P. v. Gillo










Filed 11/15/10 P. v. Gillo CA1/4





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. BYRON GILLO, Defendant and Appellant.

A125218 (San Francisco County Super. Ct. No. 203078)

A jury convicted defendant of possessing methamphetamine for sale (Health & Saf. Code, § 11378); possessing cocaine for sale (Health & Saf. Code, § 11351) while armed with a firearm (Pen. Code, § 12022, subd. (c)); and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). The court sentenced defendant to an aggregate six-year prison sentence.
Defendant argues on appeal that (1) CALCRIM No. 3131, the standard jury instruction on being armed with a firearm in the commission of a crime, is inadequate; (2) trial counsel was ineffective in failing to request modification of CALCRIM No. 3131 (3) the trial court failed to adequately respond to the jury's request for clarification of the difference between the arming enhancement and the charge for being a felon in possession of a firearm; (4) there was insufficient evidence that defendant was armed with a firearm; and (5) defendant is entitled to additional conduct credit. We find no error concerning the matters asserted by defendant and affirm the judgment, with modification only to award additional conduct credit under a recent statutory amendment that changed the formula for awarding credit during the time relevant here. (Pen. Code, § 4019.)
However, defendant also asked this court to review the sealed record on his pretrial motion for access to police personnel files to be sure defendant was not denied relevant discovery relating to any police misconduct. (Evid. Code, §§ 1043-1047; Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) The trial court failed to provide an adequate record of the documents produced in connection with the Pitchess motion, thus necessitating conditional reversal of the judgment with directions to hold a new in camera review and to prepare a record sufficient for appellate review. (People v. Mooc (2001) 26 Cal.4th 1216, 1229; People v. Guevara (2007) 148 Cal.App.4th 62, 69.) If the trial court's inspection on remand reveals that no relevant information was improperly withheld, the trial court shall reinstate the judgment. Defendant will then be entitled to appeal from the judgment for the limited purpose of challenging the Pitchess findings (People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 3), and we will have an adequate record to permit effective review of those findings.
I. facts
The police obtained a search warrant for defendant's person, vehicle, and residence. Seven narcotics officers in several vehicles arrived at the residence on San Francisco's Lilly Street at 3:45 p.m. on October 20, 2005 to execute the warrant. The officers did not see defendant's vehicle at the residence, so they parked their vehicles nearby and waited. Less than an hour later, defendant arrived at the residence in his car and parked in front of the building. Police officers approached defendant in his car and detained him. Other officers went to the residence to search it. The officers knocked and announced their presence and, receiving no response, walked inside. They found a man sitting in the living room and detained him. The apartment had a living room and kitchen near the entrance and, at the back, a bedroom and another room cluttered with miscellaneous things, including a locked metal cabinet, a drum set, male clothing, cups, and â€