California Cases February 25, 2020: People v. Tate

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BF165281A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Eric Bradshaw, and Thomas S. Clark, Judges.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Terry W. Tate was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378 [count 1]), possession of methamphetamine ( id ., § 11377, subd. (a) [count 2]), possession of heroin ( id ., § 11350, subd. (a) [count 3]), possession of cocaine ( ibid . [count 4]), and possession of drug paraphernalia ( id ., § 11364 [count 5]). With respect to count 1, the information alleged he was previously convicted of four drug-related offenses ( id ., § 11370.2, former subd. (c)) and served eight prior separate prison terms (Pen. Code, § 667.5, former subd. (b)). , Following trial, the jury found defendant guilty as charged as to counts 1, 3, 4, and 5. Count 2 was dismissed pursuant to section 1385. In a bifurcated proceeding, the trial court found true three of the four drug-related prior conviction allegations and six of the eight prior prison term allegations.

Defendant was sentenced to an aggregate jail term of 18 years: an upper term of three years on count 1 plus nine years for the three drug-related prior convictions and six years for the six prior prison terms. He also received concurrent 90-day terms on counts 3, 4, and 5. Defendant was ordered to serve the first eight years in custody and the remaining years under mandatory supervision.

In his opening brief, defendant makes several contentions. First, the trial court erroneously denied his motion to suppress evidence obtained from an illegal search and seizure. Second, the evidence did not support the possession-for-sale conviction on count 1. Third, in view of an amendment to Health and Safety Code section 11370.2, subdivision (c), enacted by Senate Bill No. 180 (2017-2018 Reg. Sess.) (Senate Bill No. 180) (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018), the case should be remanded to have the court strike the drug-related prior conviction enhancements. Finally, defendant

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asks us to review the sealed transcript of the court's in-camera hearing and determine whether it properly ruled on his Pitchess motion.

We conclude the trial court's denial of defendant's suppression motion was not improper and the evidence supported the possession-for-sale conviction. We accept the Attorney General's concession that a remand for the purpose of striking the drug-related prior conviction enhancements is appropriate. We further find the court did not abuse its discretion when it determined a certain peace officer's personnel records contained no discoverable material.

In a supplemental brief, defendant highlights an amendment to section 667.5, subdivision (b), enacted by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136) (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020). He argues the case should be remanded to have the trial court strike the prior prison term enhancements. We accept the Attorney General's concession that a remand for this purpose is appropriate.

On August 18, 2016, Officers Flores and Poteete of the Bakersfield Police Department were dispatched to a residence with a warrant for the arrest of Joe Jordan, who was depicted as "a [B]lack male in his 50s." The officers entered the backyard and spotted defendant next to a trailer and "either a washing machine or dryer." A black backpack sat on top of the appliance. Defendant's appearance matched Jordan's description. Flores called out, "Joe." Defendant "made eye contact with" Flores, "put his hand into his pocket," "t[ook] it back out," and then "t[ook] cover behind the . . . trailer." The officers approached the trailer and instructed defendant to reveal himself. He complied.

In response to Flores's questions, defendant disclosed he had a knife and "crystal" on his person. Flores conducted a patdown search. He retrieved the knife and two bags

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containing 3.4 and 3.5 grams of methamphetamine, respectively. Defendant said, "Those are my eight-balls." Based on his training and experience, Flores knew "eight-ball" meant "an eighth of an ounce of crystal methamphetamine."

In response to Flores's questions, defendant confirmed the backpack belonged to him and consented to its inspection. Inside, Flores found four bags containing 0.3, 0.3, 0.4, and 0.5 grams of methamphetamine, respectively; three bags containing 0.1, 0.2, and 0.1 grams of crack cocaine, respectively; a bag containing 0.5 grams of heroin; a digital scale with "white powdery residue on it"; three cell phones; and pipes used to smoke methamphetamine and crack cocaine. Defendant was arrested.

Flores advised defendant of his Miranda rights. Thereafter, defendant admitted the drugs "were his" and he "used that same day" but insisted the scale "wasn't his." When he was asked about the pipes, he said "not to ask him stupid questions." Regarding the cell phones, defendant described them as "Obama phones." Based on his training and experience, Flores was familiar with the symptoms of someone under the influence of methamphetamine. These included "red, watery eyes," dilated pupils, nystagmus, lack of balance, and paranoia. He did not believe defendant was then under the influence of the methamphetamine because the latter did not exhibit any of these telltale signs. When Flores voiced his belief that defendant was selling the drugs, defendant "changed his mind" and "said the drugs were not his."

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Detective Paiz of the Bakersfield Police Department was the prosecution's narcotics expert at trial. He testified he completed several courses on the identification and investigation of various controlled substances. In the field, Paiz "worked in an undercover capacity" and "purchased different types of narcotics to include cocaine base, heroin, powder cocaine, crystal methamphetamine, and . . . ecstasy." He executed more than 50 search warrants and arrested hundreds of suspects in connection with drug sales. Paiz also spoke with informants "who used to be involved in narcotics sales" about their former activity.

According to Paiz, a majority of methamphetamine users "carry maybe at the most a gram," which could be smoked across "four to five days." Those selling methamphetamine, however, may possess a greater amount. Other "indicia of drug sales" include scales, cell phones, "pay and owe" sheets, packaging, and weapons. A scale "is used to weigh out the product . . . ." A cell phone "take[s] calls from clients," "order[s] . . . from [one's] dealer," and may electronically record "what someone paid out" and "what someone owed coming in." Sellers often have multiple cell phones: one for "clean" personal use and others for communicating with buyers and suppliers. Plastic bags are utilized to package drugs for sale. Weapons intimidate buyers who refuse to pay and ward off would-be robbers. Although one would expect to find currency in a seller's possession, its absence is not uncommon. The seller could have "just purchased [his or her] amounts for the day," hid the money nearby, or "work[ed] with" a partner who "holds the money" "at different locations so in case they are robbed, they don't [lose] their narcotics and their proceeds" simultaneously.

Paiz opined defendant possessed methamphetamine for sale. The total quantity of the drug in defendant's possession—8.4 grams—was an "amount [that] would not be . . . just for personal use." The market value of the two eight-balls alone was "a little over $200" and would have been too expensive for someone to purchase all at once solely for

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personal use. That defendant possessed drugs other than methamphetamine, a knife, a scale, and three cell phones also indicated he was a seller.

I. The trial court's denial of defendant's suppression motion was not improper

a. Background

In a motion filed pursuant to section 1538.5, defendant alleged his Fourth Amendment rights "were violated by police acting without a warrant" and sought to suppress "[a]ny observations by . . . Flores . . . or any other law enforcement personnel leading up to and after [defendant] was detained and arrested," "[a]ny and all statements made by . . . [d]efendant," and "[a]ny alleged evidence subsequently located in this case; including a knife, suspected methamphetamine, suspected heroin, cell phones, and narcotics paraphernalia." In its opposition to the suppression motion, the prosecution stipulated there was neither a search warrant nor an arrest warrant for defendant.

At the January 6, 2017 motion hearing, Flores testified he and his partner were dispatched to a residence on August 18, 2016, with a warrant for the arrest of Jordan, a "Black male" "approximately 50 years old." Flores "circulated the area" "around the house just in case . . . Jordan was located outside of the house instead of inside" and eventually made his way to the rear of the residence. In the backyard, Flores saw two individuals: (1) defendant, who "appeared to be a [B]lack male and approximately 50 years old"; and (2) a second Black male, who "was not Mr. Jordan." Defendant was standing next to a washing machine. On top of the machine was a backpack. Flores called out to defendant, "Mr. Jordan." Defendant "looked at" Flores, "place[d] his left hand in his left pocket," "pulled it out," and "hid[] behind a trailer." Flores ordered defendant to come out and defendant obeyed.

Flores determined defendant was not Jordan and asked him "if he had any weapons or anything illegal." Defendant "said he had a knife and . . . crystal."

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Thereafter, Flores conducted the patdown search. He then asked defendant if "it was his backpack." Defendant "said yes." Flores searched the backpack after he asked for and received defendant's permission to do so. At some point, the officers recovered defendant's wallet "behind the trailer where [defendant] initially took cover."

Defense counsel argued Flores and his partner "did not lawfully enter the property in the first place" because they "had no search warrant" and did not "ask for permission to be on the property." The prosecutor countered defendant could not challenge the officers' entry into the backyard because he was not a resident, a guest, or someone with a reasonable expectation of privacy in the premises. The prosecutor clarified "the People's rationale or argument isn't that . . . defendant doesn't have . . . a reasonable expectation of privacy in the search of his person or the search of the backpack . . . ."

After a brief recess, the following colloquy transpired:

"THE COURT: . . . . [¶] . . . [W]hose burden in this case is it to determine or to justify the warrantless search?

"[PROSECUTOR]: Your Honor, it's my burden to justify the warrantless search.

"THE COURT: Okay. And . . . in your opinion, does that include whether or not there was a reasonable expectation of privacy in the location where the officer was when he first observed . . . defendant? . . . [¶] Here's my concern: . . . . In my view, this evidence is you have officers on a side yard, which I would say falls within the curtilage of the house. . . . [¶] By the officer's testimony, he enters this side yard area, sees an individual who may be the person that they're after, but it's not. It turns out that's not the case. When . . . he does encounter this individual, there's what I'll call furtive gestures or physical gestures that . . . maybe lead to some suspicion and cause one to be a little concerned. And, you know, you have this contact. But it all takes place in an area that we'll call the curtilage. . . . [¶] . . . [¶]

"[PROSECUTOR]: . . . In terms of a reasonable expectation of privacy[,] . . . that's the defense's show. [¶] . . . [¶] . . . That would be the defense burden.

"THE COURT: Why is that?

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"[PROSECUTOR]: Because they're attempting to basically exercise Fourth Amendment rights on this property. That's essentially what the argument is over, whether or not officers entered the property lawfully. And even if there was a trespass, whose Fourth Amendment rights would have been violated? . . . [D]efendant doesn't live there. That's the evidence that's before the Court. [¶] . . . [¶]

"[THE COURT:] There's one other aspect of this. Once the officer is in contact with [defendant], the whole conversation about the backpack and everything, the evidence suggests that that was entirely consensual once you get to that point. In other words, he said, that's my backpack and you can search it. That's the evidence that I have. [¶] . . . [¶]

"[PROSECUTOR]: Your Honor, no doubt . . . defendant has standing and order to object to the search of his person and the backpack. . . . [T]he backpack he said was his. He then consented to the search. Before you even get there, though, he has to establish that he has a reasonable expectation of privacy in the place searched. That's the general standard."

The court denied the suppression motion. It reasoned:

"Well, Counsel, although the People's burden to show that a warrantless search is justified is a bedrock princip[le] in what we're doing here, in order to get there, . . . I think that I have to be convinced that . . . defendant has a legitimate reasonable expectation of privacy in the place he was. Based on the evidence presented before me, I cannot say that. I do not have sufficient evidence one way or another to make that determination so I'm going to deny the motion. [¶] . . . [¶]

". . . Counsel, really, I've heard argument all afternoon long on this. I've given this a lot of thought. You know I have. I've allowed counsel to go back and forth on this. I am not convinced that there is evidence in the record . . . that explains to me why . . . defendant in this case had a legitimate expectation of privacy in the area where he was found with the backpack. . . . That's the Court's ruling."

b. Standard of review

" '[I]t is settled that in ruling on a motion [to suppress] under section 1538.5 the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences, and hence that on review of its ruling by appeal or writ all presumptions are drawn in favor of the factual determinations of the superior

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court and the appellate court must uphold the superior court's express or implied findings if they are supported by substantial evidence.' [Citation.]" ( People v . Needham (2000) 79 Cal.App.4th 260, 265.) "Substantial evidence is ' "evidence which is reasonable, credible, and of solid value." ' [Citation.]" ( People v . Bohana (2000) 84 Cal.App.4th 360, 368.) "The reviewing court then independently reviews the superior court's determination that no Fourth Amendment violation occurred in conducting the search." ( People v . Needham , supra , at p. 265.) "If the search or seizure violated the Fourth Amendment, then the evidence seized as a result of that search must be excluded." ( Ibid ., citing Mapp v . Ohio (1961) 367 U.S. 643, 655.) "On appeal we consider the correctness of the trial court's ruling itself, not the correctness of the trial court's reasons for reaching its decision." ( People v . Letner and Tobin (2010) 50 Cal.4th 99, 145, italics omitted.)

c. Analysis

"The Fourth Amendment provides '[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .' [Citation.] This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. [Citation.]" ( People v . Camacho (2000) 23 Cal.4th 824, 829-830.) " 'The touchstone of Fourth Amendment analysis is whether a person has a "constitutionally protected reasonable expectation of privacy." ' [Citation.] The analysis consists of a two-part inquiry: 'first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?' [Citation.]" ( People v . Maury (2003) 30 Cal.4th 342, 384.)

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The Fourth Amendment " 'contains no provision expressly precluding the use of evidence obtained in violation of its commands' " ( Herring v . United States (2009) 555 U.S. 135, 139), but the United States Supreme Court "establish[ed] an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial" ( ibid .). The exclusionary rule prohibits not only "[t]he introduction into evidence of materials seized and observations made during an unlawful search" ( People v . Lamas (1991) 229 Cal.App.3d 560, 568) but also "the introduction into evidence of materials and testimony which are the products or indirect results of the illegal search, the so-called 'fruit of the poisonous tree' doctrine" ( ibid .).

"A defendant may move . . . to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on . . . the . . . grounds . . . [¶] . . . [t]he search or seizure without a warrant was unreasonable." (§ 1538.5, subd. (a)(1)(A); see People v . Rossetti (2014) 230 Cal.App.4th 1070, 1074 ["We review issues relating to the suppression of evidence derived from police searches and seizures under federal constitutional standards."].) "The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." ( Rakas v . Illinois (1978) 439 U.S. 128, 130, fn. 1, italics added; see Minnesota v . Carter (1998) 525 U.S. 83, 88 ["[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable . . . ."]; In re Rudy F . (2004) 117 Cal.App.4th 1124, 1131 ["Federal law provides that Fourth Amendment rights are personal and may not be vicariously asserted."]; People v . Thompson (1990) 221 Cal.App.3d 923, 936 ["Essential to appellant's suppression motion or claim, was not merely proof that someone's Fourth Amendment rights had been violated or that a particular person's rights had been violated, but that appellant's Fourth

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Amendment rights had been violated ."].) In addition, the "three-step allocation of the burden of producing evidence governs, with the ultimate burden of persuasion always remaining on the People." ( People v . Romeo (2015) 240 Cal.App.4th 931, 940.) " '[W]hen defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant.' " ( Ibid .) "[T]he People are obligated to produce proof sufficient to show, by a preponderance of the evidence, that the search fell within one of the recognized exceptions to the warrant requirement." ( Id . at p. 939.) " '[D]efendants can respond by pointing out any inadequacies in that justification.' [Citation.]" ( People v . Romeo , supra , at p. 941.)

i. The backyard

" 'At the very core' of the Fourth Amendment 'stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' [Citation.]" ( Kyllo v . United States (2001) 533 U.S. 27, 31.) "[T]he zone of Fourth Amendment protection afforded to a person's home does not necessarily extend to his or her property line; only the 'curtilage'—i.e., 'the land immediately surrounding and associated with the home'—is shielded from unreasonable searches and seizures. [Citation.]" ( People v . Lieng (2010) 190 Cal.App.4th 1213, 1222.)

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The record shows the officers encountered defendant in the backyard of the residence. "[I]t is clear that the backyard was part of the curtilage of the residence" ( People v . Thompson , supra , 221 Cal.App.3d at p. 941) and the officers did not have a search warrant. Defendant also stresses "[t]here was no evidence that the officers obtained permission from the homeowner, or anyone present, to enter the property." However, while the warrantless entry may have violated the Fourth Amendment rights of the homeowner, "[t]here is nothing in the [record] . . . to even suggest who, if anyone, lived on the premises . . . ." ( People v . Thompson , supra , at p. 933.) Without proof defendant was a resident, guest, or anyone else with a reasonable expectation of privacy in the property, he "wholly failed to establish his own Fourth Amendment rights were violated" with respect to the entry ( ibid .) and therefore cannot challenge the intrusion.

ii. Detention, patdown search, and backpack search

"Time and again, [the United States Supreme] Court has observed that searches and seizures ' "conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions." ' [Citations.]" ( Minnesota v . Dickerson (1993) 508 U.S. 366, 372 ( Dickerson ).)

"One such exception . . . [is] 'where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . ,' the officer may briefly stop the suspicious person and make 'reasonable inquiries' aimed at confirming or dispelling his suspicions." ( Dickerson , supra , 508 U.S. at pp. 372-373, quoting Terry v . Ohio (1968) 392 U.S. 1, 30 ( Terry ).) "[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information." ( Hayes v . Florida (1985) 470 U.S. 811, 816.) Another exception arises " 'when an officer is justified in believing that the individual whose suspicious behavior

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he is investigating at close range is armed and presently dangerous to the officer or to others,' the officer may conduct a patdown search 'to determine whether the person is in fact carrying a weapon.' " ( Dickerson , supra , at p. 373, quoting Terry , supra , at p. 24.) "When the stop is justified by suspicion (reasonably grounded, but short of probable cause) that criminal activity is afoot, . . . the police officer must be positioned to act instantly on reasonable suspicion that the persons temporarily detained are armed and dangerous." ( Arizona v . Johnson (2009) 555 U.S. 323, 330.)

"When discussing how reviewing courts should make reasonable-suspicion determinations, [the United States Supreme Court] ha[s] said repeatedly that they must look at the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing. [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' [Citations.]" ( United States v . Arvizu (2002) 534 U.S. 266, 273-274; see Terry , supra , 392 U.S. at p. 27 ["[I]n determining whether the officer acted reasonably . . . , due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience."].) Reasonable suspicion "is considerably less than proof of wrongdoing by a preponderance of the evidence" and "obviously less demanding than that for probable cause." ( United States v . Sokolow (1989) 490 U.S. 1, 7.)

"[A] search conducted pursuant to a valid consent is constitutionally permissible." ( Schneckloth v . Bustamonte (1973) 412 U.S. 218, 222.) "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the

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consent was, in fact, freely and voluntarily given." ( Bumper v . North Carolina (1968) 391 U.S. 543, 548, fn. omitted.) "The voluntariness of the consent is in every case 'a question of fact to be determined in the light of all the circumstances.' [Citations.]" ( People v . James (1977) 19 Cal.3d 99, 106.)

The record shows the officers had a warrant for Jordan's (not defendant's) arrest. In the backyard, Flores spotted two individuals: (1) defendant, whose appearance matched Jordan's description; and (2) another male, who "was not Mr. Jordan." After Flores identified defendant as Jordan, defendant "looked at" Flores, "place[d] his left hand in his left pocket," "pulled it out," and "hid[] behind a trailer." "[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion." ( Illinois v . Wardlow (2000) 528 U.S. 119, 124.) For instance, "flight from police is a proper consideration—and indeed can be a key factor—in determining whether in a particular case the police have sufficient cause to detain." ( People v . Souza (1994) 9 Cal.4th 224, 235.) Defendant's actions after he made eye contact with Flores could imply a consciousness of guilt. (Cf. People v . Rodriguez (2012) 207 Cal.App.4th 1540, 1542, 1544 [the accused removed an item from his pocket and tossed it while fleeing from police].) " 'The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity . . . .' [Citation.]" ( People v . Souza , supra , at p. 233.)

Flores then ordered defendant to reveal himself and defendant complied. After determining defendant was not Jordan, Flores asked defendant whether "he had any weapons or anything illegal." Defendant admitted he had a knife and methamphetamine, resulting in a patdown search. A search for weapons is permitted "where [the officer] has reason to believe that he is dealing with an armed and dangerous individual . . . ." ( Terry , supra , 392 U.S. at p. 27; see ibid . ["The officer need not be absolutely certain that the individual is armed . . . ."].) Likewise, a search for illegal contraband is permitted where

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the suspect admits his or her possession thereof. ( People v . Chamagua (2019) 33 Cal.App.5th 925, 930.)

Finding the knife and methamphetamine "eight-balls" on defendant's person, Flores asked defendant if the nearby backpack belonged to him and, if so, whether he consented to its inspection. Defendant answered both questions in the affirmative. (See People v . James , supra , 19 Cal.3d at p. 113 ["[T]here is no talismanic phrase which must be uttered by a suspect in order to authorize a search."].) There was no evidence Flores or his partner "displayed their weapons or other signs of force," "made any improper inducements to obtain consent," or invoked " 'the right to search without permission.' " ( People v . Hernandez (1988) 199 Cal.App.3d 1182, 1188.)

In view of the totality of the circumstances, the investigative detention, the patdown search, and the backpack search were justified. The denial of defendant's suppression motion was not improper.

II. Substantial evidence supported defendant's possession-for-sale conviction on count 1

a. Standard of review

"To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt." ( People v . Tripp (2007) 151 Cal.App.4th 951, 955.) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ( People v . Redmond (1969) 71 Cal.2d 745, 755.) "We need not be convinced of the defendant's guilt beyond a reasonable doubt; we merely ask whether ' "any rational trier of fact could have found the essential elements of the crime beyond a

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reasonable doubt." [Citation.]' [Citation.]" ( People v . Tripp , supra , at p. 955, italics omitted.) "This standard of review . . . applies to circumstantial evidence. [Citation.] If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]" ( Ibid .)

"Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it." ( People v . Redmond , supra , 71 Cal.2d at p. 755.) " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' [Citation.]" ( People v . Lee (2011) 51 Cal.4th 620, 632.)

b. Analysis

" 'Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.]' [Citations.]" ( People v . Harris (2000) 83 Cal.App.4th 371, 374.) "Intent to sell may be established by circumstantial evidence." ( Ibid .) On appeal, defendant contends "[t]here was insufficient evidence in this case from which a rational trier of fact could have found beyond a reasonable doubt that [he] had the requisite intent to possess the methamphetamine for sale."

The record—viewed in the light most favorable to the prosecution—demonstrates defendant possessed 8.4 total grams of methamphetamine. He initially told Flores the methamphetamine belonged to him and he "used that same day," though he did not exhibit any symptoms. Paiz, the prosecution's narcotics expert, opined defendant

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possessed the drug for sale based on certain "indicia." The quantity and market value of the methamphetamine recovered was in excess of what a methamphetamine user would purchase for personal consumption. Defendant's backpack contained, inter alia, an assortment of banned substances (methamphetamine, crack cocaine and heroin); a digital scale, which would be "used to weigh out the product" and actually had "white powdery residue on it"; and three cell phones, which would allow defendant to isolate his "clean" calls from his communications with buyers and suppliers. The narcotics were packaged in plastic bags. Finally, defendant carried a knife, which would facilitate payments and deter robberies. (See People v . Harris , supra , 83 Cal.App.4th at pp. 374-375 [" 'In cases involving possession of . . . [methamphetamine], experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld. [Citations.]' Thereafter, it is for the jury to credit such opinion or reject it."].) Substantial evidence supported the possession-for-sale conviction.

III. The drug-related prior conviction enhancements must be stricken on remand

At the time defendant was charged, convicted, and sentenced, Health and Safety Code section 11370.2, subdivision (c), provided:

"Any person convicted of a violation of, or of a conspiracy to violate, [Health and Safety Code] Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of [Health and Safety Code] Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, [Health and Safety Code] Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment."

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After defendant was sentenced, but while his case was still pending on appeal, the Legislature enacted Senate Bill No. 180 (Stats. 2017, ch. 677, § 1). As of January 1, 2018, Health and Safety Code section 11370.2, subdivision (c), provides:

"Any person convicted of a violation of, or of a conspiracy to violate, [Health and Safety Code] Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of [Health and Safety Code] Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, [Health and Safety Code] Section 11380, whether or not the prior conviction resulted in a term of imprisonment."

None of defendant's three drug-related prior convictions were in connection with a violation of Health and Safety Code section 11380. (See ante , fn. 2.)

Defendant asserts Senate Bill No. 180 applies retroactively to the case and a remand for resentencing is proper. The Attorney General agrees. We accept this concession.

IV. The prior prison term enhancements must be stricken on remand

At the time defendant was charged, convicted, and sentenced, section 667.5, subdivision (b), provided, in part:

"[W]here the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of [s]ection 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of [s]ection 1170 or when sentence is not suspended for any felony . . . ."

After defendant was sentenced, but while his case was still pending on appeal, the Legislature enacted Senate Bill No. 136 (Stats. 2019, ch. 590, § 1). As of January 1, 2020, section 667.5, subdivision (b), provides in pertinent part:

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"[W]here the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of [s]ection 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of [s]ection 6600 of the Welfare and Institutions Code . . . ."

None of defendant's six prior prison terms were in connection with a sexually violent offense. (See ante , fn. 2.)

In a supplemental brief, defendant asserts Senate Bill No. 136 applies retroactively to the case and a remand for resentencing is proper. The Attorney General agrees. We accept this concession.

V. The trial court did not abuse its discretion when it concluded Officer Flores's personnel records contained no discoverable material

a. Background

Defense counsel filed a motion for discovery of Flores's personnel records, seeking materials related to dishonest conduct by the officer. On October 20, 2016, the court conducted an in-camera hearing, found no discoverable material, and sealed the reporter's transcript.

On appeal, defendant asks us to "review the sealed record to determine whether the trial court followed proper procedures or abused its discretion in determining what should and should not be disclosed to [his] trial counsel." The Attorney General does not oppose this request.

b. Analysis

" 'A criminal defendant has a limited right to discovery of a peace officer's personnel records. [Citation.] Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045.' [Citation.]" ( People v . Yearwood (2013) 213 Cal.App.4th 161, 180; see People v . Mooc (2001) 26

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Cal.4th 1216, 1220 ( Mooc ) [California Legislature codified Pitchess motions].) "[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant." ( People v . Gaines (2009) 46 Cal.4th 172, 179 ( Gaines ), citing Evid. Code, § 1043, subd. (b).) "Good cause for discovery exists when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.]" ( Gaines , supra , at p. 179.)

"If the trial court concludes the defendant has . . . made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion" ( Mooc , supra , 26 Cal.4th at p. 1226) and "the court must review the requested records in camera to determine what information, if any, should be disclosed" ( Gaines , supra , 46 Cal.4th at p. 179). "Subject to statutory exceptions and limitations . . . the trial court should then disclose to the defendant 'such information [that] is relevant to the subject matter involved in the pending litigation.' " ( Mooc , supra , at p. 1226, quoting Evid. Code, § 1045, subd. (a).) "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 (2002) 27 Cal.4th 287, 330.)

Here, the court followed the proper procedure and created an adequate record of the October 20, 2016 in-camera hearing. (See Mooc, supra , 26 Cal.4th at pp. 1228-1229.) We have examined Flores's confidential personnel files. The court did not fail to disclose materials "so clearly pertinent to the issues raised by the Pitchess discovery motion that failure to disclose them was an abuse of Pitchess discretion." ( People v . Samayoa (1997) 15 Cal.4th 795, 827.) Thus, we uphold the ruling.

The matter is remanded to the trial court with directions to strike the drug-related prior conviction enhancements (Health & Saf. Code, § 11370.2, subd. (c)) and the prior

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prison term enhancements (§ 667.5, subd. (b)); prepare an amended minute order; and forward a certified copy thereof to the appropriate authorities. In all other respects, the judgment is affirmed.

/s/ _________
DETJEN, J.

WE CONCUR:

/s/ _________
POOCHIGIAN, Acting P.J.

/s/ _________
MEEHAN, J.