People v. Elliott CA2/2
B266756
| Cal. Ct. App. | Jul 28, 2016Background
- On August 23, 2013, Forriss L. Elliott was stopped driving a U-Haul, smelled of alcohol, and registered BAC readings over .20; he had multiple prior DUI incidents in the past six years.
- The first amended information charged two felony DUI counts (Veh. Code §§ 23152(a), (b); § 23550) with enhancements based on three prior DUI convictions and alleged one prior strike (2008 criminal threats conviction).
- Pretrial, Elliott filed a Pitchess motion; the trial court reviewed a deputy’s personnel file in camera and ordered limited disclosure.
- Elliott moved under People v. Superior Court (Romero) to strike the strike allegation; the court denied the motion pretrial (without prejudice) and again at sentencing after trial.
- After the jury convicted Elliott and he waived jury determination of strike truth, the People filed a second amended information—adding a 1990 assault with a deadly weapon conviction as a second strike—after the jury had been discharged; defense counsel did not object.
- The court found both strikes true, sentenced Elliott to a doubled midterm of four years under Three Strikes, and Elliott appealed asserting ineffective assistance for failure to object and challenging the Pitchess proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not objecting to the second amended information adding a strike after the jury was discharged | Prosecutor: Failure to object forfeits the claim; amendment was permissible prior to sentencing if not objected to | Elliott: Counsel should have objected under Tindall because amendment was filed after jury discharge; omission was deficient assistance | Counsel’s omission may have been deficient but caused no prejudice because sentence would be the same whether one or two strikes existed |
| Whether the court’s denial of Romero relief could have been different absent the second strike | Prosecutor: Romero relief discretionary; court already denied same motion pretrial | Elliott: With only one strike the court might have granted Romero, changing sentence | Court found pretrial denial and sentencing comments show no reasonable probability Romero would have been granted; sentence unchanged |
| Whether the Pitchess in camera review and disclosures were adequate | Prosecutor: Trial court properly exercised discretion and disclosed appropriate materials | Elliott: Challenges adequacy of Pitchess proceedings and requests transcript review | Appellate review (Mooc) found record adequate and trial court properly exercised discretion; no error in disclosures |
| Whether resentencing or correction of abstract of judgment is required because the 1990 conviction was not reflected as a strike on the abstract | Prosecutor: No relief required; abstract already does not reference the 1990 conviction as a strike | Elliott: Requests correction/remedy tied to challenge of added strike | Court notes abstract does not list 1990 conviction as a strike and no correction ordered; judgment affirmed |
Key Cases Cited
- Pitchess v. Superior Court, 11 Cal.3d 531 (trial court’s in camera personnel review procedures for discovery of officer misconduct)
- People v. Tindall, 24 Cal.4th 767 (prosecution may amend information to add priors until sentencing unless jury has been discharged without objection)
- People v. Superior Court (Romero), 13 Cal.4th 497 (trial court’s discretionary power to strike or dismiss strike allegations)
- People v. Mooc, 26 Cal.4th 1216 (appellate review standard for sealed in camera Pitchess records)
- People v. Mai, 57 Cal.4th 986 (defense tactical reasons may justify not objecting to amendments)
- People v. Watson, 46 Cal.2d 818 (harmless error standard for nonconstitutional errors)
- People v. Prince, 40 Cal.4th 1179 (discussing appellate review of Pitchess proceedings)