People v. Conners CA4/2 ( 2021 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
1
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)).
2
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.
3
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,
4
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.”
5
“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
6
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.
7
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.
8