People v. Conners CA4/2

Filed 5/4/21 P. v. Conners CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



 THE PEOPLE,

          Plaintiff and Respondent,                                      E073794

 v.                                                                      (Super.Ct.No. RIF1600859)

 ANTHONY CONNERS,                                                        OPINION

          Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. David A. Gunn and

Jeffrey Prevost, Judges. Affirmed as modified and remanded with directions.

         Siri Shetty, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stephanie

H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant Anthony Conners appeals the judgment entered following a jury trial in

which he was convicted of one count of assault with a deadly weapon, with a finding that

he personally inflicted great bodily injury. (Pen. Code,1 §§ 245, subd. (a)(1), 12022.7,

subd. (a), 1192.7, subd. (c)(8).) He admitted three prior felony convictions,2 and the trial

court found he had served two prior prison terms (former § 667.5, subd. (b)), had one

serious prior felony conviction (§ 667, subd. (a)), and had one prior strike conviction

(§§ 667, subd. (c), (e)(1), 1170.12, subd. (c)(1)). On August 9, 2019, the court sentenced

defendant to prison for a total term of 16 years, including two one-year prior prison term

enhancements. (Former § 667.5, subd. (b); Stats. 2018, ch. 423, § 65, eff. Jan. 1, 2019.)

       Defendant contends and respondent agrees that the two one-year prior prison term

enhancements must be stricken pursuant to the amendments made to section 667.5,

subdivision (b) (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020) by Senate Bill No. 136 (2019-

2020 Reg. Sess.). We also agree and remand the matter for the trial court to resentence

him accordance with Senate Bill No. 136. Defendant further seeks, and respondent does

not oppose, appellate review of the sealed record of the hearing pursuant to Pitchess v.

Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether police personnel

records were improperly withheld from discovery. Having conducted our review of the

in camera proceedings, we find no abuse of discretion.



       1   Undesignated statutory references are to the Penal Code.

       2  Felony spousal abuse (Aug. 23, 2002, § 273.5, subd. (a)); making terrorist
threats (Aug. 23, 2002, §§ 422, 667, subd. (a)); and felon in possession of a firearm
(May 8, 2007, § 12021, subd. (a)).

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                   I. PROCEDURAL BACKGROUND AND FACTS

       On the night of February 20, 2016, the victim observed an argument between

defendant and a woman outside a liquor store. Defendant yelled at the woman, grabbed

her around the collarbone with both of his hands, pushed her toward the ground, and hit

her three or four times. Fearing for the woman’s life, the victim tackled defendant to the

ground. As the victim and defendant both stood up, defendant said, “‘Fuck you,’” and

stabbed the victim in the lower abdomen.3 The victim then punched defendant in the face

and walked to the liquor store for help; tissue was protruding out of his open wound.

       When the police arrived, the victim provided a description of defendant, who was

arrested as he was walking away from the liquor store. The victim was taken to the

hospital.

       Defendant asserted self-defense. He testified that, as he was sitting outside near

the liquor store, he got into an argument with his female companion. He placed his head

over his hands, and the victim came up and started punching him on his head, face, and

eye. Defendant was unable to retreat, so he stabbed the victim one time in the stomach

with a knife. Defendant said he dropped the knife into some bushes and fled because he

was afraid of being shot by police. He acknowledged that he had previously been




       3 The parties stipulated that defendant admitted in court to stabbing the victim
with a knife.

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convicted of making criminal threats and felony domestic violence. Pictures taken of his

face “on or about” February 27, 2016, appeared to show bruising above and below his

left eye; however, the arresting officers could not recall if they had observed such injuries

at the scene.

       The woman testified defendant did nothing to provoke the victim’s attack;

however, at the scene of the crime, she told officers the victim came to her assistance

after she was attacked by another man. She claimed defendant was not involved.

According to the officers, she appeared intoxicated and was difficult to understand.

                                      II. DISCUSSION

       A.       Senate Bill No. 136

       The parties agree defendant’s two one-year prior prison term enhancements must

be stricken in light of Senate Bill No. 136.

       The amended information alleged defendant had served two prior prison terms for

felony spousal abuse and for being a felon in the possession of a firearm. (Former

§ 667.5, subd. (b).) On June 26, 2019, defendant admitted each of these alleged priors,

and the trial court found them to be true. The court pronounced judgment as follows: “It

is the judgment of the Court in this matter that probation is denied under Penal Code

Sections 667(c)(2) and 1170.12, subdivision (a)(12). Grant of probation is denied. . . . In

any event, the Court would not grant probation in the event that I did have discretion to do

so. [¶] With respect to the consideration of the circumstances in aggravation,




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circumstances of mitigation, I agree with the probation department’s findings set forth on

page 10 of 16 in the probation report and that there are no circumstances in mitigation in

this matter. [¶] With respect to the particular term to be imposed under the triad for 245,

there’s good reason to consider imposing the upper term in this matter, given

[defendant’s] previous criminal history and, as pointed out by the People, his escalating

level of violence in this matter. But I think that there’s—there’s a mental health

component that’s operating here that should not necessarily result in a greater penalty to

[defendant]. And I think that . . . he actually did relate that he was being assaulted. [¶]

So I’m going to impose the mid term of the three years in this matter. Pursuant to the

strike prior, Count 1 is the only . . . term in this matter. So the mid term of three years will

be imposed, doubled, pursuant to the strike prior to a period of six years, pursuant to

12022.7, subdivision (a), the penalty of three years served fully consecutively will be

imposed as to Count 1. [¶] I will impose, and the Court is very well aware, that it now

has discretion to strike the so-called nickel prior. However, I think that there’s good

reason to impose in this particular case in order to protect society, that the alleged—that

the found-to-be-true prior under 667, subdivision (a), be imposed. And that the two prison

priors under 667.5, subdivision (b) be imposed. So an additional term of five years will be

imposed under the nickel prior. And one year each to be served fully consecutively to

those terms will be added, for a total of—I think I’m coming up with 16 years.”




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       “Senate Bill No. 136 amended section 667.5, subdivision (b) regarding prior

prison term enhancements. Former section 667.5, subdivision (b) imposed an additional

one-year term for each prior separate prison term or county jail felony term, except under

specified circumstances. However, amended Penal Code section 667.5, subdivision (b)

imposes that additional one-year term only for each prior separate prison term served for

a conviction of a sexually violent offense as defined in Welfare and Institutions Code

section 6600, subdivision (b). [Citation.] ‘By eliminating section 667.5, subdivision (b)

enhancements for all prior prison terms except those for sexually violent offenses, the

Legislature clearly expressed its intent in Senate Bill No. 136 . . . to reduce or mitigate

the punishment for prior prison terms for offenses other than sexually violent offenses.’”

(People v. Smith (2020) 46 Cal.App.5th 375, 396.) Accordingly, we shall strike the now-

inapplicable two one-year prior prison term enhancements under former section 667.5,

subdivision (b), currently attached to defendant’s sentence, and remand for the trial court

to resentence him. (See People v. Jennings (2019) 42 Ca1.App.5th 664, 682 [court

remanded for resentencing in part because defendant was entitled to have enhancements

stricken under Senate Bill No. 136].) On remand, the trial court may not exceed the

aggregate prison term originally imposed. (See People v. Castaneda (1999)

75 Ca1.App.4th 611, 614.)

       B.     Pitchess Motion

       On July 20, 2018, the trial court heard defendant’s Pitchess motion for disclosure

of the personnel records of two sheriff’s deputies. Defendant sought any personnel

records that might tend to show the deputies had credibility issues, including prior acts of


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moral turpitude, disciplinary actions resulting from the investigation of any citizen

complaints, any Brady4 material in general, and any records resulting from civil service

commission investigations. The court conducted the in camera hearing and ordered the

transcript of the in camera hearing sealed. After the in camera hearing, the trial court

stated in court that no discoverable information had been produced during the in camera

hearing. Defendant has requested that this court independently review the sealed records

of the Pitchess hearing to assess whether the trial court improperly withheld any

discoverable material from the defense. (People v. Landry (2016) 2 Cal.5th 52, 73;

People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc (2001) 26 Cal.4th 1216,

1228.)

         “A trial court’s ruling on a motion for access to law enforcement personnel

records is subject to review for abuse of discretion.” (People v. Hughes, supra,

27 Cal.4th at p. 330; see Pitchess, supra, 11 Cal.3d at p. 535.) We have reviewed the

sealed transcript of the proceedings and conclude that the trial court did not abuse its

discretion in refusing discovery on the basis of its conclusion that no materials were

relevant to defendant’s claims of moral turpitude and dishonesty against the two sheriff’s

deputies. (People v. Landry, supra, 2 Cal.5th at pp. 73-74; Hughes, at p. 330.)




         4   Brady v. Maryland (1963) 373 U.S. 83.

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                                   III. DISPOSITION

      The matter is remanded to the trial court with directions to strike the two one-year

prior prison term enhancements imposed under former section 667.5, subdivision (b),

pursuant to Senate Bill No. 136 and resentence defendant. After resentencing defendant,

the clerk of the superior court is directed to prepare an amended sentencing minute order

and an amended abstract of judgment reflecting defendant’s new sentence, and to forward

certified copies of the amended minute order and amended abstract of judgment to the

Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                              McKINSTER
                                                                                      P. J.
We concur:



RAMIREZ
                       P. J.



FIELDS
                          J.




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