P. v. Sotelo CA5

Filed 3/19/13 P. v. Sotelo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F062642 Plaintiff and Respondent, (Super. Ct. No. VCF227014A) v.

ISAAC SEBASTIAN SOTELO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge. Cheryl Anderson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Wiseman, Acting P.J., Detjen, J. and Franson, J.

A jury convicted appellant, Isaac Sebastian Sotelo, of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))1 and resisting, delaying or obstructing a peace officer (§ 148, subd. (a)(1)), and in a separate proceeding, the court found true allegations that appellant had suffered a prior conviction that qualified as both a prior serious felony conviction under section 667, subdivision (a) (section 667(a)) and as a “strike,”2 and that he had served three separate prison terms for prior felony convictions within the meaning of section 667.5, subdivision (b) (section 667.5(b)). The court imposed a prison term of 12 years, consisting of the following: the three-year midterm on the robbery conviction, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)) for a total of six years; five years on the prior serious felony enhancement (§ 667(a)) and one year on one of the prior prison term enhancements (§ 667.5(b)). The court neither struck, nor imposed sentence on, the other two section 667.5(b) enhancements. Prior to trial, appellant made a so-called Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) for discovery of personnel records of two police officers involved in appellant‟s arrest. At an in camera hearing on the motion, the court, after reviewing documents produced at the hearing, ordered disclosure of some information. Appellant has asked this court to review the sealed transcript of the in camera hearing and materials produced by the People at that hearing “to determine if the trial court followed proper Pitchess procedures and disclosed all relevant materials contained in the personnel records.” This is the sole issue raised by appellant. As we explain below, we find no error in the trial court‟s ruling on the Pitchess motion. However, as we also explain below, we have concluded the court committed sentencing error. We vacate the sentence and remand for resentencing.