Filed 10/15/13 P. v. Arterberry CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
RASHEEN GERMAIN ARTERBERRY,
Defendant and Appellant. B242468
(Los Angeles County Super. Ct. No.VA116917)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Robert A. Higa, Judge. Remanded with directions. Meredith J. Watts, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Mary Sanc hez and David Zarmi, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 Defendant Rasheen Germain Arterberry appeals from the judgment entered following his conviction by jury of second degree robbery a nd being a felon in possession of a firearm. (Pen. Code, §§ 211, 12021, subd. (a)(1).) 1 The jury also found that during the commission of the robbery, defendant pe rsonally used a firearm and a principal was armed with a firearm. (§§ 12022.53, subd . (b), 12022, subd. (a)(1).) He alleges sentencing error and asks this court to con duct an independent review of the in camera hearing conducted pursuant to his Pitchess motion. 2

STATEMENT OF FACTS 3

On September 19, 2010, Fe rnando Tamaura was working at a Mobil gas station in the City of Whittier. At approximately 8:30 that evening, two males grabbed Tamaura and pulled him away from the counter where the cash register was located. One of the
males was armed with a firearm. They asked him for money. One of the assailants went through Tamaura’s pocket and to ok $700 in cash. Tamaura wa s forced to op en the cash register and the men took approximately $1,300. They also grabbed a cigar box that was nearby.
When the robbers left th e location, Tamaura saw them get into a gold Pontiac, which was being driven by a third individual . Tamaura got into his truck and followed the Pontiac as it left the station. Eventually , Tamaura saw the Pontiac park in a driveway. He lost sight of the three suspects wh en they went toward a back house. In court, Tamaura identified a picture of the Pontiac he followed and defendant as
the armed robber. The robbery was captured on videotape and the recording was play ed for the jury.

1 All further statutory references are to the Penal Code.

2 Pitchess v. Superior Court (1974) 11 Cal.3d 531.

3 As defendant does not att ack the sufficiency of the evidence, we present an abbreviated version of the facts.3 Los Angeles County Sheriff’s Deputy Edua rdo Ayala was on duty that evening. He received a radio call informing him that a robbery victim was following the suspects into the area where Ayala was patrolling. Th e deputy met Tamaura at the intersection of
Strozier and Lerma. Tamaura told Deputy Ayala that he la st saw the suspects running westbound. Ayala utilized the radio to set up a containment of the area. Whittier Police Department Officer Angela Calzada responded to the containment
area to search for the suspects. She looked inside the Pontiac that had been pointed out by the victim and observed a black hat, a cigar box, and a black handgun. Deputy Kurt Messerschmidt and his canine arrived at the containment area. They began searching for the suspects in backyards in the area with no success. The deputy and the canine were dispatched to a constr uction site. Deputy Messerschmidt observed a small building with a door. Th e dog began barking, indicating it detected the presence of a human being. After the deputy announced he was going to release the dog, one of the suspects emerged from the building. Subsequen tly, all three were taken into custody.
An officer checked th e interior of the building. On the floor, he located jeans, shoes, a bandana, and a wallet containing de fendant’s identification. When defendant was taken into custody, he was wearing no outer clothing.
Defendant’s mother said she and defend ant’s grandmother purchased the Pontiac used in the robbery for defendant.

DISCUSSION

I. The Trial Court Properly Determin ed That No Personnel Records Were
Discoverable
Defendant filed a Pitchess motion seeking the disclosure of complaints in the personnel records of Officer Michael Balzano. 4 The trial court ruled that it would

4 Defense counsel erroneously states in th e opening brief that defendant requested discovery of materials in the personnel file of Lieutenant Davis. Lieutenant Davis was the officer who provided Officer Balzano’s pe rsonnel file during the in camera hearing.4 conduct an in camera hearing to determine whether complaints claiming the officer had engaged in writing false reports or fabricating probable cause should be disclosed to the defense. (Defendant does not challenge the sc ope of the court’s ruling with regard to the subject matter of the complaints it was to examine.) After conducting the hearing, the
court concluded that no materials were discoverable. Defendant asked this court to independentl y review the transcript of the in camera hearing. We have done so. The trial cour t had Officer Balzano’s personnel file. It properly set forth with particularity the subj ect matter of each co mplaint it reviewed. (See People v. Mooc (2001) 26 Cal.4th 1216, 1229-1230.) We conclude it did not abuse its discretion in determining that nothing in the officer’s pers onnel file was discoverable. ( Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039 [“ A motion for discovery of peace officer personnel records is addressed to the sound discretion of the trial court, reviewable for abuse.”].)

II. Sentencing Error Must Be Corrected and the Matter Must Be Remanded for
a Trial on the Prison Prior Allegations The amended information alleged that defendant had suffered two prior serious felony convictions within the meaning of sections 1170.12, subdivisions (a)-(d) and 667, subdivisions (b)-(i), one prior serious felony conviction within the meaning of section 667, subdivision (a) and two convictions within the meaning of section 1203, subdivision (e)(4). In addition, defendant was alleged to have served two prio r prison terms within the meaning of section 667.5, subdivision (b).
Defendant admitted he ha d two prior serious felony convictions within the meaning of sections 1170.12, subdivisions (a)-(d) and 66 7, subdivisions (b)-(i) and, notwithstanding the fact that the amende d information alleged only one, two prior convictions within the meaning of 667, subdivision (a). Defe ndant did not admit suffering the two nonserious convictions or se rving two prior prison terms. Nor was a trial conducted to dispose of the allegations . Those allegations simply fell through the cracks. The court imposed a 25-year-to-life se ntence for the robber y conviction, 10 years5 for the gun enhancement, and 10 years pursuant to section 667, subdivision (a) (five years for each prior) for a total term of 45 years to life. The sentence for the principal armed allegation was stricken. A co ncurrent 25-year-to-life sentence was imposed for the felon in possession of a firearm conviction. The parties agree that the court erred in imposing a second five-year term pursuant to section 667, subdivision (a) and stri king the sentence for the principal armed allegation. Ignoring the fact that the co urt could not impose 2 five-year sentences because defendant was charged with only one qualifying prior under section 667, subdivision (a), the parties co rrectly point out that the tw o robbery priors defendant suffered were brought in the sa me proceeding. Section 667, subdivision (a) provides that a five-year enhancement for a prior serious felony conviction shall be imposed for “each such prior conviction on charge s brought and tried separately.” For that reason as well, the trial court could properly impose only 1 five-year sentence. ( In re Harris (1989) 49 Cal.3d 131, 136-137.) The par ties also correctly conclude that the court should have imposed and stayed the principal armed allegation instead of striking it. ( People v. Gonzalez (2008) 43 Cal.4th 1118, 1130.) With respect to the two section 667.5, subdivision (b) priors, the parties take opposing positions. Defendant asserts the tr ial court was aware of the two prison priors and impliedly exercised its disc retion to not impose an additio nal sentence. The Attorney General argues that because the prior allega tions were neither tried nor admitted, the
matter must be remanded for the court to con duct a trial. The Atto rney General has the better argument. Defendant waived his right to a jury tr ial on the prior allegations. There is no question that the section 667.5, subdivision (b) allegations we re never resolved by way of trial or admission. (Neither were the sec tion 1203, subdivision (e)(4) allegations, but they have no effect on defe ndant’s sentence.) We confronted a similar situation in People v. Miller (2008) 164 Cal.App.4th 653. The info rmation alleged that the defendant had suffered a prior conviction. However, afte r she waived jury tria l on the alleged prior,
the trial court failed to conduct a trial or make any findings. We concluded: “As double6 jeopardy protections do not apply to the trial of prior conviction allegations ( People v. Monge (1997) 16 Cal.4th 826, 845), we remand for a court trial on the prior conviction allegation and resentencing [citation].” ( People v. Miller
, supra , at p. 668.) The same
result is called for here.

DISPOSITION

The matter is remanded to the trial court fo r further proceedings. If the People so desire, a court trial on the section 667.5, subdivision (b) and 1203 , subdivision (e)(4) allegations is to be conducted. 5 The court is directed to strike one of the five-year sentences imposed pursuant to section 667 , subdivision (a) and impose and stay the sentence pursuant to section 12022, subdivision (a). The clerk is directed to forward an amended abstract of judgment to the Depa rtment of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

WILLHITE, Acting P. J.

MANELLA, J.

5 Given the sentence that defendant receive d, the prosecution may well conclude that further proceedings would constitute a waste of court resources; however, that decision must be a product of the exercise of prosecutorial discretion, not judicial fiat.