People v. Elliott CA2/2

Filed 7/28/16 P. v. Elliott CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B266756

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA064792) v.

FORRISS LAWRENCE ELLIOTT,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Blanchard, Judge. Affirmed.

Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Andrew S. Pruitt, Deputy Attorney General, for Plaintiff and Respondent. ******

Forriss L. Elliott (defendant) appeals his felony convictions of driving under the influence of alcohol and driving with a blood-alcohol content of 0.08 percent or higher. He argues that his trial counsel was constitutionally ineffective for not objecting when the People amended the charging document to add a new “strike” offense after trial, and asks us to review the transcript of the trial court’s in camera hearing reviewing law enforcement personnel records. We conclude that any ineffectiveness did not prejudice defendant, and that the trial court complied with the procedures set forth in Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Accordingly, we affirm. FACTS AND PROCEDURAL BACKGROUND On August 23, 2013, defendant was pulled over driving a U-Haul truck. He smelled of alcohol, and a preliminary alcohol screening device indicated that his blood- alcohol content was 0.203 percent and 0.208 percent, more than twice the 0.08 percent legal limit. This was defendant’s third incident of driving under the influence in a month and his fourth in the past six years. In the operative, first amended information, the People charged defendant with (1) driving under the influence of alcohol, as a felony because he had three prior convictions for the same crime in the last 10 years (Veh. Code, §§ 23152, subd. (a) & 23550), and (2) driving with a blood-alcohol content of 0.08 percent or higher, as a felony because he had three prior convictions for the same crime in the last 10 years 1 (Veh. Code, §§ 23152, subd. (b) & 23550). The People further alleged that defendant’s 2008 conviction for making criminal threats (Pen. Code, § 422) was a strike within the meaning of our Three Strikes law (Pen. Code, §§ 667, subds. (b)-(j) & 1170.12, subds. (a)-(d)). Prior to trial, defendant filed a motion asking the trial court to review the personnel records of the two Los Angeles Sheriff’s deputies who pulled him over. The