P. v. Cajas



















Filed 6/20/12 P. v. Cajas CA2/3









NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE




>

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CAJAS, Defendant and Appellant.

B230566 (Los Angeles County Super. Ct. No. LA064924)

APPEAL from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Elizabeth A. Lippitt, Judge. Affirmed in part, reversed in part, and
remanded.

Michael Allen, 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, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys
General, for Plaintiff and Respondent.



_________________________

>

Defendant
and appellant, Anthony Cajas, appeals the judgment entered following his
conviction for possession of a firearm
by a felon, with prior serious felony and prior prison term findings (former
Pen. Code, §§ 12021, subd. (a)(1), now § 29800, subd. (a)(1), 667,
subd. (b)-(i), 667.5).href="#_ftn1"
name="_ftnref1" title="">[1] He was sentenced to state prison for a term
of six years.

The
judgment is affirmed in part, reversed in part, and remanded for further
proceedings.

>BACKGROUND

Viewed
in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established the following.

1. Prosecution
evidence.

At 11:00 p.m. on April 22, 2010, Los Angeles Police Officer
Jose Moya and his partner, Officer Freddie Piro, went to the rear parking lot
of an apartment complex in Van Nuys.
Officers Thomas and Pungcharhref="#_ftn2"
name="_ftnref2" title="">[2]
arrived at about the same time and initially stayed in front of the complex.

As
Moya and Piro approached a carport area, they saw defendant Cajas and two other
men. There was a strong smell of
marijuana and one of Cajas’s companions was holding a glass pipe. Piro told the men to keep their hands where
he could see them, and he used his flashlight to signal Thomas and Pungchar to
come to the rear of the apartment complex.
Cajas started running toward the north wall of the complex. This wall was five or six feet high and
it bordered an adjacent apartment complex.
In a loud voice, Officer Moya ordered Cajas to stop, but Cajas kept
running. Moya testified he chased after
Cajas. As they were running, Moya saw
Cajas reach under his shirt or sweater and into his front waistband, and then
toss a black object that looked like a gun over the wall. Piro, who was following directly behind Moya,
testified he saw Cajas reach into his waistband area, pull out a gun, and throw
it over the wall.

Moya
grabbed Cajas’s sweater and ordered him to stop running, but Cajas kept going
and tried to climb over the north wall.
He failed, however, because Moya was holding onto him. Cajas then ran toward the west wall, with
Moya still holding onto his sweater.
Cajas tried to jump the wall, but he hit his head on it instead. Cajas then started running eastward, but he
tripped over a ladder and fell to the ground.
Moya jumped on top of him and a struggle ensued because Moya was unable
to control Cajas by himself.

Thomas
testified he and Pungchar were still at the front of the apartment complex when
they responded to Piro’s call for assistance:
“I saw their flashlight, and they told us to come to the back. [¶]
During that time as we were making our way to the west side of the
driveway of that building, we heard commotion and yelling, so we ran back to
the rear to assist them.” Once he
reached the rear of the complex, Thomas saw Cajas going toward the west wall,
dragging Moya behind him. As Thomas
watched, Cajas, Moya and Piro all tripped over a ladder and fell to the
ground. Thomas “got on top of the
defendant’s left shoulder area to keep him from resisting and trying to break
free.” “At some point, I applied a
handcuff on the left wrist, and I advised the other officers that I had a
handcuff on that wrist. I was unable to
get another wrist to complete the cuffing because it was dark and ivy was
hanging from the wall.” Cajas ignored
Thomas’s order to surrender his other hand.
Finally, one of the other officers grabbed Cajas’s right wrist and
Thomas was able to clamp on the second handcuff. At that point, Cajas stopped resisting.

Piro testified
that during this struggle he punched Cajas in the face in order to subdue
him: “[W]hen [Cajas] tripped and we were
trying to take him in custody, he was thrashing around, just trying to turn and
twist and keep his arms from being handcuffed.
At that point, after I was notified that Officer Thomas had put the
handcuff on his left hand, I was trying to gain control of his right
arm[ ]. [¶] When I first finally grabbed his arm, I
couldn’t pull it out because it was intertwined in ivy. I couldn’t get his arm out. I had to . . . reach in
there. And I was yelling at him to stop
moving around, because I couldn’t get his arm out of the ivy. I said, ‘Stop moving. I’m trying to get it out.’ I grabbed his wrist, and I had to actually
remove twines to get his hands out of the ivy.
[¶] When I finally pulled his
hand out . . . he tried to pull it away from me and trying to thrash
to get away from me so I struck him in the face.”

After
Cajas was finally subdued, Moya jumped over the north wall. There he saw a gun on the ground next to a
car. Thomas testified he witnessed
Pungchar take possession of this gun.

A.S.
lived in the apartment complex on the other side of the north wall. At 11:00 p.m.
on April 22, 2010,
A.S. was inside his apartment when he heard people arguing or yelling, and then
someone said, “Get him,” or “Get her.”
“After that, I got up and looked out and watching, you know, was hearing
all this noise. And after it quieted down just a little bit, it was like seconds,
then I heard like a loud bang . . . or something. And then I looked again. Like, I see someone toss something, and I
noticed something on the ground.”
(Italics added.) A.S. described
this “bang”: “[I]t was a hard hit. Like if it hit one of the cars that was
parked, and then . . . like clack, clack, clack. It hit the car and it bounced off the car,
and it kept bouncing on the ground. Like
a clacking sound.” Immediately before
that loud bang, A.S. had heard a noise as if someone were climbing on top of
his garbage can.

A.S.
looked outside and saw a gun on the ground next to his neighbor’s car. The gun had not been there earlier in the
day. A.S. did not actually see anyone
throw anything over the wall or climb onto his garbage can, but testified he
recognized the initial sound as the one he usually heard when someone stepped
on his garbage can while climbing over the wall.

A.S. called 911,
and he later saw several police officers at the spot where he had seen the gun.

Piro
testified that when Cajas was searched at the police station he was wearing a
belt around his midsection or the bottom of his ribs. The belt had “a slit in it to where the
firearm could fit perfectly in the – it looked like two pieces of leather, and
it looked like it had been separated so the firearm could fit in there
perfectly.”href="#_ftn3" name="_ftnref3"
title="">[3] Cajas was wearing basketball shorts. Thomas also testified he saw this belt when
Cajas’s shirt was removed: “He had a
belt that was affixed to his – it would be above his waist area between his
abdomen and chest area.”

2. Defense
evidence.

Cajas
testified that on the night in question he was sitting on a milk crate in the
carport of the apartment complex. He and
two other people were smoking marijuana.
A fourth man was urinating near a parked truck. Cajas saw this fourth man jump over the wall
as soon as the police arrived. Cajas
started running when this happened.
Because he was on parole, he feared he would be sent to jail for smoking
marijuana.

Cajas
denied having tried to jump over the wall.
He was running away from Moya when he caught his foot in the ladder. Piro came up from behind and hit Cajas in the
back of the neck with his forearm, causing Cajas’s head to hit the wall. Thomas grabbed Cajas and pushed him down on
the ladder, and then Piro punched Cajas in the eye. Cajas suffered href="http://www.sandiegohealthdirectory.com/">multiple injuries from this
assault and had to be hospitalized. He
had not been wearing a belt that night; nor did he have a gun or throw a gun
over the wall. Cajas acknowledged having
two prior felony convictions.

Malcolm
Garland testified about an unrelated incident involving Officer Piro that
occurred in March 2008. Garland saw
Piro and Officer Ricardo Gutierrez harassing a kid on the street and “roughing
him up.” Garland, who was holding a
glass of liquor, approached the officers and asked if there was a problem. The officers immediately “rushed”
Garland: “They turned away from the kid,
and they stepped up to me fast and hard.”
“They said, ‘Get back. Get
back. This is none of your
business. Stay out of the business.” When Garland started writing down the
officers’ license plate number, Gutierrez grabbed Garland and href="http://www.fearnotlaw.com/">handcuffed him. Piro said Garland had caused a bicycle to
swerve and they were going to give him a traffic citation, but Garland
testified there had not been any bikes in the area. Garland refused to sign the citation because
the allegations were fabricated. He was
then driven to the police station.
During the ride, Piro was very upset:
he “[s]tarted going off in the car.
It was like he was crazy.” The
officers told their supervisor Garland had been drunk and out of control, which
was untrue. Based on his interaction
with Officer Piro that day, Garland did not believe he was a truthful person.

3.
Prosecution
rebuttal evidence.

Officer
Gutierrez denied Garland’s version of what happened in March 2008. Gutierrez and Piro had stopped a known gang
member to insure he was complying with his probation conditions. Garland approached and asked why the officers
were harassing a law-abiding citizen.
Garland was holding an alcoholic drink and appeared to be
intoxicated. He refused to comply with
the officers’ orders to back away.

Garland
kept walking back and forth across the street and, at one point, he stepped
into the path of a bicycle causing it to swerve. Piro wrote out a traffic citation, which
Garland refused to sign. The officers
had to let the gang member go because they were dealing with Garland. A supervisor came to the scene and explained
that signing the citation did not constitute an admission of guilt, but still
Garland refused to sign. He was
ultimately arrested for interfering with a police investigation. Gutierrez testified he did not observe Piro
do anything improper. Garland filed a
complaint against the two officers, but his allegations were determined to be
unfounded.

Piro
testified and confirmed Gutierrez’s version of the encounter with Garland.

CONTENTIONS

1. The trial court erred by excluding evidence
showing Piro was biased against Hispanics.

2. The trial court erred by restricting the
scope of Cajas’s Pitchess discovery.

3. There was insufficient evidence to sustain
the prior serious felony conviction and prior prison term enhancements.

>DISCUSSION

1. Bias
evidence was not improperly excluded.

Cajas
contends the trial court erred when it precluded him from attacking Officer
Piro’s credibility by showing he was biased against Hispanics. This claim is meritless.

a. Background.

Several
months before trial, Cajas filed a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531, requesting
discovery of the personnel files of certain police officers. The motion alleged: “Cajas ran away from the police. He did not have a gun and did not reach into
his waist band. He did not toss a gun or
remove a gun from his person. He did not
throw a gun over a wall. He did not
. . . have a gun at all. The
police used excessive force when they arrested him and planted the gun.”

At
trial, during Cajas’s opening statement, defense counsel told the jury the
evidence would show that when the officers arrived and saw people smoking
marijuana, Cajas took off running: “And
when he took off, that’s a very bad thing because what happens when you take
off, as you see which happened in this case, you get beat
up. . . . [¶] And . . . the defense is this: when you run, you get beat up. And when you get beat up, there has got to be
a charge against you, and that’s exactly what happened. The charge is this gun. He did not have that gun on him. It wasn’t his gun.” “At the beginning when I asked you whether
you thought it was possible that police officers sometimes plant evidence,
you’re going to find out when you hear all of the testimony and the
inconsistencies that that’s exactly the case right here, right now.”

Thereafter,
during a break between witnesses, the prosecutor asked for a hearing with
regard to “the Pitchess
witness.” The prosecutor stated she
expected Malcolm Garland to testify Officer Piro had made racist remarks about
Hispanics during the March 2008 incident.
The prosecutor objected to such testimony on the ground it would be more
prejudicial than probative because there was no evidence Piro had made any
racist remarks in this case.

The
trial court said it had not previously been aware of any racism
allegation: “When we talked about this
Monday or Tuesday, you said misconduct or lying or planting evidence. There’s nothing about calling somebody a
racist. If that is the case, I agree
with [the prosecutor].” Defense counsel
argued Cajas had a right to show an adverse witness was dishonest or motivated
by racial bias, and that Garland would testify Piro was dishonest and had made
derogatory remarks about Hispanics.

The
trial court replied: “Okay. I am going to settle this finally today. This is now the third day that we have been
dealing with this issue, and this is also the first day I have heard anything
about any racist allegation. [¶] You got up in opening statement
. . . and said that you were going to say that the cops were liars,
dishonest, misconduct. You had said that
in your representation. There was
nothing about any racism stuff. I said
credibility is always important on any witness.
Your Pitchess witness can
testify, but it will not be on a racist comment. You said misconduct. You said planting evidence. You said liar.”

When
defense counsel explained he had not mentioned racism in his opening statement
because he was not sure if Officer Piro would be testifying, and he did not
think he would be allowed to call Garland if Piro did not testify, the trial
court replied, “You might have said it to me on the 402, just a thought. We are done.
This issue is over.”

Garland
was later called as a defense witness.
He testified Piro had roughed up a kid and lied about Garland’s actions
during the 2008 incident.

b. Discussion.

Cajas contends the trial court
erred when it ruled he could not question either Garland or Piro about racial
bias in an effort to attack Piro’s credibility.
Cajas argues this amounted to prejudicial constitutional error because
it improperly prevented him from putting on a defense, and that the error
required a reversal of his conviction.
We disagree. Cajas’s claim
is predicated on a misreading of the trial court record, both as to the
procedural background of this issue and as to its merits.

(1) Legal
principles.

The
courts have routinely turned back attempts to convert ordinary evidentiary
rulings into issues of constitutional dimension. “Defendant claims his constitutional rights
to due process, to present a defense, to confront the evidence against him, and
to a reliable and nonarbitrary determination of guilt were violated by the
trial court’s evidentiary rulings.
[Citations.] His attempt to
inflate garden-variety evidentiary questions into constitutional ones is
unpersuasive. ‘As a general matter, the
“[a]pplication of the ordinary rules of evidence . . . does not
impermissibly infringe on a defendant’s right to present a defense.” [Citations.]
Although completely excluding evidence of an accused’s defense
theoretically could rise to this level, excluding defense evidence on a minor
or subsidiary point does not impair an accused’s due process href="http://www.mcmillanlaw.com/">right to present a defense.
. . . Accordingly, the proper
standard of review is that announced in People
v. Watson [(1956) 46 Cal.2d 818, 836 . . . , and not the stricter
beyond-a-reasonable-doubt standard reserved for errors of constitutional
dimension . . . .’
[Citation.]” (>People v. Boyette (2002) 29 Cal.4th 381,
427-428.)

“ ‘While
cross-examination to test the credibility of a prosecution witness is to
be given wide latitude, its control is within the discretion of the trial
court, and the trial court’s exclusion of collateral matter offered for
impeachment purposes has been consistently upheld.’ ” (People
v. Redmond (1981) 29 Cal.3d 904, 913; see People v. Hayes (1999) 21 Cal.4th 1211, 1266 & fn. 15
[precluding impeachment of prosecution witness on collateral matter did not
restrict defendant’s Sixth Amendment right to confrontation]; >People v. Quartermain (1997) 16
Cal.4th 600, 625 [trial court did not abuse discretion by excluding
impeachment on collateral matter].)

(2) Trial
court did not bar Cajas from cross-examining Piro about racial bias.

Cajas asserts the
prosecutor objected to defense counsel cross-examining Piro about racial
bias. This is inaccurate. The record clearly shows the prosecutor only
objected to having Garland testify
about Piro’s anti-Hispanic comments.href="#_ftn4" name="_ftnref4" title="">>[4] Cajas’s trial attorney manifested the same
understanding when he told the trial court the “issue is this witness being
able to testify that this officer is a dishonest officer,” and “it is
reversible error if I get shutdown if I have a witness that says he’s biased
against my client.” Moreover, the trial
court’s ruling on the prosecutor’s objection was clearly limited to Garland’s
testimony: “Your Pitchess witness can testify, but it will not be on a racist
comment. You said href="http://www.fearnotlaw.com/">misconduct. You said planting evidence. You said liar.”

And although the
trial court may have been speaking in shorthand during this hearing on the
prosecutor’s objection, the record demonstrates the court had decided it was not
going to interrupt the trial at that point to hold yet another evidentiary
hearing on this issue. It appears there
had already been several other Pitchess
discussions and now defense counsel was suddenly proposing to have Garland
testify about something other than Piro’s dishonesty and use of excessive
force. Moreover, the trial court had
already admonished the parties it was concerned about holding a jury together
in a case going to trial just ten days before Christmas.href="#_ftn5" name="_ftnref5" title="">>[5]

The
record is clear the trial court did not prohibit Cajas from cross-examining
Piro about his racial bias. Hence,
Cajas’s reliance on In re Anthony P.
(1985) 167 Cal.App.3d 502, is misplaced. In that case, the minor was accused of having
committed a sexual battery on a fellow high school student. The alleged victim, who was white, testified
the minor asked her for a date and, when she refused, he grabbed her bust,
buttocks and crotch. The minor was African-American. While cross-examining the girl, defense
counsel asked if she were prejudiced against black people, which she
denied. Counsel then asked, “Would it
offend you if a black person asked you for a date?” (Id.
at p. 506.) Because the prosecutor’s
objection to this question was sustained, the court of appeal reversed the juvenile
court’s wardship finding: “The case
against appellant hinged entirely on the credibility of one witness
. . . . The trial
judge allowed defense counsel to pose only one question on the issue of this
witness’ possible bias against persons of appellant’s race.
. . . [T]his violated
appellant’s constitutional right to cross-examine the witnesses against him and
[we] therefore reverse.” (>Ibid.)

In this case,
however, Cajas was not precluded from exploring Officer Piro’s racial bias
through cross-examination. Rather, the
trial court merely excluded extrinsic evidence of Piro’s allegedly racist
comments in a two-year-old, unrelated incident because Cajas had waited until
midtrial to announce he wanted to introduce such evidence. This was not an abuse of discretion. The fact defense counsel thereafter failed to
question Piro on this issue, despite the trial court’s permission to do so,
does not entitle Cajas to relief. (See,
e.g., People v. Boyette, supra, 29
Cal.4th at p. 429 [although trial court erred by ruling defendant could
not ask witness Surrell about specific threats from Johnson, this error was
harmless because “[d]efendant was allowed by the trial court to ask Surrell
whether she was afraid of Johnson, but [defendant] did not do so”].)

(3) Exclusion
of racial bias evidence could not possibly have prejudiced Cajas.

But
even assuming, arguendo, that the trial court somehow erred by excluding
evidence of Piro’s racial bias, either through his cross examination or through
Garland’s testimony, we would conclude the error was harmless under any
standard of review. That is because the
only purpose of the evidence would have been to give Piro a motive for planting
evidence against Cajas, and the evidence overwhelmingly showed the police did
not plant evidence in this case.

Cajas’s primary
method of demonstrating prejudice is to artificially inflate the importance of
Piro’s testimony. He calls Piro
variously “perhaps the key prosecution witness,” “the chief prosecution
witness,” and the “key to the prosecution case.” These assertions are not supported by the
record. Cajas claims Piro “was the only
one who testified that he saw appellant throw a gun,” but this is inaccurate
because Officer Moya also testified he saw Cajas throw a gun. Cajas points to Moya’s initial testimony that
he only saw Cajas throw “a black object that appeared to be a gun,” but
this testimony was immediately clarified when Moya testified to his “belief”
that this object “was a gun” which Cajas threw over the wall. Moya also testified he alerted Piro verbally
to what he had seen by calling out “Gun.”
Hence, the evidence showed both Moya and Piro saw the gun.

In
addition to these two eyewitnesses who saw Cajas throw a gun over the wall, and
Officer Thomas’s testimony about watching Officer Pungchar recover the
discarded weapon, there was evidence showing Cajas had been unnecessarily
wearing a leather belt which had been altered to accommodate the discarded gun.href="#_ftn6" name="_ftnref6" title="">[6] Cajas’s credibility was impeached by his
prior convictions and, although there had been two other eyewitnesses to the
incident, one of whom was a friend of five or six years whom Cajas had gone to
visit that night, neither potential witness was called by the defense to
corroborate Cajas’s testimony.

But
there was even more inculpatory evidence.
Although Cajas began the trial by telling the jury the gun had been
planted by police officers in order to cover up their use of excessive force
during his apprehension and arrest, the prosecution evidence was fatally inconsistent
with this theory. A.S.’s testimony
demonstrated that, regardless of who threw the gun over the wall, >it had happened at the very outset of the
incident, not at the end of the incident after Cajas had been apprehended
and allegedly beaten by the officers.href="#_ftn7" name="_ftnref7" title="">>[7] Hence, the evidence showed the putative >motive for planting the gun, i.e., to
cover up the officers’ assault on Cajas, could not have arisen until >after the gun had already been thrown
over the wall.

In apparent
response to this hole in the defense case, Cajas got up and testified about a
mysterious fourth man who supposedly fled the moment the officers first
arrived, jumped over the wall, and tossed the gun into A.S.’s yard. Even on appeal, Cajas asserts: “Appellant’s
version of events was that the gun belonged to another man who threw the gun
over the wall before escaping from the police.” (Italics added.) But again, although this revised defense
theory accounts for A.S.’s testimony as to when
the gun was tossed over the wall, it is entirely inconsistent with the “planted
evidence” theory because it removes any motive
the police would have had for planting the gun.

Hence,
evidence that, in addition to covering up the use of excessive force, Piro had
been motivated by racial bias could not have possibly done Cajas any good in
defending against the charge of felon in possession of a gun, and therefore
even the erroneous exclusion of such evidence would have been completely
harmless.

2. The
scope of Pitchess discovery was not improperly restricted.

Cajas
contends we must remand this case for further proceedings because the trial
court erred improperly restricted his discovery of police personnel files. However, no remand is required because any
error was necessarily harmless.

a. Legal
principles.

“Evidence Code sections 1043 and 1045, which
codified our decision in Pitchess v.
Superior Court (1974) 11 Cal.3d 531 . . . , allow discovery
of certain relevant information in peace officer personnel records on a showing
of good cause. Discovery is a two-step
process. First, defendant must file a
motion supported by declarations showing good cause for discovery and
materiality to the pending case. [Citation.]
This court has held that the good cause requirement embodies a
‘relatively low threshold’ for discovery and the supporting declaration may
include allegations based on ‘information and belief.’ [Citation.]
Once the defense has established good cause, the court is required to
conduct an in camera review of the records to determine what, if any,
information should be disclosed to the defense.
(Evid. Code, § 1045, subd. (b).) The statutory scheme balances two
directly conflicting interests: the
peace officer’s claim to confidentiality and the defendant’s compelling
interest in all information pertinent to the defense. [Citation.]”
(People v. Samuels (2005)
36 Cal.4th 96, 109.)

“What the defendant must present is
a specific factual scenario of officer misconduct that is plausible when read
in light of the pertinent documents.” (>Warrick v. Superior Court (2005) 35
Cal.4th 1011, 1025.) “[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.” (Id. at p. 1026.) The
trial court’s ruling on a Pitchess
motion is reviewed for abuse of discretion. (People
v. Lewis (2006) 39 Cal.4th 970, 992.)


Even if the trial court erroneously denies a Pitchess motion, reversal is not required unless the defendant can
demonstrate prejudice. (See >People v. Samuels, supra, 36 Cal.4th at
p. 110 [“even if the trial court erred because defendant made a showing of
good cause in support of his [Pitchess]
request . . . , such error was harmless [under >Watsonhref="#_ftn8" name="_ftnref8" title="">>[8]]”];
People v. Memro (1985)> 38 Cal.3d 658, 684, disapproved on
another ground in People v. Gaines (2009)
46 Cal.4th 172, 181, fn. 2 [“an accused must demonstrate that prejudice
resulted from a trial court’s error in denying [Pitchess] discovery”].)

b. Discussion.

Cajas
filed a pretrial motion requesting Pitchess
discovery as to Officers Moya, Piro and Puettmann, and he now contends the
trial court erred by permitting discovery only as to allegations of excessive
force, and only as to Officers Moya and Piro.

As
to the restriction of discovery to Officers Moya and Piro, Cajas contends the
trial court erred by not also granting discovery as to Officer Pungchar. But as Cajas acknowledges, his >Pitchess motion “showed some confusion
regarding Officer Pungrchar [sic] and
Officer Puettman.” At the >Pitchess hearing, the deputy city
attorney argued the motion should be denied as to Puettmann because his
involvement had been limited to interviewing A.S., and that Officer Pungchar,
who recovered the gun, was not named as a subject of the Pitchess motion. The trial
court agreed: “Well, he’s not even named
so that’s not at issue.” Even in light
of these comments, Cajas made no attempt to modify his Pitchess motion to seek discovery as to the officer who recovered
the gun. Hence, the trial court did not
err by failing to grant discovery as to Pungchar.

As
to Officers Piro and Moya, the city attorney argued any Pitchess discovery was irrelevant because of what A.S. had
witnessed: “The hearing of [A.S.], an
independent witness, the discovery of the gun, his credibility is not an issue
in the Pitchess motion. There is no counter, plausible scenario
proposed by the defense for how [A.S.] could have made those statements.href="#_ftn9" name="_ftnref9" title="">[9] So we think this is one of those relatively
rare Pitchess motion[s] that does not
rise to the level and should be completely denied.” It appears the trial court reasonably
accepted this argument insofar as it related to the dishonesty issue.

In
any event, as to all three officers, any error in denying discovery could not
have prejudiced Cajas because, as explained ante,
the evidence at trial was overwhelmingly at odds with a scenario in which the
officers planted the gun in order to cover up their use of excessive
force. Hence, we conclude the trial
court did not err by restricting the scope of Pitchess discovery and, even assuming it did, there could not have
been any prejudice.href="#_ftn10"
name="_ftnref10" title="">[10]

3. Strike
and prior prison term enhancements must be reversed.

Cajas
contends his sentence must be reversed because the prosecution failed to prove
the “second strike” and prior prison term enhancement components of his
sentence. The Attorney General properly
concedes this claim has merit. We will
vacate Cajas’s sentence and remand to the trial court for further proceedings.

As
the Attorney General acknowledges, the record shows Cajas admitted having been
convicted of the felony that subjected him to the charged offense of felon in
possession of a gun (former § 12021, subd. (a)(1), now § 29800, subd.
(a)(1)), but he admitted neither that this prior qualified as a “strike,” nor
that he had suffered two qualifying prior prison terms under
section 667.5. The trial court and
the parties discussed hearing the evidence necessary to prove up these
allegations following the jury verdict, but that never happened. Instead, the trial court went ahead and
pronounced sentence, and then concluded it lacked jurisdiction to reopen the
case in order to allow the missing evidence.


Cajas
argues that, due to this evidentiary deficiency, his sentence should not have
been doubled under the Three Strikes law, and two years for prior prison term
enhancements should not have been included, resulting in a proper sentence of
only two years. However, as the Attorney
General points out, the prosecution is not barred from proving these sentencing
allegations at this time.

It is
well-established that neither state nor federal double jeopardy guarantees
apply to the trial of enhancement allegations in non-capital cases. (People
v. Monge (1997) 16
Cal.4th 826, 843-845.) As >Monge explained: “[I]n a trial of a prior conviction
allegation, the factual determinations are generally divorced from the facts of
the present offense, and the evidence does not overlap at all. Like a trial in which the defendant’s age or
gender is at issue, the prior conviction trial merely determines a question of
the defendant’s continuing status, irrespective of the present offense, and the
prosecution may reallege and retry that status in as many successive cases as
it is relevant [citations], even if a prior jury has rejected the allegation
[citation]. If a jury rejects the
allegation, it has not acquitted the defendant of his prior conviction
status. [Citation.] ‘A defendant cannot be “acquitted” of that
status any more than he can be “acquitted” of being a certain age or sex or any
other inherent fact.’ [Citation.]” (Id. at
p. 839.)

As
a result, we conclude this case must be remanded to allow the People an
opportunity to prove up the second strike and prior prison term allegations.

>DISPOSITION

The conviction is affirmed. The sentence is reversed and the matter is
remanded to the trial court for further proceedings consistent with this
decision.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We concur:









CROSKEY,
J.









KITCHING,
J.