People v. Hargrove CA3

Filed 8/11/16 P. v. Hargrove CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C078445

Plaintiff and Respondent, (Super. Ct. No. 13F02462)

v.

AARON CHRISTOPHER HARGROVE,

Defendant and Appellant.

Defendant Aaron Christopher Hargrove appeals from his conviction for drug possession while incarcerated and challenges the jury finding true he had two prior strikes. (Pen. Code, §§ 4573.6, 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).)1 Defendant contends the trial court erred in ruling he was not entitled to additional discovery of the pretrial oral discussion between the prosecutor and the People’s witness

1 Undesignated statutory references are to the Penal Code.

1

Ronald Freitas, the deputy district attorney who prosecuted Hargrove’s prior convictions. The People concede the error, but argue it was harmless. Defendant also argues his right to a fair trial was violated by improper and prejudicial testimony from Freitas and contends the trial court erred in refusing to grant a mistrial. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2013, defendant was charged with possessing half a gram of heroin while incarcerated in state prison and having two prior convictions in 1999 for first degree murder and gang activity. (§§ 4573.6, 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) At defendant’s request, the trial court bifurcated the drug charges and the trial on his priors. In September 2014, a jury convicted defendant of the possession charge, but the trial court mistakenly released the jury without considering the prior strike allegations. A jury trial on the prior strike allegations was held in December 2014. The People presented a “969b packet,” which included two abstracts of judgment, a photograph of defendant, and a fingerprint card for defendant. (§ 969b; Evid. Code, § 1530.) The prosecutor explained the contents of the 969b packet during her closing argument. After one and a half days deliberation, the jury was deadlocked and the court declared a mistrial. A second jury trial on the strike allegations was held in January 2015. Before trial, the prosecutor disclosed to defendant via e-mail the People intended to call Freitas as a witness. Defendant moved for pretrial discovery of the oral discussions between the prosecutor and Freitas. The prosecutor explained to the trial court he spoke with Freitas and confirmed Freitas remembered defendant’s 1999 proceedings. During their conversation, Freitas “described . . . some of the underlying facts of the murder trial,” and confirmed his availability to testify. The prosecutor also explained to the trial court he and Freitas were law school classmates and had interned together at the public defender’s office. Defendant requested the prosecutor provide “a recitation of the phone