Filed 7/29/14 P. v. Soberanis CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
FRANK SOBERANIS,
Defendant and Appellant. B243922
(Los Angeles County Super. Ct. No. LA059723)

APPEAL from a judgment of the Superior Court of Los Angeles County. Barry A. Taylor, Judge. A ffirmed as modified.

Benjamin Owens, under appointment by th e Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Idan Ivri, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 Defendant and appellant Fr ank Soberanis (defendant) appeals from his conviction
of assault with a firearm and other felonies. He contends that his jury trial waiver was
invalid and that he is entitle d to additional presentence cu stody credit. In addition,
defendant seeks review of the seal ed transcript of the in camera Pitchess review, 1 as well
as the in camera review of th e complaining witness’s criminal record. Respondent agrees that additional custody credit is due; and c iting the erroneous orde r staying the four prison prior enhancements, respondent seeks a remand to allow the trial court to impose or strike the enhancements. We agree that additional custody credit is due and modify the judgment accordingly. As the trial court found the prison priors were time-barred, we strike them without remand. Finding no erro r in the in camera re views and no merit to defendant’s remaining contentions, we affirm the judgment as modified.
BACKGROUND Procedural history Defendant was charged with three felony count s, as follows: count 2, assault with
a firearm in violation of Penal C ode section 245, subdivision (a)(2); 2 count 3, possession of a firearm by a felon, in violation of former section 12021, subdivision (a)(1); 3 and count 4, carrying a loaded, unr egistered firearm in violati on of former section 12031, subdivision (a)(1). The inform ation also alleged four pr ior convictions pursuant to section 667.5, subdivision (b), which were al so alleged as qualifying felony convictions under the “Three Strikes” law (§§ 667, subd. (b)-(i), 1170.12, subd. (a )-(d)). As to count 2, the information alleged pursuant to sec tion 12022.5, subdivisi on (a), that defendant personally used a firearm in the commission of the crime; and pursuant to 667, subdivision (a)(1), that defendant had suffe red two prior serious felony convictions.

1 See Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ); Penal Code sections 832.7 and 832.8; Evidence Code sections 1043 through 1045.

2 All further statutory references are to the Penal Code, unless otherwise indicated.

3 Section 12021 was recodified at secti on 29800 effective January 1, 2012. (See § 16000.)3 Defendant waived his right to be represented by counse l and to a jury trial. Following a court trial defenda nt was found guilty as charge d and all the prior conviction allegations were found to be true. On Au gust 2, 2012, after denying defendant’s motion for new trial, the trial court sentenced defendant to 35 years to life in prison, comprised of 25 years to life in prison as to count 2, plus five years for each of two prior convictions pursuant to section 667, subdivision (a)(1). As to each of counts 3 and 4, the trial court imposed a concurrent term of 25 years to life, each term st ayed pursuant to section 654. The trial court awarded presentence custod y credit calculated as 1091 actual days in custody, with no conduct credit. Defendant filed a timely notice of appeal from the judgment.
Prosecution evidence Louis Ortiz (Ortiz), his friends Matthew Lorenceau (Lorenceau) and Lourdes Ravega (Ravega) testified re garding the events that occu rred the evening of August 8, 2008, when they were drinking together at a bar. Defendan t was also in the bar at the time but he and Ortiz were not acquainted. After defendant made a comment to Ortiz and was told to “Mind your own fucking busine ss,” defendant drew a loaded gun from his waistband and attempted to point it at Ortiz and pull the trigger. Ortiz struggled to prevent defendant from using the gun. Defe ndant was ultimately su bdued with the help of another bar patron after Ortiz yelled, “This guy has a gu n.” Ortiz took the revolver from defendant, unlo aded it, and placed it on the bar. Police arrived shortly after the struggle and detained both Ortiz and defendant while they determined what had happened. They then let Ortiz go and arrested defendant. Investigators later learned that Ortiz owned a registered firearm which was not the same weapon as the unregistered firearm recovered from the bar. The only fingerprints recovered from the gun seized at the bar did not belong to defendant or Ortiz, and no prints were f ound on the cartridges.
Defense evidence
Several defense witnesses testified that th ey did not see defendant with a gun.
Three bartenders each testified th at they were working that ni ght but did not see a fight or4 defendant with a gun, and did not see the gun at all until afte r the fight was over. Parking attendant Mansoor Daud (Daud) testified that when he entered the bar, he saw four people fighting, including de fendant and Ortiz. When the other two men left, Daud pulled defendant and Ortiz apar t and took them outside where they were detained. He never saw the gun. The valet manager saw a security guard wrestli ng with defendant and another person. He never saw defendant w ith a gun but when it was over, he saw the other person with a gun. Jonathan Flores testified that he saw defendant and Ortiz wrestling and afterward he saw Ortiz with the gun and heard him say, “I have your gun. What are you going to do now ?” Flores later saw Ortiz unl oad the weapon at the bar and
never saw defendant with th e gun. The manager, Marti Rivas called the police upon hearing that there was a gun, but did not see a gun. Defendant’s parole agent testified that th ree days after the incident, he took a photograph of cuts on the inside of defenda nt’s left hand which he lost when his cell phone was damaged. The parties stipulated that tests were performed on the gun and bullets, and
defendant’s DNA was not found.
Waivers Defendant waived his right to counsel a nd represented himself at the preliminary hearing. On February 5, 2009, the day defe ndant was arraigned on the information, he
filed a written “ Faretta waiver” 4 on a Los Angeles Superior Court form informing defendant of his constitutional rights to an attorney, a speedy trial, a jury trial, to subpoena witnesses and records, to confro nt and cross-examine witnesses, not to incriminate himself, to be released on bail, and to represent himself. In addition, defendant orally represented to the trial cour t that he had read and understood the form. After explaining the charges and possible consequences, the trial court found that

4 See Faretta v. California (1975) 422 U.S. 806, 807, 835, in which the Supreme Court held that a criminal defendant may waiv e the right to counsel, if the court first makes him “aware of the dangers and disadvan tages of self-representation, so that the record will establish that ‘he knows what he is doing and hi s choice is made with eyes open.’ [Citation.]”5 defendant understood them and his rights, and that his waiver was express, knowing, and intelligent. Defendant reported on the form that he was a high sch ool graduate, had completed two years of college, and had worked for se veral attorneys doing legal research and assisting in the preparation of criminal writs and appeals. De fendant also reported that he had been granted the right to proceed in pro. per. in three prior criminal matters: a 2005 theft charge that was dismissed; another 20 05 theft charge that resulted in a 16-month term of custody; and an alleged violation of section 242 in 2006 that resulted in a
conviction under section 4 17, exhibiting a firearm.
The waiver form also warned defendant of the dangers of self-representation, the court’s recommendation against self-representa tion, and the nature of the charges. Defendant’s initials appear in boxes next to each advisement on the form, and his signature appears at the end, certifying his understanding of all wa rnings, his continued wish to represent himself, and the free a nd voluntary relinquishment of his right to
counsel.
Thereafter the matter was transferred to the department of the Honorable Barry Taylor, where it remained through trial. Defendant represented himself throughout the proceedings, including the filing of motions for the appointment of investigators and experts, including DNA and finge rprint experts, as well as motions to dismiss, for continuances, discovery, discovery sanctions, a new trial, and to strike prior convictions. On November 23, 2009 , the trial court noted that during his previous appearance in court, defendant had made mention of waiving jury. 5 Defendant rep lied, “I’m still on the same page, what I discusse d with them. Because what’s going to be involved in the trial, if it is a trial, I beli eve that it would be better understo od by a judge . . . because the toxicology involved and also it’s possible that the defendant might not testify. So that is making a role in me deciding that.” Defendant told the court that he would be prepared to make that decision in two weeks, after his investigator submitted his final report.

5 Defendant’s previous court appearance was on October 29, 2009. The reporter’s transcripts do not include an oral record of that date.6 Defendant informed the court of his d ecision on February 1, 2010, after the prosecutor raised the issue and noted that defendant intended to waive jury and have the matter tried specifically before Judge Taylor. After discussion about scheduling, the court stated: “And I fully understand, if we ta ke a jury waiver today, the jury waiver is specifically to me, and, if I’m no longer here , then the defendant wo uld have a right to go forward with a jury, if that’s what he wants to do.” Defendant replied, “Okay,” and made additional scheduling suggestions. After a schedule was agreed upon, the following colloquy took place: “The court: Mr. Soberanis, you have a ri ght to have a trial by jury. That is where 12 people from the co mmunity are sworn, they listen to all of the evidence, and they make any factual de terminations, and they are the ones who decide whether you ar e guilty or not guilty. If you waive your right to a jury trial, that means the court, myself, would be the one to listen to the evidence and make all of those factual determinations that a jury normally makes. In any event, any legal decisions or any legal issues that come up, I would make those decisions whether it’s a court or jury trial. You have the right to have 12 people from the comm unity hear the case, assuming it’s a jury, or, if you wish to give up that right, you can -- and it has to be a personal waiver of a jury trial . . . .”

“The defendant: Yes. “The court: Is that what you wish to do?
“The defendant: That is what I wish to do. “The court: Do you now give up y our right to a jury, assuming I’m the judge who’s going to hear the case? “The defendant: Assuming you are the judge, because you know the case, I would be willing to waive my right to a jury. . . . “The court: -- As a court trial? All right. . . . The court will note it as a court trial, 0 of 15 on the 19th of February. “Mr. Marcus: And, your Honor, the pe ople join in th e jury waiver.”7 DISCUSSION I. Jury trial waiver
Defendant contends that th e judgment must be reversed because the record does not affirmatively demonstrate that the waiver of his right to a jury trial was knowing, intelligent, and voluntary. 6 Although the right to a trial by jury is fundamental under both the federal and state constitutions, the right may be and is commonly wa ived, so long as the waiver is express, knowing, intelligent, and voluntary. ( People v. Collins (2001) 26 Cal.4th 297, 304-305 ( Collins ); Duncan v. Louisiana (1968) 391 U.S. 145, 148-150, 157-158 ( Duncan ); see U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) An express waiver is knowing, intelligent and voluntary wh en the defendant is fully aware of the nature of the right he is giving up and the consequences of doing so, and it is the “‘“‘product of a free and deliberate choice rather than intimidation, coercion, or deception.’”’ [Citation.]” ( Collins, supra , at p. 305.) A waiver taken after th e trial court has offered a benefit, or even just the possibility of an unnamed future benef it, is not voluntary. ( Id . at pp. 309- 312.)
Defendant contends that his waiver was rendered involuntary by the trial court’s failure to inquire whether it was induced by threats or promises. We glean from various parts of defendant’s argument that his c ontention is premised upon the following:
defendant conditioned his waiver on a trial befo re Judge Taylor; he apparently had an agreement with the prosecutor that Judge Ta ylor would try the cas e; and he was not represented by counsel. None of the thre e premises establish improper inducement.

6 Defendant’s introduction to the issue men tions his motion for new trial, brought in part on his assertion that he would not have waived a jury trial had he known that a deputy district attorney in the prosecuting attorney’s office was married to a superior court judge. However, as defendant does not assign error to the denial of his motion or develop this assertion in his argument, we do not discuss the issue. (See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2.)8 The first premise is faulty, as a crim inal defendant may waive a jury trial conditioned upon trial before a particular judge. ( People v. Langdon (1959) 52 Cal.2d 425, 430-431 ( Langdon ).) Defendant suggests that this holding is no longer valid, as Langdon was decided in 1959, before the Unite d States Supreme Court held that the fundamental right to a jury trial (and its concom itant right to waiver) applied to the states through the Fourteenth Amendment. (See Duncan, supra , 391 U.S at pp. 157-158.) California’s own jury trial right has been in our Constitution since the 19th century and a provision for waiver was added in 1928. (See People v. Pianezzi (1941) 45 Cal.App.2d 576, 577-578; former Cal. Cons t., art. I, § 7.) As defendan t has pointed to no authority suggesting that such a co nditional waiver would be valid under the California Constitution, but invalid under the federal c onstitution, we consider ourselves bound by Langdon . (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455.) We also reject defendant’s suggestion th at accepting such a waiver “inherently suggests that the defendant has some inform ation leading him to believe the judge is more favorably disposed to him than other ju dges” and thus implied a benefit. Perhaps defendant thought he did have such informati on. If so, he did not reveal it on the record, and there is nothing in the ex change with the court or the prosecutor’s remarks that could be interpreted as an implied promise. We reject defendant’s sec ond premise, as there is no evidence of a bargain between defendant and the prosecutor. Defenda nt infers a bargain from the asserted fact that “it was the prosecutor, not appellant, who explained the terms of the waiver in court.” However, the prosecut or did not state terms or take the waiver, but simply
informed the court that there would be a waiver conditioned upon trial before Judge Taylor, and that he consented to the waiver. A prosecutor’s consent to the waiver does not suggest a threat or promise, as it is a requirement under the California Constitution, article I, section 16. Finally, there is no merit to defendant’s th ird premise, as a defendant may validly waive a jury trial while acting as his own counsel. ( People v. Kranhouse (1968) 265 Cal.App.2d 440, 448-449.) De fendant relies on language in Langdon to suggest that a9 defendant may not condition his waiver on ha ving his trial before a particular judge unless he was represented by counsel. In that case, the California Supreme Court rejected the argument that where a defendant is repres ented by counsel, the trial court should nevertheless explain the nature and possibl e consequence of waiving a jury trial, particularly where the record did not indicate that defendant or his counsel was misled and the defendant had experienced three prior criminal trials. ( Langdon, supra , 52 Cal.2d at pp. 432-433.) On the other hand, the tria l court is required to inform a defendant, whether represented or unrepresented, of his right to a jury trial and the rights that accompany a trial. (See Collins, supra , 26 Cal.4th at p. 308.) In fact, the court did so
inform defendant in this case. Moreover, as established by defendant’ s waiver of counsel, he had a basic understanding of criminal law and procedure and had acted as his own counsel in three prior criminal matters. A jury waiver was defendant’s own idea, based upon his assessment that the judge would better understand scientific evidence, and given defendant’s experience, it is extremely unlikely that he was confused, misled, coerced, or intimidated. As nothing in the record suggests that defendant ’s self-representation or any other factor resulted in confusion, deception, coercion, or intimidati on, we conclude that the waiver was knowing, intelligent, and voluntary. II. Additional presentence credit Defendant contends that he spent 1456 act ual days in custody prior to sentencing,
and that the trial court miscalculated th e credit when it awarde d only 1091 days. Defendant is entitled to credit against his prison term for all days spen t in custody on this case prior to sentencing. (§ 2900.5.) “Calcu lation of custody credit begins on the day of arrest and continues through the day of sentencing. [Citation.]” ( People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.)
Defendant claims that the record shows that he was in custody from August 8, 2008 to August 2, 2012, and he refers to several pages of th e clerk’s transcript, including the information, the probation report, and th e abstract of judgment, but he does not explain how these docum ents demonstrate his entitlement to an additional 365 days. The10 probation report shows that defendant’s arrest and booking date was August 8, 2008. The information was filed February 5, 2009, and our review of th e minutes entered after that date show that defendant was consistently remanded after each court appearance until his sentencing on August 12, 2012. Respondent agrees that the trial court’s calculation was incorrect and that defendant “appears to have been in presentence custody for the entire time” between August 8, 2008 and August 12, 2012. Althou gh support for the parties’ assertions do not appear in the appellate record , we have examined the superior court file, which shows that bail was set on February 12, 2008, at over one million dollars. As defendant was in custody at th e time of the preliminary hearing, the bail amount suggests that he was in custody prior to that time as well. For that reason and as respondent agrees that the additional credit is due, we modi fy the judgment with the claimed amount.
Defendant also contends that he was en titled to presentence conduct credit of 218 days. A defendant sentenced unde r the Three Strikes law to an indeterminate life term is entitled to conduct credit, although those convic ted of violent felonies are limited to 15 percent of actual presentence time in custody. ( People v. Philpot (2004) 122 Cal.App.4th 893, 908; §§ 2933.1, 4019.) The trial cour t did not award any conduct credit. As
defendant is entitled to credit for 1456 actual da ys of presentence custody, we modify the judgment to add 15 percent of that, or 218 days, for a total presen tence custody award of 1674 days.
III. Pitchess and “rap sheet” review Prior to trial, defendant filed a Pitchess discovery motion reque sting all material relating to dishonesty that might be found in the personnel f iles of several Los Angeles police officers, including Officers Michael Lamb arth and G. Espinosa. The trial court granted the motion as to Officers Lambarth and Espinosa, conducted an in camera review, and found no discoverable items. Defe ndant requests that we review the sealed transcript of the Pitchess hearing for possible error and to verify that the custodian of the
records was sworn.
We review the trial court’s determina tion for an abuse of discretion. ( People v.
Jackson (1996) 13 Cal.4th 1164, 1220-1221.) We have reviewed the se aled record of the11 in camera proceedings and have determined that the custodi an of the records was duly sworn. We find the transcript sufficiently de tailed to review the trial court’s discretion, as the court orally described for the record each document produced. (See People v.
Mooc (2001) 26 Cal.4th 1216, 1228-1229.) Upon review of the sealed transcript, we conclude that the trial court properly exer cised its discretion in determining that no
documents existed with in the scope of the Pitchess motion, and that no documents or
information should be di sclosed to the defense as a result of the review.
Defendant also seeks review of the trial court’s in camera review of Ortiz’s rap sheet. Defendant argues that appellate re view is required because he was entitled to discover all felony and misdemeanor convictions for crimes of moral turpitude. Prior to
the Pitchess hearing, the trial court announced th at it had examined a printout from the district attorney’s office rega rding the complaining witness. The court stated that it had found nothing discoverable on th e rap sheet, as there was nothi ng that related to “moral turpitude or violence or anything.” We have reviewed the sealed rap sheet and conclude that the trial court properly exercised its di scretion in determining that it contained no
discoverable information. IV. Prison priors Respondent contends that the trial court erred in staying the four enhancements alleged pursuant to section 667 .5, subdivision (b), and asks that we remand to allow the trial court to make the necessary findings and then exercise its discretion to either impose
or strike the enhancements. Section 667.5, subdivision (b), mandates a one-year enhancem ent for each prior separate prison term served for any felony, so long as defendant has failed to remain free of both prison custody and anot her felony conviction for a peri od of five years. “Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]” ( People v. Langston (2004) 33 Cal.4th 1237, 12 41.) The impose-or-strike requirement does not apply after the five -year “washout” period has passed. ( Ibid .)12 In this case, the trial court stayed the enhancemen ts at the request of the prosecutor even though the court had not found all the a llegations of the enhancements to be true.
The trial court found that defendant had su ffered the prior convictions, but expressly
found the enhancements “time barred” because at least fi ve years had passed between terms. The prosecutor disagreed with the court as to “the last one” and asked that the enhancements be stayed “in an abundance of caution”; and the court obliged by staying
the enhancements. We conclude from our reading of the record that the trial court expressly rejected the allegation that defendant had not remained free of custody for a period of five years after each of the four felony convictions. As section 667.5, subdiv ision (b) prohibits the imposition of an enhancement when more th an five years have passed between prison terms, and the trial court has expressly made that finding, imposition of the enhancements would have been equally unau thorized as staying them. In support of the request for remand, respondent relies on People v. Bradley (1998) 64 Cal.App.4th 386, 390-391 ( Bradley ). There, however, a remand was made necessary in part due to the absence of written or oral findings. ( Id . at p. 392.) Here, as the court’s express finding did not permit imposition of the enhancements, Bradley does not support a remand. To remand simply so the trial court can stri ke the prior conviction enhancement based on its finding that the wash out period had passed, would be to engage in a useless act. Accordingly, we exercise our power to modify the judgment by striking the four enhancements. (See § 1260; People v. Barnwell (2007) 41 Cal.4th 1038, 1048 & fn. 7.)
DISPOSITION The judgment is modified to substitute the award of presentence custody credit with the total sum of 1,674 days, comprised of 1,456 actual days in custody, plus conduct credit of 218 days. The four section 667.5 prison enhancem ents are stricken. As so modified and in all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modified presentence custody13 credit, and to forward a copy of the amended abstract to the Department of Corrections
and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______ _______________ ______, J. CHAVEZ We concur:

________________ __________, Acting P. J. ASHMANN-GERST

___________________ _______, J.* FERNS

___________________ __________________ __________________ _________________ * Judge of the Los Angeles Superior Court, assigned by the Chie f Justice pursuant to article VI, section 6 of the California Constitution.