People v. Fletes CA2/7 ( 2020 )

Filed 11/19/20 P. v. Fletes CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B302032
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA477983)
v.
RICHARD RANDALL
FLETES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Renee F. Korn, Judge. Affirmed with
directions.
Jennifer A. Gambale, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, David A. Voet, Deputy Attorney General, for
Plaintiff and Respondent.
_____________________________
A jury convicted Richard Randall Fletes of possession of a
firearm by a felon (Pen. Code, § 29900, subd. (a)(1))1 and
possession of ammunition by a person prohibited from owning a
firearm (§ 30305, subd. (a)(1)).2 Prior to trial Fletes admitted he
had suffered a prior serious or violent felony conviction within
the meaning of the three strikes law (§§ 667, subds. (b)-(i),
1170.12) and had served two separate prison terms for felonies
within the meaning of former section 667.5, subdivision (b).
Fletes was sentenced to an aggregate state prison term of
seven years four months: the upper term of three years for
possession of a firearm, doubled under the three strikes law, and
a consecutive term of eight months for possession of ammunition,
doubled under the three strikes law. The court did not impose a
sentence for the prior prison term enhancements.
On appeal Fletes asks that we review the in camera
proceeding conducted by the trial court to determine whether it
properly concluded there was no discoverable material to which
he was legally entitled under Evidence Code sections 1043 and
1045 and Pitchess v. Superior Court (1974) 11 Cal. 3d 531
(Pitchess). We affirm with directions to the trial court to correct
1 Statutory references are to this code unless otherwise
stated.
2 The jury found Fletes not guilty of battery against a peace
officer (§ 243, subd. (c)(2)) and was unable to reach a unanimous
verdict on a charge of resisting an executive officer (§ 69,
subd. (a)). The latter charge was ultimately dismissed on the
prosecutor’s motion.
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errors in the minute order for the sentencing hearing and the
abstract of judgment.
DISCUSSION
1. The Trial Complied with Its Obligations Under Pitchess
Prior to trial Fletes moved for discovery of the personnel
records of Los Angeles County Sheriff Deputies Ricardo
Hernandez and Joshua Jones concerning complaints or discipline
involving “aggressive behavior, violence, excessive force, or
attempted violence, coercive conduct, violation of constitutional
rights, fabrication of charges, fabrication of evidence, fabrication
of reasonable suspicion and/or probable cause, illegal
search/seizure; false arrest, perjury, dishonesty, writing of false
police reports, writing of false police reports to cover up the use of
excessive force, planting of evidence, false or misleading internal
reports including but not limited to false overtime or medical
reports, and any other evidence of misconduct amounting to
moral turpitude.” The Los Angeles County Sheriff’s Department
opposed the motion. The trial court found good cause and
granted the motion, limited to allegations of writing false reports,
fabrication of evidence, planting of evidence, excessive force and
false arrests.
At an in camera hearing on August 6, 2019 the trial court
reviewed the requested records in Deputy Hernandez’s and
Deputy Jones’s files to determine whether there were any
complaints that fell within the five-year review period allowed
under Pitchess and were relevant to Fletes’s case. The court
described each allegation thoroughly for the record (see People v.
Mooc (2001) 26 Cal. 4th 1216, 1229) and found no discoverable
information.
3
At Fletes’s request, which the Attorney General did not
oppose, we have reviewed the sealed transcript of the in camera
proceedings and conclude the trial court satisfied the minimum
requirements in determining whether there was discoverable
information. No abuse of discretion occurred. (See People v.
Townsel (2016) 63 Cal. 4th 25, 68; People v. Mooc, supra,
26 Cal.4th at p. 1229.)
2. A Limited Remand Is Necessary for the Trial Court
To Correct Errors in the Record
a. The October 22, 2019 minute order must be corrected
During the sentencing hearing on October 22, 2019 the
trial court declined to impose the two one-year sentence
enhancements for Fletes’s prior prison terms pursuant to former
section 667.5, subdivision (b),3 stating, “The court’s not going to
impose the additional two years at this time.” Because the only
options for the trial court were to impose the enhancements or
strike them, we presume from this language the court intended to
strike the section 667.5, subdivision (b), enhancements.4 (See
3 Former section 667.5, subdivision (b), in effect at the time
of sentencing, provided for an enhancement of one year for each
prior separate prison term served for “any felony.” Effective
January 1, 2020, however, the Legislature amended the statute
to specify that only sexually violent offenses are subject to this
enhancement. (§ 667.5, subd. (b), as amended by Stats. 2019,
ch. 590, § 1.)
4 Even if the trial court’s intention was unclear, the
section 667.5, subdivision (b), enhancements must be stricken
because the amendments to section 667.5 are retroactive. (See
People v. Jennings (2019) 42 Cal. App. 5th 664, 680 [recent
amendments to section 667.5 apply retroactively to all cases not
4
People v. Langston (2004) 33 Cal. 4th 1237, 1241 [“[o]nce the prior
prison term is found true within the meaning of section 667.5(b),
the trial court may not stay the one-year enhancement, which is
mandatory unless stricken”]; People v. Brewer (2014)
225 Cal. App. 4th 98, 104 [“‘[t]he trial court has no authority to
stay an enhancement, rather than strike it . . . when the only
basis for doing either is its own discretionary sense of justice’”];
Cal. Rules of Court, rule 4.447(b) [while a court may strike an
enhancement, it may not stay an enhancement unless an
unlawful sentence results].)
The minute order for the sentencing hearing, however, fails
to indicate the enhancements were stricken—it does not mention
the enhancements at all. Accordingly, the minute order for the
October 22, 2019 sentencing hearing must be modified to state
the sentences for the two one-year prior prison term
enhancements pursuant to former section 667.5, subdivision (b),
were stricken. (See People v. Farell (2002) 28 Cal. 4th 381, 384,
fn. 2 [record of court’s oral pronouncement controls over clerk’s
minute order]; People v. Mitchell (2001) 26 Cal. 4th 181, 186-187
[appellate court may order correction of clerical errors on its own
motion or upon application of the parties].)
b. The abstract of judgment must be corrected
Despite having been convicted by a jury for possession of a
firearm and ammunition, the abstract of judgment indicates
Fletes pleaded guilty or no contest to the charges. Fletes
contends, the Attorney General concedes, and we agree, the trial
yet final as of their effective date]; see also In re Estrada (1965)
63 Cal. 2d 740.)
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court must amend the abstract of judgment to state Fletes was
convicted by a jury.
DISPOSITION
The judgment is affirmed. The superior court is directed to
modify the minute order for the October 22, 2019 hearing and to
prepare a corrected abstract of judgment in accordance with this
opinion. The corrected abstract of judgment is to be forwarded to
the Department of Corrections and Rehabilitation.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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