P. v. Clay
Appellants Marvin Clay and Deandre Hemphill appeal their convictions by jury. Clay was convicted one count of robbery (Pen. Code 211), and the jury found true an allegation that he personally used a firearm. ( 12022.53, subd. (b).) Hemphill was convicted by the same jury of two counts of robbery. On the first count, the jury found true an allegation against Hemphill that his co-defendant was armed with a firearm. ( 12022, subd. (a)(1).) The trial court found true allegations that Hemphill had served two prior prison terms for felony convictions. ( 667.5, subd. (b).) The trial court sentenced Clay to a total of 13 years in state prison consisting of a 3-year middle term for the robbery count plus 10 years for use of the firearm. ( 211 & 12022.53, subd. (b).) The trial court sentenced Hemphill to a total prison term of 9 years consisting of a 5-year upper term for the first robbery count, an additional one year based on his co defendant's use of a firearm, a consecutive one year term for the second robbery count (one third the middle term), and two one year terms for the two prior prison terms. ( 667.5, subd. (b).) Clay contends 1) that the trial court erred when it summarily denied his motion for in camera review of peace officer personnel records (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and 2) that his counsel rendered ineffective assistance because she did not request a modified jury instruction regarding eyewitness identification. Court agree with Clay's first contention, and conditionally reverse and remand for further proceedings as to Clay only.
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