People v. Flett CA5

Filed 10/14/20 P. v. Flett 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F078254 Plaintiff and Respondent, (Super. Ct. No. BF168838A) v.

RICHARD L. FLETT, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge. Jake Stebner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Detjen, J. and Meehan, J.

Appellant Richard L. Flett, Jr., appeals following his convictions on one count of transporting or selling a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 1) and one count of possessing for purposes of sale a controlled substance (Health & Saf. Code, § 11378; count 2). Appellant contends, and the People agree, that recent changes to Penal Code1 section 667.5 retroactively apply to his case and render his sentence improper to the extent it includes a one-year prison prior enhancement under that section. Additionally, appellant requests we conduct a Pitchess2 review in this case. For the reasons set forth below, we modify the judgment and affirm. FACTUAL AND PROCEDURAL BACKGROUND In June 2017, appellant was stopped by police after failing to stop his bicycle at a stop sign. Appellant allegedly agreed to let officers search his person. As a result of that search, they found 46.45 grams of methamphetamine, $75 in various bills, a metal dish, a digital scale, and three cell phones. After his arrest, appellant allegedly told officers he would bail out and begin selling again. Appellant was charged with count 1 and count 2, both counts included additional allegations appellant suffered a previous prior felony conviction under sections 667 and 1170.12 and that appellant previously served a separate prison term for being a felon in possession of a firearm in violation of section 29800 under section 667.5. Relevant to this case, prior to trial appellant sought discovery under Pitchess with respect to one of the officers involved in his arrest. On assertions the alleged consent to search and alleged statement regarding selling drugs were fabricated, appellant requested and the court granted discovery of information contained in the officer’s personnel records related to the following: “(1) false statements in reports, (2) fabrication of witness testimony in reports, (3) false testimony, (4) falsification of probable cause