P. v. Frausto

Filed 1/7/05 P. v. Frausto CA2/4
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ELIZABETH MORENO FRAUSTO,
Defendant and Appellant.
B171848
(Los Angeles County
Super. Ct. No. VA075613)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Dewey L. Falcone, Judge. Affirmed in part, reversed in part, and remanded.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,
Marc J. Nolan and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff
and Respondent.

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Appellant Elizabeth Moreno Frausto appealed from a conviction for sale of a
controlled substance, contending that the trial court erred in rejecting her request
for an in camera review of the confidential personnel files of the four deputies
involved in her arrest. We issued an opinion affirming the judgment, but then
granted a petition for rehearing to consider whether the court committed error
under Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531] and Apprendi
v. New Jersey (2000) 530 U.S. 466 when it imposed the upper prison term after
making factual findings at the sentencing hearing. We conclude that the court may
have erroneously considered sentencing factors already used for purposes of
sentence enhancement or which do not fall within the recidivism exception of
Blakely. Consequently, remand is required for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by information with one count of possession for sale
of a controlled substance in violation of Health & Safety Code section 11351. In
connection with that charge, it was further alleged that appellant possessed for sale
14.25 grams or more of a substance containing heroin within the meaning of Penal
Code section 1203.07 and Health and Safety Code section 11352.5, subdivision
(1); that in 1975, 1981, and 1993, she had suffered three prior convictions within
the meaning of Health and Safety Code section 11370.2, subdivision (a); and that
she had suffered one prior conviction in 1993 within the meaning of Penal Code
section 667.5, subdivision (b), that a term was served as described in Penal Code
section 667.5, and that she did not remain free of prison custody or offense during
a period of five years subsequent to the conclusion of the term.

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Pitchess Motion
Appellant was arrested on March 5, 2003, by Los Angeles County Deputy
Sheriff Brian Bishop and his partner Deputy Poff. Deputy Mia Doeve and her
partner Deputy Herrera were called to the scene to perform a search incident to
arrest. The search led to appellant’s arrest for possession of heroin.
Appellant’s counsel filed a motion for pretrial discovery pursuant to Pitchess
v. Superior Court (1974) 11 Cal.3d 531,1 seeking materials “which relate, directly
or indirectly, to accusations and/or evidence that [the four deputies who
participated in her arrest] have engaged in acts of misconduct.” Specifically, the
motion sought materials that indicated the deputies engaged in dishonesty or illegal
acts, such as “false arrest, fabrication of evidence or probable cause, filing or
writing false police reports, perjury, planting evidence or using false police reports
to cover up the use of excessive force, improper police tactics, or making false or
misleading internal reports such as false overtime or false medical reports.” The
motion also sought “[a]ny other material which is exculpatory [of appellant] or
which impeaches the credibility of any above named deputy.”
In support of the application, appellant attached copies of the two reports of
her arrest. Deputy Bishop’s report stated that appellant was arrested in front of her
home, “a known drug house where heroin is being sold” and that “has ties to the
Southside Whittier gang”; that appellant consented to the search by saying “go
ahead and strip search me if you want”; and that appellant’s daughter had been
arrested for possession of heroin found hidden in her groin area. Deputy Doeve
1 Defendant in Pitchess was charged with committing battery on four deputy
sheriffs. Defendant asserted that he acted in self-defense in response to the use of
excessive force by the deputies. He sought records of internal investigations of citizen
complaints alleging that the deputies had used excessive force on previous occasions.
The Supreme Court concluded that he was entitled to such records.

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stated in her report that prior to the search which she and her partner Deputy
Herrera conducted, Deputy Bishop informed her that appellant and other of
appellant’s family members were known to use heroin and that they commonly hid
narcotics in the groin area.
Appellant’s counsel stated in her declaration: “[The four deputies] claim in
their report, and in the probable cause declaration attached to their report, that
while on routine patrol, they observed a vehicle in front of a home that is alleged to
be known as a drug house where heroin is being sold from and which has ties to
the Southside Whittier Gang. Deputies immediately recognized [appellant] who
resides at the location with her family. [¶] Deputies contacted and arrested
[appellant] for two outstanding warrants. Deputies Bishop and Poff were
suspicious of a bulge in [appellant’s] groin area and asked if she was carrying any
drugs. [Appellant] denied the possession of any drugs and told the deputies to ‘go
ahead and strip search me if you want.’ Deputy Doeve was called to the scene to
conduct a field search of [appellant] and found in her underwear two baggies
containing a total of 62 balloons of heroin. This is all false. The deputies are
lying. [Appellant] did not have any drugs on her person and she has been the
subject of continued harassment by these deputies.”
After reviewing the moving papers, the court denied the motion, citing
insufficient showing of good cause to warrant an in camera review. In so doing,
the court stated that its first inclination was to grant, but that it was convinced
otherwise by Warrick v. Superior Court (2003) 107 Cal.App.4th 1271, review
granted June 25, 2003, S115738, in which the court held that although the
defendant provided a specific factual scenario to support his Pitchess motion, it

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was not reasonably plausible, and therefore the trial court did not err in denying the
motion.2
Evidence at Trial
Deputy Bishop testified that on March 5, 2003, at approximately midnight,
he noticed appellant inside a vehicle in front of a house with which he was familiar
from previous contacts. He knew she had two outstanding warrants for traffic
violations, and placed her under arrest. He visually inspected appellant for
weapons, and called for a female deputy to conduct a more thorough search.
Deputy Doeve and Deputy Herrera arrived, took appellant to their vehicle, and
searched her, finding two plastic baggies. One contained 8 multicolored balloons
and the other contained 54 multicolored balloons.
Deputy Bishop opined that appellant possessed the heroin in order to sell it.
He based his opinion on several factors. First, appellant was unemployed, and
“[s]he needs money to buy this heroin and to use heroin, and she doesn’t have a job
to pay for it.” Second, appellant possessed a large number of heroin balloons.
Deputy Bishop testified that average heroin users utilize about two to three
balloons of heroin per day. He further explained that average heroin users would
not keep more than two to three balloons in their possession at one time because
(1) “they don’t have the money to buy more than that a day at a time”;3 (2) “if they
have too much in their possession at one time they’ll use it all at once,
overdosing”; and (3) “they don’t keep a lot on them because friends will come over
2 Since Warrick is now under review by the Supreme Court, we do not rely on it.
Review was granted after the trial court’s ruling.
3 Deputy Bishop testified that the approximate street value of the heroin found on
appellant was between $300 to $600, with each balloon costing somewhere between $5 to
$10.

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and steal it from them or rob them for it.” Third, appellant had a cellular phone on
her person, which Deputy Bishop argued could be used “to facilitate illegal drug
sales.” Finally, at the time of her arrest, appellant did not have in her possession
any device to ingest heroin.
Appellant testified that she did not have any balloons of heroin in her
possession and was not wearing any type of underwear conducive to hiding such a
quantity of drugs. Appellant complained of injuries and was checked out by a
doctor after the arrest and search. She did not remember who conducted the
search, but remembered that it occurred after the female officers arrived and took
her to their car.
The jury found appellant guilty.
Sentencing
At the sentencing hearing, appellant admitted three Health and Safety Code
section 11352, subdivision (a) priors. However, there was a dispute over the dates.
The court made findings “[w]ithout [appellant’s] stipulation” based on certified
copies of records. Specifically, the court found that appellant had been convicted
under section 11352, subdivision (a) in April 1975, March 1981, and August 1993.
During the sentencing hearing, the court made reference to other priors--
“[c]arrying a loaded firearm, receiving stolen property, battery, petty theft”--but
made no specific findings concerning these priors.4 In addition, the prosecution
contended that “[t]here is some indication on one of the parole discharges on her
4 The information concerning these priors came solely from the probation officer’s
report, which listed a number of misdemeanor convictions of appellant in the 1970’s and
1980’s for petty theft, battery, drunk driving, and carrying a firearm. There were also a
number of later convictions for possession of a controlled substance or being under the
influence of a controlled substance.

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last conviction that she did go back to prison in 2000 on a parole revocation.”
Again, the court made no specific finding concerning this allegation.5
Health and Safety Code section 11351 specifies that a violation “shall be
punished by imprisonment in the state prison for two, three, or four years.” The
court imposed the upper term of four years. In discussing its decision, the court
noted that the evidence indicated possession of 62 balloons of heroin, and that “the
jury . . . found . . . true the enhancement under 1203.07(a)(1)[6] and 11352.5, sub
(1),[7] which requires the mandatory state prison sentence.” The court further
stated: “If any case required a maximum sentence, this case would be it. It’s not
just the possession of the drugs. It’s the transportation, the selling, and the intent
to sell in this case.” Later, the court gave three specific reasons for imposing the
high term: “As far as the finding of guilt as to 11351, the court does select the
high-term of 4 years in the state prison. The high-term because the aggravating
circumstances outweigh the mitigating circumstances[:] The aggravating
circumstances including [appellant’s] prior convictions, number 1; number 2, a
5 The probation officer’s report referred to four parole violations, but did not specify
when they occurred. There is no indication of anything happening after 1998.
6 Penal Code section 1203.07, subdivision (a)(1) states that “probation shall not be
granted to, nor shall the execution or imposition of sentence be suspended for, any of the
following persons: [¶] (1) Any person who is convicted of violating Section 11351 of
the Health and Safety Code by possession for sale 14.25 grams or more of a substance
containing heroin.”
7 Health and Safety Code section 11352.5, subdivision (1) provides for a fine for
“[a]ny person who is convicted of violating Section 11351 of the Health and Safety Code
by possessing for sale 14.25 grams or more of a substance containing heroin.”

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prior prison term; and number 3, that her performance on probation or parole has
been unsatisfactory.”8 The court found “no circumstances in mitigation.”9
The court also imposed nine additional years to run consecutively, three
years for each of the “three state prison priors” by which we presume was meant
the section 11352 priors. As a result, appellant was sentenced to a total of 13
years. A timely appeal was noticed.
DISCUSSION
I
A
The primary issue raised in the original appeal was whether the trial court
erred in denying appellant’s Pitchess motion. The standard of review for a trial
court’s ruling on a motion of this kind is the abuse of discretion standard. (Alford
v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
The process by which a criminal defendant may discover confidential peace
officer personnel records through a Pitchess motion was codified by the enactment
of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through
1045. (See City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81.) The
two Penal Code provisions make clear that peace officer personnel records are
generally confidential, and the Evidence Code provisions provide the specific
8 The court’s stated reasons appear to have been drawn from the probation officer’s
report, which listed the following “circumstances in aggravation”: “1. [Appellant’s]
prior convictions as an adult or adjudication of commission of the crimes as juvenile are
numerous or of increasing seriousness. [¶] 2. [Appellant] has served a prior prison term
whether or not charged or chargeable as an enhancement under section 667.5. [¶] 3.
[Appellant’s] prior performance on probation or parole was unsatisfactory.”
9 Likewise, the probation officer’s report found “no circumstances in mitigation.”

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procedures that must be followed to obtain discovery of such records. In
particular, Evidence Code section 1043, subdivision (b)(3) requires “[a]ffidavits
showing good cause for the discovery or disclosure sought, setting forth the
materiality thereof to the subject matter involved in the pending litigation . . . .”
Section 1045, subdivision (b) provides that the court, if it grants the motion,
shall examine the information in chambers. The law thus strikes a balance
between the peace officer’s claim to confidentiality, and the criminal defendant’s
interest in all information relevant to his or her defense. “The relatively relaxed
standards for a showing of good cause under section 1043, subdivision (b) . . .
insure the production for inspection of all potentially relevant documents. The in
camera review procedure and disclosure guidelines set forth in section 1045
guarantee, in turn, a balancing of the officer’s privacy interests against the
defendant’s need for disclosure.” (City of Santa Cruz v. Municipal Court, supra,
49 Cal.3d at p. 84.)
The test for determining whether good cause exists was set forth in City of
Santa Cruz v. Municipal Court, supra, wherein the Supreme Court stated that the
requisite showing “‘may be satisfied by general allegations which establish some
cause for discovery’ other than a mere desire for all information in the possession
of the prosecution” and that the information sought must be “‘requested with
adequate specificity to preclude the possibility that defendant is engaging in a
“fishing expedition.”’” (49 Cal.3d at p. 85, quoting Pitchess v. Superior Court,
supra, 11 Cal.3d at pp. 536-538.) Defendant in City of Santa Cruz was charged
with resisting arrest. The police reports made clear that considerable force was
used to effect the arrest. Defense counsel’s declaration asserted that the officers
used excessive force. The court concluded that the declaration set forth “a specific
factual scenario” to support the assertion that excessive force was used, and
“[v]iewed in conjunction with the police reports,” the declaration “establish[ed] a

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plausible factual foundation for an allegation of excessive force, put the court on
notice that the officers’ alleged use of excessive force will likely be an issue at
trial, and articulate a valid theory as to how the information sought might be
admissible.” (49 Cal.3d at pp. 85-86.)
In the wake of the Supreme Court’s decision in City of Santa Cruz, courts
evaluate defense Pitchess motions according to whether they provide “a ‘specific
factual scenario’ establishing a ‘plausible factual foundation’” for their allegations
of misconduct. (City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135,
1150; accord, People v. Collins (2004) 115 Cal.App.4th 137, 151; California
Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1020.)
Whether a sufficient showing of good cause was or was not made has been
the subject of numerous appellate decisions, and the answer has turned on the
specific facts presented. In City of San Jose, supra, where consent to search was
an issue, defense counsel stated that “‘knowing and voluntary consent to enter was
not in fact obtained by the officers’” without explaining “whether the officers
coerced [the defendant] into consenting (and if so, what means of coercion the
police employed), or whether the officers simply failed to obtain [the defendant’s]
consent.” (67 Cal.App.4th at p. 1147.) Similarly, counsel alleged that “‘evidence
disclosed during that search was mishandled by the officers to such an extent as to
deny [defendant] a fair trial,’” but “failed to specify which item or items of
evidence were mishandled [or] how the evidence was mishandled.” (Ibid.) The
Court of Appeal concluded that discovery should not have been allowed, reversing
a trial court order. (Id. at p. 1150.)
In People v. Collins, supra, 115 Cal.App.4th 137, this court affirmed a trial
court’s denial of a Pitchess motion where defendant was charged with possession
of drugs found during an attempted body cavity search that had been conducted
based on information received in an anonymous note. Defendant claimed that two

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specific officers “‘did not follow policy and procedures, destroyed material
evidence, and failed to follow search procedures [by] tampering with evidence
[and] acting without probable cause on an unreliable and bogus confidential letter
that was destroyed by design.’” (Id. at pp. 149-150.) The trial court denied the
motion because there was no evidence to suggest that the two officers whose
records he sought to discover “‘ever had any dealings with the evidence [or] that
they participated in the search.’” (Ibid.) We agreed with the trial court because the
two officers were neither “involved in the attempted visual body cavity search that
ultimately led to the discovery of the heroin” nor participated in “retriev[ing] the
heroin balloons from the floor after defendant dropped them there,” and because
“defendant’s declaration merely made general allegations of misconduct against
[the two officers] without alleging any facts that provided reason to believe the
misconduct had occurred.” (Id. at p. 151.)
In People v. Hustead (1999) 74 Cal.App.4th 410, on the other hand, the
court agreed with the defense that confidential material should have been reviewed
in camera where the declaration in support of the Pitchess motion contained
specific statements concerning misstatements in the arresting officer’s report.
“[A]ppellant’s counsel asserted in his declaration that the officer made material
misstatements with respect to his observations, including fabricating appellant’s
alleged dangerous driving maneuvers. He also stated that appellant asserted that he
did not drive in the manner described by the report and that his driving route was
different from that found in the report. In addition, he claimed that a material and
substantial issue in the trial would be the character, habits, customs and credibility
of the officer. These allegations were sufficient to establish a plausible factual
foundation for an allegation that the officer made false accusations in his report. It
demonstrated that appellant’s defense would be that he did not drive in the manner

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suggested by the police report and therefore the charges against him were not
justified.” (Id. at pp. 416-417.)
A basis for in camera review was also found in People v. Gill (1997) 60
Cal.App.4th 743, where the defendant asserted that one of two arresting officers
“pushed [his] face into a garage door, gashing his cheek,” and that “‘[i]t will be a
defense in this matter that the alleged contraband was placed on [defendant] by
[the arresting officer] to cover up for his use of excessive force and that the officer
has [a] pattern of fabricating probable cause in dope cases.’” (Id. at pp. 746, 750.)
The defendant did not seek review of the other arresting officer’s personnel files,
although both of the officers involved in the arrest testified to seeing the defendant
drop rocks of cocaine. The court held that the defendant “has demonstrated good
cause for the requested discovery and that the trial court abused its discretion by
summarily denying the discovery motion.” (Id. at p. 750.)
In California Highway Patrol v. Superior Court, supra, 84 Cal.App.4th
1010, the court concluded that defendant did not meet the good cause requirement
for discovery of personnel records pertaining to unrelated misconduct where he
alleged that two officers (McCain and Conley) used excessive force in arresting
him and had testimony from an independent witness that defendant did not act
violently until the officers used excessive force. Based on those allegations, the
trial court had been prepared to turn over documents related to a problem police
report prepared by Conley and documents related to a time card documentation
issue on the part of McCain. The Court of Appeal issued a writ directing the trial
court to vacate that order because the report indicating that defendant was violent
and resisted arrest was prepared by McCain and because the time card issue was
irrelevant. “Defendant has not claimed that Officer Conley prepared a false police
report concerning his arrest, nor did his motions set forth a specific factual scenario
to support an allegation of any kind of misconduct on Officer Conley’s part other

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than excessive force. [¶] Similarly, defendant’s motion failed to show good cause
for discovery of the investigation of Officer McCain’s time card documentation
issue. As we have discussed, defendant showed good cause for discovery of
complaints of false police reports filed by Officer McCain. However, that showing
is not good cause for defendant’s request for records reflecting time card
irregularities, because there is insufficient similarity between an allegation of
officer misconduct consisting of filing a false police report and prior officer
misconduct consisting of time card irregularities.” (84 Cal.App.4th at p. 1023.)
The court disagreed with defendant’s position, which it characterized as
follows: “(1) it is common knowledge that officers will lie to protect each other;
(2) therefore, an officer’s credibility is always at issue; and (3) any records
reflecting dishonesty on the officer’s part are material to the defense and thus
discoverable . . . as impeachment evidence.” (California Highway Patrol, supra,
at pp. 1023-1024.) The court rejected the notion that defendants could obtain
discovery of all information contained in an officer’s personnel records which
potentially reflect on the officer’s credibility merely by asserting that “police
officers are known to lie” because such a procedure “would effectively abrogate
the good cause requirement . . . by permitting fishing expeditions into the arresting
officers’ personnel records in virtually every criminal case.” (Id. at p. 1024.) The
court did not consider the “unsupported allegation by defendant that officer
credibility is relevant because all officers are dishonest and are likely to lie about
their fellow officers’ use of excessive force” to be the “showing of good cause”
required by Evidence Code section 1043. (Id. at p. 1025.)
B
As can be seen from the above discussion, the issue presented in review of a
Pitchess motion is whether the defendant has provided a “specific factual scenario”

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which establishes a “plausible factual foundation” for how the material sought
might aid in the defense, or whether the support for the motion could more
accurately be characterized as generic assertions that “all officers are dishonest”
raised in order to engage in a “fishing expedition” into otherwise confidential
information. Our analysis of the record leads us to agree with the trial court that
appellant failed to make the good cause showing required to warrant an in camera
review of the deputies’ personnel files.
Counsel’s declaration misleadingly describes the deputies’ reports, implying
that they indicate that all four deputies “recognized” appellant and her home as a
“known drug house [with] ties to the Southside Whittier Gang.” Nothing supports
that assumption. The reports indicate that only Deputy Bishop was familiar with
appellant or her home or her family’s alleged activities. Counsel’s declaration
charges that “[appellant] has been the subject of continued harassment.” There are
no specifics provided to back up that bald assertion. The only information that can
be gleaned either from counsel’s declaration or the deputies’ reports is that Deputy
Bishop was aware that appellant’s family had a history of drug sales, that her
daughter had been arrested for possession of heroin hidden in her groin area, and
that he knew appellant had two outstanding warrants. The declaration did not
contend that Deputy Bishop’s information was faulty or that he had ever
undertaken improper action with respect to appellant or any member of her family.
A law enforcement officer does not engage in “harassment” by keeping abreast of
criminal activity and outstanding warrants in his patrol area. Appellant’s vague
accusation of harassment does not support review of any of the deputies’
confidential files.
The final and most serious accusation in the declaration was that “[t]he
deputies” were “lying” when they said they “found in her underwear two baggies
containing a total of 62 balloons of heroin.” Although appellant did not explicitly

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so state, the court was apparently expected to draw the conclusion that the 62
balloons of heroin were planted. Again, however, appellant provides no
specifics--who, when, how, why--and the known facts undermine the claim. The
declaration states that Deputy Bishop and his partner, after taking appellant into
custody for having two outstanding warrants, became “suspicious of a bulge in
[appellant’s] groin area and asked if she was carrying any drugs.” Appellant
denied being in possession of drugs and told the deputies “to ‘go ahead and strip
search me if you want.’” The reports put the fact slightly differently. They state
that Deputy Doeve noticed the bulge in appellant’s groin area, asked appellant if
she was in possession of drugs, and received permission to search.
The most salient point was not disputed: two different sets of deputies were
involved, and there was no evidence that the deputies who conducted the search
had ever heard of appellant before that day. Deputy Bishop, the sole deputy
familiar with appellant and her prior activities, was not involved in the search in
any way. Thus, based on nothing more than one deputy’s familiarity with
appellant’s history as a drug offender, we are expected to conclude that four
deputies silently and instantaneously conspired to plant drugs on her during a
routine search. Like the court in California Highway Patrol, supra, 84
Cal.App.4th 1010, we reject the notion implicit in appellant’s contentions that all
law enforcement officers are dishonest and lie to back up their fellow officers.
Appellant did not provide a “specific factual scenario” establishing a “plausible
factual foundation” for her claim of misconduct. She did not, for example, allege
that evidence was planted in order to cover up use of excessive force (see City of
Santa Cruz v. Municipal Court, supra, 49 Cal.3d 74; People v. Gill, supra, 60
Cal.App.4th 743); nor did she claim that the officers were lying about her consent
to the search (cf. City of San Jose v. Superior Court, supra, 67 Cal.App.4th 1135;
People v. Collins, supra, 115 Cal.App.4th 137). Her only attempt to suggest a

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motive--Deputy Bishop’s knowledge of her background and presumed desire to
catch her in possession--fell short since Deputy Bishop did not conduct the search
or claim to have found the heroin balloons. The trial court did not abuse its
discretion in denying her motion.
II
Appellant claimed in the second half of her original brief on appeal that the
constitutional rights described in Brady v. Maryland (1963) 373 U.S. 83 were
somehow violated. Under Brady, the prosecution must disclose any evidence that
is favorable to the defendant and material on the issues of guilt or punishment.
(See People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1471.) This obligation to
disclose includes both impeachment and exculpatory evidence, and exists
irrespective of whether the defendant makes a specific request for such
information. (Ibid.; see also Abatti v. Superior Court (2003) 112 Cal.App.4th 39,
52.) “‘The scope of this disclosure obligation extends beyond the contents of the
prosecutor’s case file and encompasses the duty to ascertain as well as divulge
“any favorable evidence known to the others acting on the government’s
behalf[,]”’ including the police.” (People v. Gutierrez, supra, 112 Cal.App.4th at
p. 1472, quoting In re Brown (1998) 17 Cal.4th 873, 879.)
Under Brady, evidence is considered material “‘if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” (City of Los Angeles v. Superior Court
(2002) 29 Cal.4th 1, 7-8, quoting United States v. Bagley (1985) 473 U.S. 667,
682.) “A ‘reasonable probability’ of a different result is accordingly shown when
the government’s evidentiary suppression ‘undermines confidence in the outcome
of the trial.’ [Citation.]” (Kyles v. Whitley (1995) 514 U.S. 419, 434; see also
People v. Gutierrez, supra, 112 Cal.App.4th at p. 1472.) However, it must be

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noted that “Brady did not create a general constitutional right to discovery in a
criminal case.” (People v. Gutierrez, supra, 112 Cal.App.4th at p. 1472; see also
Abatti v. Superior Court, supra, 112 Cal.App.4th at p. 52.)
The interplay between Brady and Pitchess was described by our Supreme
Court in City of Los Angeles v. Superior Court, supra, 29 Cal.4th at page 14: “Our
state statutory scheme allowing defense discovery of certain officer personnel
records creates both a broader and lower threshold for disclosure than does the
high court’s decision in Brady, supra, 373 U.S. 83. Unlike Brady, California’s
Pitchess discovery scheme entitles a defendant to information that will ‘facilitate
the ascertainment of the facts’ at trial (Pitchess, supra, 11 Cal.3d at p. 536), that is,
‘all information pertinent to the defense’ (City of San Jose v. Superior Court
(1993) 5 Cal.4th 47, 53 . . .).” The court went on to say that “[b]ecause Brady’s
constitutional materiality standard is narrower than the Pitchess requirements, any
citizen complaint that meets Brady’s test of materiality necessarily meets the
relevance standard for disclosure under Pitchess.” (City of Los Angeles v. Superior
Court, supra, 29 Cal.4th at p. 10.)
The converse is also true. Evidence is material under Brady only “‘if there
is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.’” (City of Los Angeles v.
Superior Court, supra, 29 Cal.4th at pp. 7-8.) For purposes of Pitchess, however,
“defendant need only show that the information sought is material ‘to the subject
matter involved in the pending litigation.’” (Id. at p. 10.) It follows that “if a
defendant cannot meet the less stringent Pitchess materiality standard, he or she
cannot meet the more taxing Brady materiality requirement.” (People v. Gutierrez,
supra, 112 Cal.App.4th at p. 1474.)
Appellant’s real argument seemed to be that Brady requires routine review
of the complete files of all personnel records of police officer witnesses in a

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criminal proceeding. The court in Gutierrez rejected this assertion and the
assertion that “the prosecutor was obliged to conduct a review of the files of ‘all
significant police officer witnesses’ and disclose any Brady material.” (112
Cal.App.4th at pp. 1474-1475.) The court cited the Supreme Court’s holding in
Alford v. Superior Court, supra, 29 Cal.4th 1033, 1046, that unless the prosecution
seeks Pitchess disclosure “by complying with the procedure set forth in Evidence
Code sections 1043 and 1045[,] . . . peace officer personnel records retain their
confidentiality vis-à-vis the prosecution.” Since the Supreme Court has held that
information in confidential personnel files is not deemed to be in the possession of
the prosecution, the failure to conduct a review of the files and disclose any
negative information to the defense could not have violated Brady.
III
In her brief in support of the petition for rehearing, appellant contended that
the trial court committed sentencing error under Blakely v. Washington, supra, ___
U.S. ___ [124 S.Ct. 2531] and Apprendi v. New Jersey, supra, 530 U.S. 466,
because it imposed the upper term after making factual findings concerning
aggravating and mitigating factors.
In Apprendi, the court held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
(Apprendi v. New Jersey, supra, at pp. 483, 490.) In Blakely, the Supreme Court
expanded the scope of Apprendi, making its rule potentially applicable to a wide
range of traditional sentencing factors. The court explained: “[T]he ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant. [Citations.] . . . [T]he relevant ‘statutory maximum’ is not the

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maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings. When a judge inflicts
punishment that the jury’s verdict alone does not allow, the jury has not found all
the facts ‘which the law makes essential to the punishment,’ [citation], and the
judge exceeds his proper authority.” (124 S.Ct. at p. 2537.)
Respondent contends, as a preliminary matter, that appellant waived or
forfeited this contention by failing to object to the sentencing at the time of trial,
citing People v. Sample (2004) 122 Cal.App.4th 206, 220-221, review granted
December 1, 2004, S128561. In People v. Vaughn (2004) 122 Cal.App.4th 1363,
review granted December 15, 2004, S129050, we announced our disagreement
with Sample’s holding that failure to raise Apprendi in the trial court resulted in
forfeiture of the right to argue Blakely on appeal. Instead, in accord with the courts
in People v. George (2004) 122 Cal.App.4th 419, 424, review granted
December 15, 2004, S128582, and People v. Barnes (2004) 122 Cal.App.4th 858,
879, review granted December 15, 2004, S128931, we held: “The Supreme
Court’s decision in Blakely extended the Apprendi rationale into a new area, and
created an opportunity for reviving the debate over Apprendi’s ultimate meaning
and impact . . . . Appellant cannot have forfeited or waived a legal argument that
was not recognized at the time of his trial.” (People v. Vaughn, supra, at p. 1369.)
Although review was granted by the Supreme Court in Vaughn, we see no reason
to diverge from its reasoning, particularly in view of the increasing number of
courts that take the same approach. (See, e.g., People v. Ackerman (2004) 124
Cal.App.4th 184, 193-195; People v. Juarez (2004) 124 Cal.App.4th 56, 75-76;
People v. Picado (2004) 123 Cal.App.4th 1216, 1233-1234; People v. Fernandez
(2004) 123 Cal.App.4th 137, 142; People v. Jaffe (2004) 122 Cal.App.4th 1559,
1583.)

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Turning to the merits, appellant contends that the trial court erred in
imposing the upper term and foregoing the standard term based on facts other than
recidivism not found by the jury. Respondent maintains that “[t]his Court recently
rejected this argument in People v. Vaughn, [supra].” In Vaughn, the jury found
defendant guilty of two counts of murder with special circumstances and 11 counts
of attempted murder. The trial court made no separate factual findings. It imposed
the upper term for one of the attempted murder charges based on the violence and
multiplicity of appellant’s crimes. Since the court’s basis for imposing the upper
term was derived from facts inherent in the jury verdict, we had no need to address
whether an upper term sentence based on other facts would run afoul of Blakely.10
The facts in this case are closer to those in our recent decision in People v.
White (Dec. 15, 2004, B166502) ___ Cal.App.4th ___ where we concluded that
“the Washington sentencing scheme struck down by Blakely is equivalent in all
essential respects to California’s,” and agreed with those courts holding Blakely
applicable to upper term sentencing. We further held that we could not “go along
with those courts that have held that a single true aggravating factor will transform
the maximum sentence permissible from the midterm to the upper term and
salvage sentences based in large part on judicial factfinding,” believing such
outcome to be foreclosed by the Supreme Court’s rejection of a similar argument
raised in Apprendi. (People v. White, supra, ___ Cal.App.4th at p. ___.) The sole
issue that needs to be addressed here, therefore, is whether the trial court
10 In a similar vein, in People v. Calhoun (2004) 123 Cal.App.4th 1031, 1053-1054,
where the jury’s verdict included findings that defendant was guilty of two counts of
vehicular manslaughter involving separate victims, the Court of Appeal held that the trial
court’s reliance on “multiple victims” to impose upper term did not result in Blakely error
because the term was imposed “solely on the basis of the facts reflected in the jury
verdict.”

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considered improper factors in choosing the upper term, and if so, whether such
error was harmless.
In this regard, appellant contends all Blakely error is structural, requiring
reversal per se because it is tantamount to denial of a jury trial, citing People v.
Lemus (2004) 122 Cal.App.4th 614, review granted December 1, 2004, S128771,
where the court stated that “the loss of the jury trial right cannot be found harmless
on the theory that if a jury trial had been held the defendant would have lost on the
issue.” (Id. at p. 622.)
We assume without deciding that harmless error analysis applies because we
believe that the error here cannot be deemed harmless. The trial court gave three
express reasons for imposing the upper term of four years: (1) appellant’s “prior
convictions”; (2) appellant’s “prior prison term”; and (3) her prior “unsatisfactory”
performance on probation or parole.
The Supreme Court said in Apprendi that “a prior conviction” is an
appropriate factor for consideration by the judge that need not be submitted to the
jury. (Apprendi, supra, 530 U.S. at p. 490.) Moreover, the “prior conviction”
exception has been construed broadly to apply not just to the fact of the prior
conviction, but to other issues relating to the defendant’s recidivism. (People v.
Thomas (2001) 91 Cal.App.4th 212, 221.)11 We see no reason why the definition
of recidivism should not include a defendant’s prior prison term. The problem
with the court’s use of this factor here, however, is that the record is unclear about
which prior convictions and/or prison terms were used to justify the upper term.
Penal Code section 1170, subdivision (b) provides that “[t]he court may not impose
11 The court in Thomas gave as examples of matters related to recidivism that could
properly be resolved by the judge issue pertaining to whether the defendant committed a
new offense within a certain number of years of being released from prison or whether
defendant served a prior prison term. (91 Cal.App.4th at pp. 222-223.)

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an upper term by using the fact of any enhancement upon which sentence is
imposed under any provision of law.” Although the probation officer’s reports
contained a long list of prior offenses, primarily misdemeanors, committed by
appellant, the court received evidence and made specific findings only as to the
three Health and Safety Code section 11352 priors. As we have seen, those priors
formed the basis for three 3-year enhancements. Thus, it would have been error
for the court to rely on those priors--or the prison terms resulting from them--to
form the basis for the upper term.
The other specific factor set forth by the court--that appellant’s performance
on parole was “unsatisfactory”--may be proper in some circumstances, for
example, where the defendant’s prison-system records indicate that parole was
granted at some point and then revoked prior to completion. Such finding would
fit within the recidivism exception to Blakely. On the other hand, it would be
unacceptable under Blakely for a judge to make a finding that some specific
conduct occurred while the defendant was on parole--such as use of drugs or
failure to meet with the parole officer--if such conduct did not lead to parole
revocation. Like the reference to prior convictions and prior prison terms,
however, we cannot determine from the record whether the court simply meant that
a period of parole had been revoked prior to completion when it stated that
appellant’s performance on parole was “unsatisfactory.”
There were two other potential factors mentioned by the court at the
sentencing hearing--that the evidence indicated possession of 62 balloons of
heroin, and that “the jury . . . found . . . true the enhancement under 1203.07(a)(1)
and 11352.5, sub (1) which requires the mandatory state prison sentence.” The
former is an example of judicial factfinding outside the sphere of recidivism, the
latter fact was used for enhancement of the sentence in other ways.

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In sum, the basis for the court’s decision to impose the upper term is not
clear. The record contains indications that the court may have utilized factors
either improper under Blakely or under Penal Code section 1170, subdivision (b).
Therefore, we cannot say with complete assurance that any improper factfinding
the court engaged in represented harmless error--assuming arguendo that is the
appropriate standard for Blakely review. The court might well have come to a
different conclusion concerning the upper term had it been aware of the restrictions
on its power imposed by Blakely. We, therefore, reverse as to the sentence only,
and remand for a new sentencing hearing.
DISPOSITION
The judgment is reversed as to the sentence only, and the matter remanded
to the court to conduct a new sentencing hearing. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURRY, J.
We concur:
EPSTEIN, P.J.
HASTINGS, J.

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