People v. Obrien CA5

Filed 7/8/16 P. v. Obrien 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070105 Plaintiff and Respondent, (Super. Ct. No. BF153751A) v.

COLIN NEAL OBRIEN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. Ronald Richard Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Franson, J. and Peña, J.

Appellant Colin Neal Obrien appeals his sentence on one count of possession of a controlled substance for sale (Health & Saf. Code, § 11378, subd. (a)) with two prior serious or violent felony convictions (Pen. Code, § 667, subd. (e)) and one prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). Appellant contends insufficient evidence supports the one-year prior prison term enhancement included with his sentence. Appellant separately requests this court conduct an independent review of the materials considered in response to appellant’s pretrial Pitchess1 motion. For the reasons set forth below, we reverse and remand with respect to the prior prison term enhancement and affirm with respect to the Pitchess request. FACTUAL AND PROCEDURAL BACKGROUND On March 7, 2014, Kern County probation officers conducted a probation search of a residence where appellant was residing. In the course of that search, the probation officers found a digital scale, used syringes, and 29.23 grams of methamphetamine, among other items, each in close proximity to appellant’s mail. Appellant was charged with possession of a controlled substance for sale (count 1), including enhancement allegations for three prior serious or violent felony convictions and three prior prison terms;2 possession of a controlled substance (Health & Saf. Code, § 11377/count 2), including enhancement allegations for three prior serious or violent felony convictions and three prior prison terms;3 and misdemeanor possession of

1 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). 2 At the bifurcated trial on sentencing issues, the trial court recognized the information duplicated allegations related to an alleged July 13, 1998, burglary conviction under Penal Code section 459. These duplicate entries were struck from the pleading. In addition, the court permitted an amendment to the information to change the location of the alleged May 9, 2006, conviction for taking a vehicle without consent under Vehicle Code section 10851 from San Diego County to Kern County. 3 Count 2 was dismissed after appellant’s conviction on count 1. Notably, the prior prison allegations for count 2 were different than count 1 in that they included a