Filed 12/16/19 P. v. Naranjo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES NARANJO,

Defendant and Appellant.

F075890

(Super. Ct. No. BF165726A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge.

Tyrone A. Sandoval and Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Ivan P. Mars, Amanda D. Cary, Louis M. Vasquez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

The day after his release on an electronic monitoring program, defendant James Naranjo removed his ankle monitor and left the group home where he was required to stay. A few days later, he was apprehended driving a stolen truck.

Defendant was charged with evading a peace officer (Veh. Code, § 2800.2, subd. (a)) (count 1), receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) (count 2), unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) (count 3), misdemeanor resisting a peace officer (§ 148, subd. (a)(1)) (count 4), and escape by force or violence from a home detention program by a prisoner (§ 4532, subd. (b)(2)) (count 5). Defendant was convicted by a jury of counts 1, 3, 4 and 5. The jury was instructed not to return a verdict for receiving a stolen vehicle (count 2) if it found defendant guilty of taking a vehicle. The jury did not return a verdict on count 2 and it was dismissed. (§ 1385.) In a bifurcated proceeding, the trial court found true that defendant was convicted of a prior serious felony within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and that he served a prior prison term (§ 667.5, former subd. (b)).

The trial court sentenced defendant to a total determinate term of 12 years 4 months. On count 1 (evasion), the court imposed the upper term of three years, doubled to six years under the Three Strikes law, plus an additional one year for the prior prison term enhancement. On count 3 (taking a vehicle), the court imposed a consecutive term of 16 months (one-third of the two-year middle term, doubled), and on count 5 (escape), the court imposed a consecutive lower term of two years, doubled to four years. On count 4 (misdemeanor resisting), the court imposed a concurrent term of 180 days in jail.

On appeal, defendant argues that his felony conviction for vehicle theft must be reduced to a misdemeanor because the prosecutor failed to prove the vehicle’s value exceeded $950. (People v. Page (2017) 3 Cal.5th 1175, 1187 (Page).) He also argues that the trial court engaged in impermissible judicial factfinding when it found true that his 2010 conviction for violating section 245, former subdivision (a)(1), qualifies as a serious offense under the Three Strikes law. (Descamps v. United States (2013) 570 U.S. 254, 270 (Descamps); People v. Gallardo (2017) 4 Cal.5th 120, 134 (Gallardo).) Finally, in supplemental briefing, defendant requests that we order the one-year prior prison term enhancement stricken in accordance with Senate Bill No. 136, which amended section 667.5, subdivision (b), effective January 1, 2020 (Sen. Bill No. 136 (2019-2020 Reg. Sess.) ch. 590, § 1 (Senate Bill No. 136 or Sen. Bill No. 136)), and that we conduct an independent review of the proceedings relating to his motion for discovery from the personnel files of two Kern County Sheriff’s deputies (Evid. Code, § 1043; Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)).

The People agree that defendant is entitled to relief under Senate Bill No. 136 and that it is appropriate for this court to conduct an independent review of the Pitchess proceedings and the trial court’s related ruling, but they otherwise dispute defendant’s entitlement to any relief on his claims.

We conclude that the trial court erred in instructing the jury on felony vehicle theft (count 3) and, given the absence of evidence on the element of value (Page, supra, 3 Cal.5th at p. 1187), the jury convicted defendant of the charge on a legally inadequate theory, compelling reversal of his conviction (People v. Aledamat (2019) 8 Cal.5th 1, 13 (Aledamat)). Consistent with this opinion, we reverse count 3 and remand the matter to the trial court, where the People may elect to either accept a reduction of count 3 to a misdemeanor or retry defendant before a properly instructed jury. (People v. Gutierrez (2018) 20 Cal.App.5th 847, 857 (Gutierrez).) We also agree that defendant is entitled to relief from the one-year prior prison term enhancement under Senate Bill No. 136, and we order, on our own motion, a correction to the abstract of judgment. The judgment is otherwise affirmed.

FACTUAL SUMMARY

I. Events Underlying Charges

Defendant, whom the parties stipulated was a prisoner serving a felony sentence at the time, was released to a sober living group home on an electronic monitoring program and was required to remain there for the first seven days. The next day, the sheriff’s department received a tamper alert notification for defendant’s ankle monitor. When deputies arrived at the facility, they were unable to locate defendant and his damaged ankle monitor was found inside a trashcan.

A few days later, at approximately 1:30 a.m., a uniformed sheriff’s deputy driving a marked patrol car stopped at a controlled intersection and observed a white truck heading in the opposite direction. As the truck, which appeared to be occupied by only the driver, proceeded through the intersection after stopping, the deputy heard screeching tires and saw the truck “burning out.” The deputy made a U-turn, activated the patrol car’s overhead lights, called in the license plate, and proceeded to initiate a vehicle stop. The driver began pulling the truck over to the right side of the road as if complying, but he then accelerated and drove to the left. The deputy activated his siren and began pursuing the truck.

Two other deputies in marked vehicles joined in the pursuit, which lasted approximately 40 minutes. During that time, defendant, who was alone in the truck, was weaving and at times speeding, and he ran one stop sign and one stop light, although he stopped at all other controlled intersections. Eventually spike strips were placed in the roadway and the truck came to a stop after its tires were punctured. Defendant continued to spin the tires even after stopping, however.

For several minutes, defendant ignored deputies’ commands to exit the vehicle. He then stuck his head out the open driver’s side window and stated, “[T]his is not my truck.” Defendant continued to ignore commands to exit the vehicle for another minute or so before deputies, one of whom was handling a police canine, pulled him from the vehicle. Defendant was then taken for a medical evaluation of the bite wounds he sustained.

II. Testimony Regarding Vehicle Theft

At trial, the registered owner of the pickup truck testified that he owns a trucking company and keeps three or four pickup trucks on his lot, along with approximately 30 large trucks. The keys to the pickup trucks are left inside so that his employees can come and go as needed. The owner was not aware that one of the pickup trucks was missing until deputies knocked on his door early on the morning of defendant’s apprehension. He accompanied deputies to his trucking lot and confirmed that a pickup truck was missing. He did not know defendant and did not give defendant permission to use the truck.

DISCUSSION

I. Conviction for Felony Vehicle Theft Absent Evidence of Value

A. Background

1. Proposition 47

“Proposition 47 was passed by voters at the November 4, 2014, General Election, and took effect the following day. The measure’s stated purpose was ‘to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment,’ while also ensuring ‘that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed.’ (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70 (Voter Information Guide).) To these ends, Proposition 47 redefined several common theft- and drug-related felonies as either misdemeanors or felonies, depending on the offender’s criminal history. The redefined offenses include: shoplifting of property worth $950 or less (Pen. Code, § 459.5, subd. (a)); forgery of instruments worth $950 or less (Pen. Code, § 473, subd. (b)); fraud involving financial instruments worth $950 or less (Pen. Code, § 476a, subd. (b)); theft of, or receiving, property worth $950 or less (Pen. Code, §§ 490.2, subd. (a), 496, subd. (a)); petty theft with a prior theft-related conviction (Pen. Code, § 666, subd. (a)); and possession of a controlled substance (Health & Saf. Code, §§ 11350, subd. (a), 11377, subd. (a)).” (People v. DeHoyos (2018) 4 Cal.5th 594, 597–598, italics added; accord, People v. Martinez (2018) 4 Cal.5th 647, 651–652.)

Proposition 47 provided for prospective changes to the law and for retrospective relief in the form of a petitioning process for those convicted and serving final sentences, or those who completed their sentences prior to the measure’s passage. (§ 1170.18, subds. (a), (f); People v. DeHoyos, supra, 4 Cal.5th at pp. 597–598; People v. Martinez, supra, 4 Cal.5th at p. 651.) The crimes in this case were committed after Proposition 47 was enacted and, therefore, we are concerned here with the prospective changes affected by the law. (People v. Lara (2019) 6 Cal.5th 1128, 1135; Gutierrez, supra, 20 Cal.App.5th at p. 855.)

2. Page Decision

Approximately three years after the passage of Proposition 47 and six months after the trial in this case, the California Supreme Court addressed the applicability of Proposition 47 to Vehicle Code section 10851, subdivision (a), which proscribes driving or taking a vehicle without the owner’s consent “with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle .…” (Veh. Code, § 10851, subd. (a).) The statute criminalizes “‘a wide range of conduct’” (People v. Garza (2005) 35 Cal.4th 866, 876) and, in Page, the high court concluded that “if the defendant was convicted under Vehicle Code section 10851, subdivision (a), of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession, he has, in fact, ‘suffered a theft conviction.’ [Citation.] [¶] By its terms, Proposition 47’s new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense. As noted, section 490.2, subdivision (a), mandates misdemeanor punishment for a defendant who ‘obtain[ed] any property by theft’ where the property is worth no more than $950. An automobile is personal property. ‘As a result, after the passage of Proposition 47, an offender who obtains a car valued at less than $950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.’” (Page, supra, 3 Cal.5th at p. 1183, first italics added.)

B. Analysis

1. Trial Court Erred in Instructing Jury

The parties agree on the following basic points. Defendant was charged with one felony count of driving or taking the victim’s truck, the jury was instructed on driving or taking pursuant to CALCRIM No. 1820, and the prosecutor argued both theories. However, the prosecutor did not introduce any evidence of the truck’s value and the jury was not instructed on the value element. (Page, supra, 3 Cal.5th at p. 1187.) The verdict form returned by the jury was expressly limited by its terms to felony taking of a vehicle and, as such, the jury convicted defendant of taking the victim’s truck. Of additional note, the parties point out that the jury was instructed that it could not convict defendant of both taking the truck (count 3) and receiving the truck (count 2), and the jury did not return a verdict on the receiving count.

Although the parties agree defendant’s conviction for felony vehicle theft cannot stand because the prosecutor failed to prove the vehicle’s value, they disagree on the nature of the error and, therefore, the appropriate remedy. Defendant argues that in the absence of any evidence as to value, his conviction for felony theft of the truck is not supported by substantial evidence. He urges us to reduce his conviction to a misdemeanor and remand the matter for resentencing in accordance with this court’s decision in In re D.N. (2018) 19 Cal.App.5th 898, 903–904 (D.N.). The People characterize the issue as one of instructional error, and they contend we should reconsider our decision in D.N. and remand the matter to allow the prosecution to present evidence of the vehicle’s value, in accordance with Gutierrez, supra, 20 Cal.App.5th at pages 857–858.

While we agree with the People to the extent that we follow the disposition in Gutierrez here, this conclusion does not compel us to revisit D.N., as the two decisions are distinguishable.

In October 2016, D.N., who was then a juvenile, was involved in committing a residential burglary. (D.N., supra, 19 Cal.App.5th at p. 900.) An officer subsequently stopped a car one block away from the scene of the burglary. (Ibid.) D.N. was a passenger in the car, which belonged to D.N.’s mother and was taken without her mother’s knowledge or permission. (Id. at pp. 900–901.) In a petition filed pursuant to Welfare and Institutions Code section 602, the People alleged that D.N. committed residential burglary (Pen. Code, § 460, subd. (a)) and vehicle theft (Veh. Code, § 10851, subd. (a)), and the juvenile court subsequently found the allegations true. (D.N., supra, at p. 900.) The People did not allege D.N. committed unlawful driving, which does not require evidence of value and, as the proceedings occurred in juvenile court, the case did not involve instruction to a jury on unlawful driving.

Following supplemental briefing ordered on the court’s motion, D.N. argued that because the People failed to establish the car’s value exceeded $950, they failed to prove she committed grand theft in accordance with Proposition 47. (D.N., supra, 19 Cal.App.5th at p. 901.) The People argued that Vehicle Code section 10851 does not fall within the purview of Proposition 47 or Penal Code section 490.2. (D.N., supra, at p. 901.) The California Supreme Court thereafter resolved that issue in Page, as discussed above, to the effect that proof of value in excess of $950 must be proved for a felony theft charge. In D.N., this court concluded that the People were on notice of the change in the law under Proposition 47 and, therefore, double jeopardy barred retrial of D.N. to establish the car’s value. (D.N., supra, at pp. 903–904.) Accordingly, this court reduced D.N.’s felony adjudication to a misdemeanor and remanded the matter for the juvenile court to amend its orders accordingly. (Id. at p. 904.)

In Gutierrez, as here, the defendant was charged, in relevant part, with driving or taking a vehicle without the owner’s consent, the jury was so instructed, and the prosecutor argued both theories. (Gutierrez, supra, 20 Cal.App.5th at pp. 849–852.) Post-Proposition 47 but prior to the decision in Page, a jury convicted the defendant of a felony violation of Vehicle Code section 10851 in the absence of any proof the stolen vehicle was valued at more than $950. (Gutierrez, supra, at pp. 852–853.) On appeal, the court disagreed with D.N. and analyzed the issue as one of instructional error: the jury was instructed both on a legally valid driving theory and on a theft theory that was legally invalid in the absence of evidence on the element of value. (Gutierrez, supra, at pp. 856–858.) The court was unable to determine on which theory the defendant was convicted and, therefore, it reversed the conviction and remanded the matter for retrial. (Id. at pp. 857–858.)

In this case, like the defendant in Gutierrez and in contrast with the juvenile in D.N., defendant was charged with driving or taking the victim’s truck, and the jury was instructed on two theories of liability: one legally correct (driving) and one, in the absence of the value element, legally incorrect (taking). (Gutierrez, supra, 20 Cal.App.5th at pp. 849–852; accord, People v. Jackson (2018) 26 Cal.App.5th 371, 378 & fn. 7; see People v. Bussey (2018) 24 Cal.App.5th 1056, 1062 [following Gutierrez], review granted Sept. 12, 2018, No. S250152 [review granted & briefing deferred pending a decision in People v. Orozco (2018) 24 Cal.App.5th 667, review granted Aug. 15, 2018, No. S249495, on the issue of whether Prop. 47 applies to convictions for receiving stolen property under § 496d].) The decision in D.N. is therefore procedurally distinguishable from that in Gutierrez, as discussed, and we observe further that as the law has continued to develop, the weight of authority favors framing the issue, at least in cases such as this, as one of instructional error as in Gutierrez. (People v. Jackson, p. 378, fn. 7.)

2. Error Prejudicial

In Aledamat, the California Supreme Court resolved the issue of which standard of review applies where the jury is instructed on a legally correct theory and a legally incorrect theory, concluding that the federal harmless error standard of review articulated in Chapman v. California (1967) 386 U.S. 18, 24 applies. (Aledamat, supra, 8 Cal.5th at pp. 7–8 & 13, disapproving People v. Green (1980) 27 Cal.3d 1, 69 [“[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.”].) The court explained that where the jury is instructed on a factually inadequate theory, “the theory is incorrect only because the evidence does not support it.” (Aledamat, supra, 8 Cal.5th at p. 7.) “‘[I]f the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.’” (Ibid.)

In contrast, a legally inadequate, or incorrect, theory is contrary to law. (Aledamat, supra, 8 Cal.5th at p. 7, citing People v. Guiton (1993) 4 Cal.4th 1116, 1128.) “An example of this second category ‘is a case where the inadequate theory “fails to come within the statutory definition of the crime.”’” (Aledamat, supra, at p. 7, quoting People v. Guiton, supra, at p. 1128.) “When the theory is legally erroneous—i.e., of a kind the jury is not equipped to detect—a higher standard must be met for the error to be found harmless. ‘These different tests reflect the view that jurors are “well equipped” to sort factually valid from invalid theories, but ill equipped to sort legally valid from invalid theories.’” (Aledamat, supra, at p. 7.)

In sum, “‘[a] legal error is an incorrect statement of law, whereas a factual error is an otherwise valid legal theory that is not supported by the facts or evidence in a case. [Citation.] Between the two, legal error requires a more stringent standard for prejudice, for jurors are presumed to be less able to identify and ignore an incorrect statement of law due to their lack of formal legal training. [Citation.] Factual errors, on the other hand, are less likely to be prejudicial because jurors are generally able to evaluate the facts of a case and ignore factually inapplicable theories.’” (Aledamat, supra, 8 Cal.5th at p. 8, quoting People v. Stutelberg (2018) 29 Cal.App.5th 314, 318.)

Given that the jury here convicted defendant of taking the truck in the absence of instruction on an element of the offense, his conviction rests on a legally incorrect theory and reversal is therefore required. (Aledamat, supra, at p. 13; People v. Jackson, supra, 26 Cal.App.5th at pp. 380–381 [reversing conviction where unable to conclude instructional error was harmless beyond a reasonable doubt]; Gutierrez, supra, 20 Cal.App.5th at pp. 857–858 [same].)

II. Finding on Prior Conviction for Assault with Deadly Weapon

A. Background

The amended information in this case alleged that defendant suffered a prior felony conviction in 2010 for assault in violation of section 245, subdivision (a)(1), within the meaning of section 667, subdivisions (c) through (j), and section 1170.12, subdivisions (a) through (e) (the Three Strikes law). The trial court, in a bifurcated proceeding, found the allegation that defendant suffered a prior serious felony conviction within the meaning of the Three Strikes law true. Relying on Descamps and Gallardo, discussed, post, defendant claims the trial court erred in finding that he suffered a prior serious felony conviction within the meaning of the Three Strikes law because his plea does not indicate he admitted to committing assault with a deadly weapon and the exhibits provided by the prosecutor do not contain a statement of facts to which he admitted. We find no merit to this claim.

B. Standard of Review

“The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt.” (People v. Miles (2008) 43 Cal.4th 1074, 1082.) “On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.” (Id. at p. 1083.)

C. Sixth Amendment Limitation on Judicial Factfinding

“Under the Sixth Amendment to the United States Constitution, as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), any fact, other than the fact of a prior conviction, that increases the statutorily authorized penalty for a crime must be found by a jury beyond a reasonable doubt.” (Gallardo, supra, 4 Cal.5th at p. 123.) “‘The Sixth Amendment contemplates that a jury—not a sentencing court—will find’ the facts giving rise to a conviction, when those facts lead to the imposition of additional punishment under a recidivist sentencing scheme. (Descamps, supra, 570 U.S. at p. 269.) This means that a sentencing court may identify those facts it is ‘sure the jury … found’ in rendering its guilty verdict, or those facts as to which the defendant waived the right of jury trial in entering a guilty plea. (Ibid.) But it may not ‘rely on its own finding’ about the defendant’s underlying conduct ‘to increase a defendant’s maximum sentence.’ (Id. at p. 270.)” (Gallardo, supra, 4 Cal.5th at p. 134.)

Thus, “[t]he trial court’s role is limited to determining the facts that were necessarily found in the course of entering the conviction. To do more is to engage in ‘judicial factfinding that goes far beyond the recognition of a prior conviction.’” (Gallardo, supra, 4 Cal.5th at p. 134, quoting Descamps, supra, 570 U.S. at p. 255.) “[A] court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the ‘nature or basis’ of the prior conviction based on its independent conclusions about what facts or conduct ‘realistically’ supported the conviction. [Citation.] That inquiry invades the jury’s province by permitting the court to make disputed findings about ‘what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct.’ (Descamps, supra, [570 U.S.] at p. 269.) The court’s role is, rather, limited to identifying those facts that were established by virtue of the conviction itself—that is, [as stated,] facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.” (Gallardo, supra, at p. 136, fn. omitted.) Courts are permitted “to review materials such as charging documents, jury instructions, and any agreed-to factual basis for a guilty plea, but [may not] make findings about the real conduct underlying the conviction based on police reports or complaint applications.” (Id. at p. 131, citing Shepard v. United States (2005) 544 U.S. 13, 22–23, 26.)

D. Analysis

When defendant was convicted of assault in 2010, section 245, former subdivision (a)(1), proscribed the commission of an “assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury .…” (Italics added.) Assault with a deadly weapon is a serious and, therefore, qualifying felony under the Three Strikes law. (§§ 667, subds. (a)(1), (d)(1), 1192.7, subd. (c)(1)(31); Gallardo, supra, 4 Cal.5th at p. 125; Hudson, supra, 28 Cal.App.5th at p. 203.) Assault by means of force likely to produce great bodily injury, in contrast, is not categorized as a serious or violent felony under the Three Strikes law and is, therefore, not a qualifying felony for the purpose of applying the Three Strikes sentencing scheme. (Gallardo, supra, at p. 125; Hudson, supra, at p. 203.)

While defendant is correct that the plea form does not specify the factual basis for his 2010 conviction, he was charged neither with a generic violation of section 245, former subdivision (a)(1), nor with “assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury .…” (§ 245, former subd. (a)(1), italics added.) Rather, defendant was specifically charged with only “assault … with a deadly weapon, to wit: a vehicle” (capitalization omitted), and he pled no contest to that count as charged. Under these circumstances, defendant necessarily pled no contest to assault with a deadly weapon, which is a qualifying offense under the Three Strikes law, and the trial court did not engage in judicial factfinding to reach this conclusion; the court merely reviewed the unambiguous record of conviction. (Descamps, supra, 570 U.S. at p. 264, fn. 2; Gallardo, supra, 4 Cal.5th at p. 131.)

This situation is distinguishable from those at issue in Gallardo and in Hudson. In those cases, as here, the defendants pled guilty to assault under section 245, former subdivision (a)(1), which encompassed assault both with a deadly weapon and by means of force likely to produce great bodily injury, as stated. (Gallardo, supra, 4 Cal.5th at p. 123; Hudson, supra, 28 Cal.App.5th at p. 202.) However, in Gallardo, the plea agreement did not specify assault with a deadly weapon and the trial court relied solely on the preliminary hearing transcript in determining that the defendant pled guilty to assault with a deadly weapon. (Gallardo, supra, at p. 136.) Similarly, in Hudson, this court reversed the trial court’s true finding where the defendant was charged, in an information that contained handwritten changes, with assault with a deadly weapon and by means of force likely to produce great bodily injury; the plea agreement did not specify the basis for the conviction; and the trial court considered the preliminary hearing transcript in determining that the defendant pled to assault with a deadly weapon. (Hudson, supra, at pp. 202–203, 208–209.)

Here, as discussed, the trial court did not stray beyond the bounds of the unambiguous charging document and the plea agreement. (Gallardo, supra, 4 Cal.5th at p. 131.) Therefore, we reject defendant’s claim of error.

III. Senate Bill No. 136

As previously set forth, the trial court found true that defendant suffered a prior serious felony conviction for which he served a prison term and it imposed a one-year sentence enhancement. (§ 667.5, former subd. (b).) In supplemental briefing, defendant requests that the prior prison term enhancement be stricken in light of Senate Bill No. 136, which amended section 667.5, subdivision (b), effective January 1, 2020.

Pursuant to section 667.5, subdivision (a), courts are required to impose a three-year sentence for each prior, separate prison term served by the defendant where the prior offense and the current offense were both violent felonies as defined in subdivision (c) of section 667.5. For other felonies, section 667.5, former subdivision (b), imposed an additional one-year term for each prior, separate prison term or county jail felony term, except under specified circumstances. As amended by Senate Bill No. 136, subdivision (b) of section 667.5 limits imposition of the additional one-year term to each prior, separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).

In accordance with the California Supreme Court’s decision in In re Estrada (1965) 63 Cal.2d 740, 744 (Estrada), “‘“[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute’s effective date” [citation], unless the enacting body “clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent” [citations].’” (People v. Lara, supra, 6 Cal.5th at p. 1134, quoting People v. DeHoyos, supra, 4 Cal.5th at p. 600.) The parties agree that Senate Bill No. 136 is retroactive under Estrada and, therefore, the amendment to section 667.5, subdivision (b), applies in this case.

The parties also agree that defendant’s 2010 felony conviction for assault, in violation of section 245, former subdivision (a)(1), is not a qualifying offense under section 667.5, subdivision (b), as amended. We accept the People’s concession on both points and order defendant’s one-year prior prison term enhancement stricken on remand.

IV. Pitchess Review

A. Background

Defendant filed a motion seeking discovery from the personnel files of two deputies involved in the vehicle pursuit and his subsequent apprehension. The prosecutor opposed the motion. The trial court found good cause to conduct an in camera review of the deputies’ personnel files, limited to complaints of false reporting and, as to one deputy, complaints of excessive force. (Evid. Code, § 1043.) The trial court identified two items it deemed discoverable and ordered the disclosure of names, addresses and telephone numbers of witnesses related to those items; and counsel for Kern County represented that he would prepare a protective order.

Defendant requests that we conduct an independent review of the Pitchess proceedings to ensure that the trial court complied with the procedural requirements set forth in People v. Mooc (2001) 26 Cal.4th 1216, 1228–1229 (Mooc), and that it did not abuse its discretion in denying discovery. The People do not oppose this request.

B. Legal Standard

The procedure for obtaining discoverable information from law enforcement personnel files is well established. Pursuant to Evidence Code section 1043, subdivision (b), “on a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both ‘“materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ [Citation.] A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’ [Citation.] If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], ‘the trial court should then disclose to the defendant “such information [that] is relevant to the subject matter involved in the pending litigation.”’” (People v. Gaines (2009) 46 Cal.4th 172, 179.)

On appeal, a defendant may request we conduct an independent review of the proceedings and the trial court’s determination regarding the presence or absence of discoverable information. (People v. Townsel (2016) 63 Cal.4th 25, 67–68; People v. Yearwood (2013) 213 Cal.App.4th 161, 179–180.) “A trial court is afforded wide discretion in ruling on a motion for access to law enforcement personnel records. The decision will be reversed only on a showing of abuse of discretion.” (People v. Yearwood, supra, at p. 180, citing People v. Hughes (2002) 27 Cal.4th 287, 330.)

C. No Abuse of Discretion

We have independently reviewed the record and examined the deputies’ personnel files. We find the trial court followed the proper procedure and created an adequate record of the in camera hearing (see Mooc, supra, 26 Cal.4th at pp. 1228–1229; People v. Yearwood, supra, 213 Cal.App.4th at p. 180), and we conclude the court did not abuse its discretion in determining that there was no information subject to disclosure beyond that related to the two items it identified in granting defendant’s motion for discovery (People v. Samayoa (1997) 15 Cal.4th 795, 827).

V. Clerical Error in Abstract of Judgment

Finally, we have the authority to correct clerical errors on our own motion. (§ 1260; People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705; People v. Amaya (2015) 239 Cal.App.4th 379, 385.) The abstract of judgment in this case incorrectly reflects that defendant was convicted by plea rather than by jury. The trial court shall, in the course of issuing an amended abstract of judgment following further proceedings, correct this clerical error.

DISPOSITION

Defendant’s conviction on count 3 for felony vehicle theft in violation of Vehicle Code section 10851, subdivision (a), is reversed and this matter is remanded as to count 3 for further proceedings consistent with this opinion. On remand, the People may either accept a reduction of the charged offense in count 3 to a misdemeanor, with the court to resentence defendant in accordance with that election, or retry defendant for a felony violation of Vehicle Code section 10851, subdivision (a). On remand, the trial court shall also strike the one-year prior prison term enhancement imposed under Penal Code section 667.5, former subdivision (b). Following further proceedings consistent with this opinion, the trial court shall issue an amended abstract of judgment and forward it to the appropriate authorities, ensuring that the clerical error identified herein is corrected to reflect that as to counts 1, 4 and 5, defendant was convicted by jury. Except as modified, the judgment is affirmed.

MEEHAN, J.

WE CONCUR:

HILL P.J.

LEVY, J.