Filed 3/28/19 P. v. Grier 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

NATHANIEL GRIER, JR.,

Defendant and Appellant.

F076074

(Super. Ct. No. BF165271A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge.

Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant, Nathaniel Grier, Jr., was convicted by a jury of evading a peace officer (Veh. Code, § 2800.2; count 1), possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 2), possession of ammunition by a felon (§ 30305, subd. (a)(1); count 3), possession of a controlled substance while armed with a loaded and operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count 4), and carrying a loaded and stolen firearm (§ 25850, subd. (c)(2); count 5). The trial court sentenced appellant to four years eight months in state prison. Appellant’s sentence consisted of the following: the upper term of four years for possession of a controlled substance while armed in count 4 and a consecutive sentence of eight months based on one-third of the middle term sentence for evading a peace officer in count 1, while the sentences for possession of a firearm by a felon in count 2, possession of ammunition by a felon in count 3, and carrying a loaded and stolen firearm in count 5 were stayed pursuant to section 654.

Appellant presents two claims. He first requests we conduct an independent review of the trial court’s determination to disclose some, but not all, of Officer Jesse Perez’s personnel file. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) Second, appellant contends the trial court failed to properly describe all the fines and fees imposed in the abstract of judgment.

The People do not object to an independent review of the trial court’s resolution of appellant’s Pitchess motion. Following independent review of the Pitchess motion proceedings and the personnel files, we conclude the trial court followed the proper procedures and did not withhold any discoverable information. However, we agree the matter should be remanded for the trial court to prepare an amended abstract of judgment that accurately sets forth all applicable fines, fees, and assessments.

FACTUAL BACKGROUND

While on patrol on August 17, 2016, Bakersfield police officer Jesse Perez observed a vehicle traveling at a high rate of speed and also failing to stop at a stop sign. Perez turned on his patrol vehicle’s lights and siren and initiated a pursuit. The vehicle accelerated, failed to stop at several intersections, and nearly caused a collision. During the pursuit, Perez was able to see appellant’s face reflected in the driver’s side rearview mirror. The vehicle eventually turned into an alleyway and stopped. Two other officers responded to the alleyway to assist in locating appellant. After searching the area, they encountered appellant sitting in a chair in the front yard of a nearby residence. Appellant was sweaty and out of breath. Perez recognized appellant as the same person driving the vehicle during the pursuit.

A search of the vehicle revealed a loaded Glock .40-caliber handgun, a spent shell casing, crystal methamphetamine, and a piece of rock cocaine. The handgun was identified as having been stolen during a burglary in May 2016.

Appellant testified in his defense. He stated two men approached him and asked for help in removing a bullet from a gun clip. Appellant explained he agreed to give the two men a ride to the store but was pursued by law enforcement before they got there. One of the men hit appellant with the gun and threatened to kill him if he did not drive away. Both men fled the vehicle.

On rebuttal, Perez testified that following appellant’s arrest, appellant told him his vehicle had been stolen from him while he was washing it at his daughter’s residence, and the handgun found inside the vehicle belonged to his wife.

DISCUSSION

I. Independent Review of Pitchess Proceedings

Appellant requests we conduct an independent review of the Pitchess proceedings to ensure the trial court complied with the procedural requirements set forth in People v. Mooc (2001) 26 Cal.4th 1216, 1228–1229, and it did not abuse its discretion in refusing to disclose additional information from Perez’s personnel file. The People do not oppose the request.

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.)

The trial court ruled defendant was entitled to discovery of several of the investigative reports contained in Perez’s personnel files. Upon our independent review, we find the trial court complied with the proper procedural requirements set forth in People v. Mooc, supra, 26 Cal.4th at pages 1228–1230, and our review of the files reveals all the relevant documents were disclosed. The court did not abuse its discretion, therefore, in declining to disclose any further information from the files.

II. Correction of the Abstract of Judgment

Appellant asserts the trial court erred in failing to specify in the abstract of judgment all the fines, fees, and penalties in sufficient detail. Specifically, the court imposed a drug program fee in the amount of $100 pursuant to Health and Safety Code section 11372.7 along with a $310 penalty assessment. However, rather than separately listing the fee and assessment, the abstract shows the aggregate amount of $410 for both the drug program fee and the penalty assessment. Respondent agrees the matter must be remanded to allow the trial court to correct the abstract of judgment.

“Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment.” (People v. High (2004) 119 Cal.App.4th 1192, 1200.) “If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency.” (Ibid.) As the abstract of judgment is not sufficiently specific, the matter must be remanded to correct the abstract of judgment.

DISPOSITION

The superior court is directed to prepare an amended abstract of judgment separating the $310 penalty assessment from the $100 drug program fee. The court shall forward the corrected abstract of judgment to the appropriate authorities. The judgment is otherwise affirmed.