People v. Schaar CA5

Filed 9/30/16 P. v. Schaar 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070279 Plaintiff and Respondent, (Super. Ct. No. MF010998A) v.

DAVID WILLIAM SCHAAR, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush and Colette M. Humphrey, Judges.

Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda E. D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Levy, Acting P.J., Peña, J. and McCabe, J.† †Judge ofthe Merced Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

INTRODUCTION Pursuant to a plea agreement, appellant David William Schaar pled no contest to one count of violating Penal Code1 section 69, resisting arrest, and admitted suffering a prior conviction for violating section 243, subdivision (d) (section 243(d)), battery, but reserved the right to contest whether the prior conviction constituted a strike offense for purposes of sentencing. At sentencing, the trial court found the prior conviction to be a strike and imposed double the low term for the section 69 offense pursuant to section 667, subdivision (e). Schaar contends, and the People concede, insufficient evidence supports the trial court’s finding the prior conviction constituted a strike. Schaar also requests this court to independently review the documents produced in response to a motion made pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We reverse the finding that the prior conviction constitutes a strike and remand for resentencing. FACTUAL AND PROCEDURAL SUMMARY On February 21, 2014, Schaar was charged in count 1 with violating section 67, offering a bribe to an executive officer; in count 2 with violating section 422, making criminal threats; in count 3 with violating section 69, resisting arrest; and in count 4 with violating Health and Safety Code section 11357, subdivision (a), possession of concentrated cannabis. Count 2 was subsequently dismissed pursuant to section 995. On April 23, 2014, Schaar filed a Pitchess motion seeking personnel records of the arresting officer pertaining to incidents of falsification of information, omission of information in reporting investigations, dishonesty in reporting investigations, conduct unbecoming an officer, and use of excessive force. The People filed opposition to the motion.