People v. Figueroa CA5

Filed 7/31/14 P. v. Figueroa CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F066755 Plaintiff and Respondent, (Super. Ct. No. BF143507B) v. OPINION GREGORIO FIGUEROA,

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey and John R. Brownlee, Judges.† Gabriel C. Vivas, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

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* Before Gomes, Acting P.J., Kane, J., and Peña, J. † Judge Humphrey presided over appellant’s hearing pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. Judge Brownlee presided over appellant’s trial.

INTRODUCTION On September 17, 2012, an information was filed alleging that appellant, Gregorio Figueroa, possessed drugs in jail (Pen. Code, § 4573.8, count 1)1 and possessed drug paraphernalia in jail (§ 4573.8, count 2). The information also alleged two prior prison term enhancements (§ 667.5, subd. (b)). On October 25, 2012, the court conducted an in camera hearing to review the personnel files of three sheriff’s deputies pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The court denied the appellant’s Pitchess motion. At the conclusion of a jury trial on November 20, 2012, appellant was convicted of count 1 and acquitted of count 2.2 In a bifurcated proceeding, the trial court found the prior prison term enhancements to be true. On February 13, 2013, the trial court sentenced appellant to a term of eight months on count 1 plus a consecutive term of two years (one year for each prior prison term enhancement). The court also imposed various fines and fees. On appeal, appellant seeks independent review of the sheriff’s deputies’ personnel files pursuant to Pitchess. Appellant also contends the trial court erred in excluding evidence that was not disclosed to the defense during pretrial discovery. We find no error and affirm the judgment. FACTS On August 13, 2012, appellant was in jail at the Kern County Central Receiving Facility. Sheriff’s Deputy Gabriel Lopez was on duty in the jail at 4:50 a.m. that day. Lopez looked into cell B3-6 through one of two one-way windows, or portholes, where