did not have a cocaine pipe in his “walkman pouch,” nor did he have cocaine. He was never shown the cocaine that had been recovered, and he had no idea from where the cocaine pipe and rock cocaine had been retrieved.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney charged defendant in an amended information with possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a)—a felony—and possession of a smoking device in violation of Health and Safety Code section 11364, subdivision (a)—a misdemeanor. The District Attorney alleged as to count 1 that defendant had suffered three prior convictions of serious or violent felonies within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The District Attorney further alleged as to count 1 that defendant had served a prior prison term within the meaning of section 667.5, subdivisions (a) and (b). The District Attorney also alleged that (i) pursuant to California Rules of Court, rule 4.421(a)(7) defendant had been convicted of four other crimes for which consecutive or concurrent sentences could be imposed; (ii) pursuant to rule 4.421(b)(3), defendant had served a prior prison term; and (iii) pursuant to rule 4.421(b)(4), defendant committed the crime alleged in count 1 while on probation and parole. Defendant pleaded not guilty and denied the special allegations.
Prior to trial, defendant made a Pitchess motion that the trial court denied without an in camera review of any records. Following a jury trial, defendant was convicted on both counts. Defendant admitted the special allegations and the trial court struck two of the prior strike convictions pursuant to defendant’s Romero motion. The trial court sentenced defendant as a second strike offender and imposed an aggregate seven-year sentence on count 1, comprised of: a midterm two-year sentence, doubled to four years pursuant to sections 667, subdivisions (b) through (i) and 1170.12 (a) through (d), plus a consecutive three-year prior prison term enhancement pursuant to section 667.5, subdivision (a) and a concurrent prior prison term enhancement of one year pursuant to section 667.5, subdivision (b). As to count 2, the trial court imposed a six-month sentence to run concurrently with the seven-year sentence.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
A. Pitchess Motion
We review the trial court’s ruling on the Pitchess motion for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1286; see also People v. Hughes (2002) 27 Cal.4th 287, 330 [A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion].) Not complying with our Supreme Court’s requirements in connection with a Pitchess motion is considered an abuse of discretion. (See People v. Johnson (2004) 118 Cal.App.4th 292; Abatti v. Superior Court (2003) 112 Cal.App.4th 39.)
Defendant contends he presented a sufficient factual basis in his Pitchess motion to warrant an in camera inspection of the arresting officers’ personnel files by the trial court to determine if those records contained information useful to his misconduct defense. In support of this contention, defendant cites, inter alia,to the Supreme Court’s decision in Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick). According to defendant, the factual basis in support of his Pitchess motion was substantially similar to the factual basis that the Supreme Court in Warrick found sufficient to warrant an in camera inspection.
In Warrick, supra, 35 Cal.4th 1011, the police report indicated that the three arresting officers were on patrol in a marked vehicle in an area known for narcotics activities when they observed the defendant looking into a clear plastic baggie in his hand. (Id. at p. 1016.) The baggie contained “off-white solids.” (Ibid.) As the officers exited their vehicle, the defendant fled, discarding numerous off-white “lumps” resembling rock cocaine. (Ibid.) One of the officers recovered 42 lumps from the ground and the other two officers arrested the defendant after a short pursuit. (Ibid.) The defendant had an empty baggie in his hand and $2.75 in cash in his pockets. (Ibid.) Defendant was arrested and charged, inter alia,with possession of cocaine base for sale. (Id. at pp. 1016-1017.)
Prior to trial, the defendant filed a Pitchess motion under section 1043 for disclosure of any previous citizen complaints against the three arresting officers. (Warrick, supra, 35 Cal.4th at p. 1017.) The defendant supported his motion with a declaration from his counsel setting forth the following facts: “When the three officers got out of the patrol car, defendant, who feared an arrest on an outstanding parole warrant, started to run away, but within moments the officers caught up with him. Meanwhile, there were ‘people pushing and kicking and fighting with each other’ as they collected from the ground objects later determined to be rock cocaine. After two officers retrieved some of the rocks, an officer told defendant, ‘“You must have thrown this.”’ Defendant denied possessing or discarding any rock cocaine. He said he was in the area to buy cocaine from a seller who was present there. Defense counsel suggested that the officers, not knowing who had discarded the cocaine, falsely claimed to have seen defendant, who was running away, do so.” (Id. at p. 1017.)
The trial court denied the defendant’s motion, including his request for an in camera review of the requested records, concluding that the defendant had failed to establish good cause. (Warrick, supra, 35 Cal.4th at p. 1018.) After the Court of Appeal denied the defendant’s petition for writ of mandate, the Supreme Court granted review. (Ibid.)
In reversing the Court of Appeal’s order denying the defendant’s petition, the Supreme Court in Warrick, supra, 35 Cal.4th 1101, explained the origins of the so-called Pitchess motion. “This court’s 1974 decision in Pitchess, supra, 11 Cal.3d at pages 536 to 537, established that a criminal defendant could ‘compel discovery’ of certain relevant information in the personnel files of police officers by making ‘general allegations which establish some cause for discovery’ of that information and by showing how it would support a defense to the charge against him. [¶] In 1978, the California Legislature codified the holding of Pitchess by enacting Penal Code sections 832.7 and 832.8, as well as Evidence Code sections 1043 through 1045. (Added by Stats. 1978, ch. 630, §§ 1–3 & 5–6, pp. 2082–2083; see City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9 [124 Cal.Rptr.2d 202, 52 P.3d 129].)” (Warrick, supra, 35 Cal.4th at pp. 1018-1019.)
The court in Warrick, supra, 35 Cal.4th 1101, then described the showing required to justify production of an officer’s personnel records. “To initiate discovery, the defendant must file a motion supported by affidavits showing ‘good cause for the discovery,’ first by demonstrating the materiality of the information to the pending litigation, and second by ‘stating upon reasonable belief’ that the police agency has the records or information at issue. (§ 1043, subd. (b)(3).) This two-part showing of good cause is a ‘relatively low threshold for discovery.’ [Citation.] [¶] If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance. [Citations.]” (Warrick, supra, 35 Cal.4th at p. 1019, italics added.)
According to the court in Warrick, supra, 35 Cal.4th 1011, the declaration of defense counsel in support of a Pitchess motion must propose a defense to the pending charge that is supported by a plausible factual scenario of police misconduct. “To show good cause as required by section 1043, defense counsel’s declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. . . . [¶] Counsel’s affidavit must also describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report. [¶] . . . [¶] [A] plausible scenario of officer misconduct 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. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. Such a showing ‘put[s] the court on notice’ that the specified officer misconduct ‘will likely be an issue at trial.’ [Citation.] Once that burden is met, the defendant has shown materiality under section 1043.” (Id. at pp. 1024, 1025, 1026, italics added.)
Applying the foregoing standards to counsel’s declaration in support of the defendant’s Pitchess motion, the court in Warrick, supra, 35 Cal.4th 1011, concluded, “[D]efendant’s version of events is plausible given the factual scenario described in defense counsel’s declaration. The declaration asserted that the officers mistook defendant for the person who actually discarded the cocaine, and falsely accused him of having done so. The scenario described in defense counsel’s declaration is internally consistent; it conflicts with the police report only in denying that defendant possessed any cocaine and that he was the one who discarded the rocks of cocaine found on the ground. Those denials form the basis of a defense to the charge of possessing cocaine for sale. Thus, defendant has outlined a defense raising the issue of the practice of the arresting officers to make false arrests, plant evidence, commit perjury, and falsify police reports or probable cause.” (Id. at p. 1027.) Accordingly, the court in Warrick held that the defendant had “established good cause for Pitchess discovery, entitling him to the trial court’s in-chambers review of the arresting officers’ personnel records relating to making false arrests, planting evidence, fabricating police reports or probable cause, and committing perjury.” (Ibid.)
In Garcia v. Superior Court (2007) 42 Cal.4th 63―which dealt with the issue of whether a declaration in support of a Pitchess motion can be filed under seal―the court summarized its holding in Warrick, supra, 35 Cal.4th 1011, as follows: “We note that particularly after Warrick, [footnote omitted] a litigant in the vast majority of cases will be able to obtain Pitchess discovery without revealing privileged information. Thus, filing under seal will usually be unnecessary. The Legislature has required only a minimal showing before a court reviews an officer’s personnel record. Essentially, the defendant must propose a potential defense to the pending charge, articulate how the discovery might lead to or constitute evidence providing impeachment or supporting the defense, and describe an internally consistent factual scenario of claimed officer misconduct. Depending on the circumstances of the case, the scenario may be a simple denial of accusations in the police report or an alternative version of what might have occurred. (Warrick, supra, 35 Cal.4th at pp. 1024–1026.)” (Garcia v. Superior Court, supra, 42 Cal.4th at p. 72, italics added.)
In this case, defendant submitted facts in his counsel’s declaration that describe a plausible factual scenario of police misconduct. Defendant’s factual basis, as stated in his counsel’s declaration, is based on the following assertions: “The defendant represents that he was stopped approximately 10:30 at night at Central Ave. and 108th on the East side of the street and that he had on a walkman headphones on both ears. He was wearing a walkman pouch around his waistband. The defendant further represents that said walkman holder was removed from him and he was placed in the LAPD black and white and that the officer then approached him claiming that he had during the search discovered a clear glass pipe with copper mesh at one end and a [sic] off white rock like substance in a side pocket of the defendants [sic] walkman holder. The defendant denies that he was in possession of these items and he is charged with a violation H&S 11350(a) possession a felony, and H&S 11347 possession of smoking device a misdemeanor.” (Italics added.)
Although the declaration in this case is not as factually detailed as the one in Warrick, supra, 35 Cal.4th 1101, it nevertheless raises—at least by inference—a plausible scenario of misconduct. According to that declaration, after the officers stopped defendant, they removed his “walkman pouch” from his waist and placed him in their patrol car. Then one of the officers approached him, claiming that during a search the officer discovered a cocaine pipe and an off-white rock substance in the side pocket of the walkman pouch. But defendant denied that he was in possession of those items.
Defendant’s facts suggest the following scenario: After the officers removed his walkman pouch and placed him in the patrol car, one of the officers planted the pipe and cocaine in the pouch and then falsely accused defendant of possessing those items. That is a plausible factual scenario of misconduct. Therefore, the trial court should have conducted an in camera review of the arresting officers’ personnel records. Its failure to do so warrants reversal for the limited purpose of conducting the required in camera review to determine whether any discoverable information is contained in the officers’ personnel records. However, because we agree with defendant’s concession that the document request in his Pitchess motion was not “ideally succinct,” the trial court may properly narrow any overbroad discovery requests to insure that they are limited to the type of alleged misconduct asserted in his attorney’s declaration. (Warrick, supra, 35 Cal.4th at p. 1027, citing People v. Jackson (1996) 13 Cal.4th 1164, 1220 [overbroad discovery request is properly narrowed by the trial court to misconduct similar to that alleged].)
B. Prosecutorial Misconduct
Defendant contends that the prosecutor engaged in prejudicial misconduct when she asked defendant whether he had ever used or possessed rock cocaine, and then sought leave to impeach defendant’s denials of such use or possession with proof of his prior convictions for possession of controlled substances. According to defendant, the prosecutor asked defendant about prior cocaine use and possession for the sole and improper purpose of impeaching him on collateral matters with at least one of his prior convictions for possession—a conviction that the trial court had previously ruled was not admissible.
Prior to trial, the prosecutor sought and received leave of court to impeach defendant with his four prior felony convictions for robbery, kidnapping, and burglary. The trial court, however, denied leave to impeach defendant on his prior conviction for possession of a controlled substance. At trial, during cross-examination, defendant denied ever having seen the cocaine pipe that was recovered by the officers and introduced into evidence. The following series of questions, answers, and objections ensued:
“Q. [Prosecutor]: Okay. Did you see the pipe when it was in court earlier today?
A. [Defendant]: Yes, I did.
Q. You saw it up there on the screen?
A. Yes, I did.
Q. Did you recognize that pipe?
A. No, I did not.
Q. Have you ever seen a pipe like that before?
A. With users, yes.
Q. With users?
A. Yes.
Q. When have you been with users?
A. I had a sister that used to use drugs.
Q. Have you ever used drugs?
A. Previous in my lifetime, yes.
Q. How long ago?
A. About 13 years.
[Defense Counsel]: Relevance, Your Honor.
[The Court]: Sustained.
[Prosecutor]: Q. Did you ever use a pipe like that?
A. No, I didn’t.
[Defense Counsel]: Relevance.
[The Court]: Overruled. I think the answer was, no, I didn’t.
[Defendant]: No, I did not.
[Prosecutor]: Q. And well, have you ever used rock cocaine before?
A. No, I did not.
Q. Have you ever possessed rock cocaine before?
A. No, I have not.”
Following defendant’s denials of cocaine use and possession, the prosecutor requested a side-bar during which she sought leave to introduce defendant’s prior convictions for possession of controlled substances to impeach his denials. The trial court indicated that it would allow the prosecutor to use defendant’s October 18, 1988, conviction for possession of cocaine to impeach him. But, prior to the prosecutor introducing defendant’s prior conviction, defendant changed his testimony and admitted that he had possessed crack cocaine.
“[A]s a general rule, to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm.” (People v. Carter (2005) 36 Cal.4th 1114, 1204.) Here, although defendant’s counsel objected on relevance grounds to the question about whether defendant had ever used a cocaine pipe similar to the one in evidence, his counsel did not object to either the question about prior cocaine use or the question about prior cocaine possession. Similarly, when the prosecutor thereafter sought permission to introduce defendant’s prior conviction for cocaine possession for impeachment purposes, defendant’s counsel did not voice any objection, much less a specific objection based on misconduct. Nor did defense counsel request or suggest any sort of curative instruction. Based on the record, defendant has forfeited his claim of prosecutorial misconduct.
C. Judicial Misconduct
Defendant also contends that the trial court engaged in prejudicial misconduct based on a statement the court made to the jury concerning defendant’s testimony—a statement that, according to defendant, impugned his credibility. Following defendant’s admission that he had used crack cocaine, the following exchange occurred: “[Prosecutor]: I’m asking if you ever possessed crack cocaine? [Defendant]: Yes. [Prosecutor]: And when I asked you that question earlier, you said no? [Defendant]: Yes, I did. [Prosecutor]: Why did you say no? [Defendant] I mean if you were facing 25 to life, a penalty.”
In immediate response to defendant’s reference to his potential sentence, the trial court made the following statement to the jury: “Okay, ladies and gentlemen, I’m going to actually say that that is absolutely not true. The defendant is not facing a 25 to life situation. And that is not the circumstance in this case. [¶] Also, you’re not to consider punishment for any reason. And that statement right there, facing 25 to life, is not the situation in this case.” Defense counsel did not respond to the trial court’s statement to the jury.
The amended information alleged that defendant had suffered three prior convictions of serious or violent felonies. Prior to trial, however, the prosecutor informed the trial court that she was not proceeding with the case as a three strikes case.
As claims of prosecutorial misconduct, claims of judicial misconduct may be forfeited on appeal by a defendant’s failure to object to the claimed misconduct and request a curative instruction. (People v. Bell (2007) 40 Cal.4th 582, 603, fn. 7; People v. Fudge (1994) 7 Cal.4th 1075, 1108.) Assuming, arguendo, that the trial court’s statement to the jury suggested that defendant was being untruthful about the potential sentence he was facing, it was incumbent upon his counsel to object, request a side-bar, and seek a curative instruction from the trial court. By failing to proceed in that manner, defense counsel deprived the trial court of the opportunity to explain its statement and advise the jury that the statement was not intended as a comment or opinion about defendant’s credibility. As a result, defendant forfeited on appeal the judicial misconduct claim.
D. Sentence Enhancement Under Section 667.5, Subdivision (a)
Defendant contends, and the Attorney General concedes, that defendant’s three-year prior prison term enhancement under section 667.5, subdivision (a) is an unauthorized sentence. We agree.
Section 667.5, subdivision (a) provides in pertinent part: “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] (a) Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c). . . .” (Italics added.)
Section 667.5, subdivision (a) expressly limits its application to offenses that are violent felonies specified in subdivision (c). The nonviolent offenses here—possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a) and possession of a cocaine pipe in violation of Health and Safety Code section 11364, subdivision (a)—are not listed in section 667.5, subdivision (c), which describes the crimes listed therein as “extraordinary crimes of violence against the person.” Because defendant’s current offenses were not violent felonies listed in subdivision (c), the three-year sentence enhancement was unauthorized. (See People v. Scott (1994) 9 Cal.4th 331, 354.) We therefore remand the matter to the trial court for resentencing in the event the trial court determines that no discovery was required or that the failure of any required discovery was not prejudicial.
Section 667.5, subdivision (c) provides: (c) “For the purpose of this section, ‘violent felony’ shall mean any of the following: (1) Murder or voluntary manslaughter. (2) Mayhem. (3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262. (4) Sodomy as defined in subdivision (c) or (d) of Section 286. (5) Oral copulation as defined in subdivision (c) or (d) of Section 288a. (6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288. (7) Any felony punishable by death or imprisonment in the state prison for life. (8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55. (9) Any robbery. (10) Arson, in violation of subdivision (a) or (b) of Section 451. (11) Sexual penetration as defined in subdivision (a) or (j) of Section 289. (12) Attempted murder. (13) A violation of Section 12308, 12309, or 12310. (14) Kidnapping (15) Assault with the intent to commit a specified felony, in violation of Section 220. (16) Continuous sexual abuse of a child, in violation of Section 288.5. (17) Carjacking, as defined in subdivision (a) of Section 215. (18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1. (19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code. (20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code. (21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary. (22) Any violation of Section 12022.53. (23) A violation of subdivision (b) or (c) of Section 11418. The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’s condemnation for these extraordinary crimes of violence against the person.”
DISPOSITION
The judgment is reversed for the limited purpose of remanding the case to the trial court for a determination of the proper scope of defendant’s discovery request and an in camera inspection of the arresting officers’ personnel records to determine whether they contain information relevant to defendant’s misconduct defense. If, after in camera review, the trial court determines there is no discoverable information in the relevant personnel records, the original judgment, which we have affirmed, shall be reinstated, and the trial court shall resentence defendant in accordance with this opinion. If the trial court determines that there is discoverable material, it should be turned over to defendant so that he may determine if it would have led to any relevant, admissible evidence that could have been presented at trial. If defendant can demonstrate that he was prejudiced by the denial of discovery, the trial court shall order a new trial. If defendant cannot demonstrate any such prejudice, the original judgment shall be reinstated, and the trial court shall resentence defendant in accordance with this opinion.
We concur: ARMSTRONG, Acting P. J. KRIEGLER, J.