P.
v. Arterberry
Filed
10/15/13 P. v.
Arterberry CA2/4
NOT TO BE PUBLISHED IN THE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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
RASHEEN GERMAIN ARTERBERRY,
Defendant
and Appellant.
B242468
(Los Angeles County
Super. Ct. No.VA116917)
APPEAL
from a judgment of the Superior Court of
Los Angeles County, Robert A. Higa, Judge. Remanded with directions.
Meredith
J. Watts, under appointment by the Court
of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Mary Sanchez and David Zarmi, Deputy Attorneys General, for
Plaintiff and Respondent.
>
Defendant
Rasheen Germain Arterberry appeals from the judgment entered following his
conviction by jury of second degree robbery and being a felon in possession of
a firearm. (Pen. Code, §§ 211, 12021,
subd. (a)(1).)
title="">[1] The jury also found that during the
commission of the robbery, defendant personally used a firearm and a principal
was armed with a firearm. (§§ 12022.53,
subd. (b), 12022, subd. (a)(1).) He
alleges sentencing error and asks this court to conduct an independent review
of the in camera hearing conducted pursuant to his Pitchess motion.
name="_ftnref2" title="">[2]
On
September 19, 2010,
Fernando Tamaura was working at a Mobil gas station in the City of Whittier. At approximately 8:30 that evening, two males grabbed Tamaura and pulled him
away from the counter where the cash register was located. One of the males was armed with a
firearm. They asked him for money. One of the assailants went through Tamaura’s
pocket and took $700 in cash. Tamaura
was forced to open the cash register and the men took approximately
$1,300. They also grabbed a cigar box
that was nearby.
When
the robbers left the location, Tamaura saw them get into a gold Pontiac,
which was being driven by a third individual.
Tamaura got into his truck and followed the Pontiac
as it left the station. Eventually,
Tamaura saw the Pontiac park in a
driveway. He lost sight of the three
suspects when they went toward a back house.
In court, Tamaura
identified a picture of the Pontiac he followed and defendant as the armed
robber.
The robbery was
captured on videotape and the recording was played for the jury.
Los Angeles County
Sheriff’s Deputy Eduardo Ayala was on duty that evening. He received a radio call informing him that a
robbery victim was following the suspects into the area where Ayala was
patrolling. The deputy met Tamaura at
the intersection of Strozier and Lerma.
Tamaura told Deputy Ayala that he last saw the suspects running
westbound. Ayala utilized the radio to
set up a containment of the area.
Whittier Police
Department Officer Angela Calzada responded to the containment area to search
for the suspects. She looked inside the Pontiac
that had been pointed out by the victim and observed a black hat, a cigar box,
and a black handgun.
Deputy Kurt
Messerschmidt and his canine arrived at the containment area. They began searching for the suspects in
backyards in the area with no success.
The deputy and the canine were dispatched to a construction site. Deputy Messerschmidt observed a small
building with a door. The dog began
barking, indicating it detected the presence of a human being. After the deputy announced he was going to
release the dog, one of the suspects emerged from the building. Subsequently, all three were taken into custody.
An officer checked
the interior of the building. On the
floor, he located jeans, shoes, a bandana, and a wallet containing defendant’s
identification. When defendant was taken
into custody, he was wearing no outer clothing.
Defendant’s mother
said she and defendant’s grandmother purchased the Pontiac
used in the robbery for defendant.
DISCUSSION
I. The Trial Court Properly Determined
That No Personnel Records
Were Discoverable
Defendant
filed a Pitchess motion seeking the
disclosure of complaints in the personnel records of Officer Michael Balzano.
an in camera hearing to determine whether complaints claiming the officer had
engaged in writing false reports or fabricating probable cause should be
disclosed to the defense. (Defendant
does not challenge the scope of the court’s ruling with regard to the subject
matter of the complaints it was to examine.)
After conducting the hearing, the court concluded that no materials were
discoverable.
Defendant
asked this court to independently review the transcript of the in camera
hearing. We have done so. The trial court had Officer Balzano’s
personnel file. It properly set forth
with particularity the subject matter of each complaint it reviewed. (See People
v. Mooc (2001) 26 Cal.4th 1216, 1229-1230.)
We conclude it did not abuse its discretion in determining that nothing
in the officer’s personnel file was discoverable. (Alford
v. Superior Court (2003) 29 Cal.4th 1033, 1039 [“A motion for discovery of
peace officer personnel records
is addressed to the sound discretion of the trial court, reviewable for
abuse.â€].)
Error Must Be Corrected and the Matter Must Be Remanded for a Trial on the
Prison Prior Allegations
The
amended information alleged that defendant had suffered two prior serious
felony convictions within the meaning of sections 1170.12, subdivisions (a)-(d)
and 667, subdivisions (b)-(i), one prior serious felony conviction within the
meaning of section 667, subdivision (a) and two convictions within the meaning
of section 1203, subdivision (e)(4). In
addition, defendant was alleged to have served two
section 667.5, subdivision (b).
Defendant
admitted he had two prior serious felony convictions within the meaning of
sections 1170.12, subdivisions (a)-(d) and 667, subdivisions (b)-(i) and,
notwithstanding the fact that the amended information alleged only one, two
prior convictions within the meaning of 667, subdivision (a). Defendant did not admit suffering the two
nonserious convictions or serving two prior prison terms. Nor was a trial conducted to dispose of the
allegations. Those allegations simply
fell through the cracks. The court
imposed a 25-year-to-life sentence for the robbery conviction, 10 years for the
gun enhancement, and 10 years pursuant to section 667, subdivision (a) (five
years for each prior) for a total term of 45 years to life. The sentence for the principal armed
allegation was stricken. A concurrent
25-year-to-life sentence was imposed for the felon in possession of a firearm
conviction.
The
parties agree that the court erred in imposing a second five-year term pursuant
to section 667, subdivision (a) and striking the sentence for the principal
armed allegation. Ignoring the fact that
the court could not impose 2 five-year sentences because defendant was charged
with only one qualifying prior under section 667, subdivision (a), the parties
correctly point out that the two robbery priors defendant suffered were brought
in the same proceeding. Section 667, subdivision
(a) provides that a five-year enhancement for a prior serious felony conviction
shall be imposed for “each such prior conviction on charges brought and tried
separately.†For that reason as well,
the trial court could properly impose only 1 five-year sentence. (In re
Harris (1989) 49 Cal.3d 131, 136-137.)
The parties also correctly conclude that the court should have imposed
and stayed the principal armed allegation instead of striking it. (People
v. Gonzalez (2008) 43 Cal.4th 1118, 1130.)
With
respect to the two section 667.5, subdivision (b) priors, the parties take
opposing positions. Defendant asserts
the trial court was aware of the two prison priors and impliedly exercised its
discretion to not impose an additional sentence. The Attorney General argues that because the
prior allegations were neither tried nor admitted, the matter must be remanded
for the court to conduct a trial. The
Attorney General has the better argument.
Defendant
waived his right to a jury trial on the prior allegations. There is no question that the section 667.5,
subdivision (b) allegations were never resolved by way of trial or
admission. (Neither were the section
1203, subdivision (e)(4) allegations, but they have no effect on defendant’s
sentence.) We confronted a similar
situation in People v. Miller (2008)
164 Cal.App.4th 653. The information
alleged that the defendant had suffered a prior conviction. However, after she waived jury trial on the
alleged prior, the trial court failed to conduct a trial or make any
findings. We concluded: “As double jeopardy protections do not apply
to the trial of prior conviction allegations (People v. Monge (1997) 16 Cal.4th 826, 845), we remand for a court
trial on the prior conviction allegation and resentencing [citation].†(People
v. Miller, supra,
The matter is
remanded to the trial court for further proceedings. If the People so desire, a court trial on the
section 667.5, subdivision (b) and 1203, subdivision (e)(4) allegations is to
be conducted.
title="">[5] The court is directed to strike one of the
five-year sentences imposed pursuant to section 667, subdivision (a) and impose
and stay the sentence pursuant to section 12022, subdivision (a). The clerk is directed to forward an amended
abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
WILLHITE,
Acting P. J.
MANELLA, J.
name="_ftn1" title="">[1]
name="_ftn2" title="">[2]
