P. v. Beavers

Filed 11/30/20 P. v. Beavers CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
GARY LEE BEAVERS,
Defendant and Appellant.
G056848
(Super. Ct. No. 14WF2967)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Arlene Sevidal
and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

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Gary Lee Beavers appeals from a judgment after a jury convicted him of
numerous sexual offenses. Beavers argues the trial court’s sentence violated his due
process rights, and we should independently review the court’s ruling on his motion to
disclose peace officer personnel records. There was no error, and we affirm the
judgment.
FACTS
After the prosecution filed a complaint charging Beavers with sexual
offenses against two victims under 14 years of age, he appeared in court and asked to
represent himself. The prosecutor noted she would include a multiple victim allegation
as to count 3, and thus, Beavers would face a maximum penalty of 75 years to life. The
following week, the trial court granted Beavers’ request to represent himself. The
prosecutor and the trial court reiterated Beavers faced a 75 years to life plus eight months
sentence.
An amended information charged 66-year-old Beavers with the following:
oral copulation with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b), all
further statutory references are to the Penal Code) (count 1); digital penetration with a
child 10 years old or younger (§ 288.7, subd. (b)) (count 2); three counts of lewd act upon
a child under 14 years old (§ 288, subd. (a)) (counts 3-5); using a minor for sex acts
(§ 311.4, subd. (c)) (count 6); and possession and control of child pornography (§ 311.11,
subd. (a)) (count 7). Counts 1 to 4 concerned Jane Doe, and count 5 concerned John Doe.
With respect to counts 3, 4, and 5, the amended information “alleged pursuant to . . .
sections 667.61[, subdivisions] (b)/(e) that in the commission of the above offense[s] . . .
Beavers committed an offense specified in . . . section 667.61[, subdivision] (c) against
more than one victim.”
Before trial, Beavers filed a motion for discovery of peace officer personnel
records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The trial

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court granted the motion, reviewed the personnel files in camera, and determined there
were no records responsive to the motion.
The prosecution offered evidence Beavers sexually abused a seven-year-old
girl and her five-year-old brother, and he photographed and videotaped some of his
depravity. He both denied the charges, and in part asserted he acted under the influence.
The jury convicted Beavers of all counts and found true the multiple victim
allegations. The prosecution filed a sentencing brief requesting the trial court sentence
Beavers pursuant to the “One Strike” law (§ 667.61, subds. (b), (e), (j)(2)). The court
sentenced him to prison for three years plus 105 years to life as follows: count 6-three
years; counts 1 and 2-two terms of 15 years to life; and counts 3, 4, and 5-consecutive
terms of 25 years to life. The court imposed and stayed punishment on count 7.
DISCUSSION
I. One Strike Law
Beavers argues the trial court’s imposition of 25 year-to-life terms on
counts 3, 4, and 5 violated his due process rights because the information did not mention
section 667.61, subdivision (j)(2), and the prosecution and the court advised him the
maximum penalty was something less.1 We disagree.
Section 667.61, subdivision (b), requires a 15-year-to-life term for a
qualifying offense “[e]xcept as provided in subdivision (a), (j), (l), or (m).” One of those
identified exceptions—subdivision (j)—requires the longer term of 25 years to life when
the same requirements are met from subdivision (b) but the victim is a child under 14
years old. (§ 667.61, subd. (j)(2).)
Our Supreme Court has stated “a defendant has a cognizable due process
right to fair notice of the specific sentence enhancement allegations that will be invoked
to increase punishment for his crimes.” (People v. Mancebo (2002) 27 Cal.4th 735, 747
1 The Attorney General does not assert forfeiture of this issue. (People v.
Mancebo (2002) 27 Cal.4th 735, 749-750, fn. 2 (Mancebo).)

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(Mancebo).) Additionally, “The penalties provided in [section 667.61] shall apply only if
the existence of any circumstance specified in subdivision (d) or (e) is alleged in the
accusatory pleading pursuant to this section, and is either admitted by the defendant in
open court or found to be true by the trier of fact.” (§ 667.61, subd. (o), accord § 667.61,
subd. (f) [“pled and proved”].) “[A]n information that fails to plead the specific
numerical subdivision of an enhancement is [not] necessarily inadequate.” (People v.
Anderson (2020) 9 Cal.5th 946, 957 (Anderson) [accusatory pleading must adequately
inform defendant how prosecutor will seek to exercise discretion]; citing Mancebo,
supra, 27 Cal.4th at p. 753.)2
In People v. Jimenez (2019) 35 Cal.App.5th 373, 377-378 (Jimenez), the
information charged defendant with a plethora of sex crimes involving three child
victims. As to numerous counts, the information alleged the multiple victim
circumstance, citing section 667.61, subdivisions (b) and (e), but not subdivision (j). The
trial court sentenced defendant to consecutive 25-year-to-life terms presumably based on
section 667.61, subdivision (j)(2). (Jimenez, supra, 35 Cal.App.5th at pp. 377-378.) The
appellate court concluded the information provided insufficient notice of the longer One
Strike terms: “Here, the information only informed [defendant] he could be sentenced to
terms of 15 years to life under . . . section 667.61, subdivisions (b) and (e) for committing
the alleged offenses against multiple victims. The information did not put him on notice
that he could be sentenced to terms of 25 years to life under section 667.61[, subdivision]
(j)(2) for committing those offenses upon multiple victims, at least one of whom was
under 14 years of age. Under these circumstances, imposition of sentence under section
667.61[, subdivision] (j)(2) violated [defendant’s] constitutional right to due process.”
(Jimenez, supra, 35 Cal.App.5th at p. 397, fn. omitted.)
2 After briefing was complete in this case, we invited the parties to file
supplemental letter briefs on Anderson, supra, 9 Cal.5th 946.

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Two published decisions have disagreed with Jimenez, and the California
Supreme Court has granted review to resolve the conflict. One of those cases was from a
different panel of this court—In re Vaquera (2019) 39 Cal.App.5th 233 (Vaquera),
review granted November 26, 2019, S258376. In Vaquera, the information charged
defendant with two counts of sex crimes involving two child victims. The information
alleged the multiple victim circumstance, citing section 667.61, subdivisions (b) and (e),
but not subdivision (j). (Vaquera, supra, 39 Cal.App.5th at p. 236.) The Vaquera court
found the information was not required to allege subdivision (j)(2), because subdivision
(j)(2)’s 25-year-to-life exception “was effectively noted in the information by reference
to section 667.61, subdivision (b), which specifically references, in its introductory
clause, section 667.61, subdivision (j), as an exception to its provisions.” (Vaquera,
supra, 39 Cal.App.5th at pp. 241-242.) The court also concluded defendant failed to
demonstrate any prejudice because he could not show he would have prepared or
defended his case any differently. (Id. at p. 242.) Finally, the court disagreed with
Jimenez, reasoning that the court failed to consider the fact the 25-year-to-life exception
under subdivision (j)(2), is specifically referenced in subdivision (b). (Vaquera, supra,
39 Cal.App.5th at p. 244.)
In People v. Zaldana (2019) 43 Cal.App.5th 527, 533, review granted
March 18, 2020, S259731, the court agreed with the Vaquera court’s “detailed analysis”
and rejected the Jimenez court’s “cursory reasoning.”
We find Vaquera and Zaldana more persuasive than Jimenez, which did
not address the fact section 667.61, subdivision (b), expressly states an exception for
subdivision (j). (Vaquera, supra, 39 Cal.App.5th at p. 244; Zaldana, supra, 43
Cal.App.5th at pp. 534-535.) Here, Beavers received sufficient notice he was subject to a
25-year-to-life sentence because the information pleaded section 667.61, subdivision (b),
which specifically references the subdivision (j), exception providing for a 25-year-to-life

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term when the victims are under age 14. Further, Beavers has not shown any prejudice
because he does not contend he would have prepared his case any differently.
Beavers relies on Mancebo and Anderson to argue he did not receive fair
notice. We disagree. In Mancebo, the information did not allege the multiple victim
enhancements or its numerical subdivision, but the court “substituted” the allegations.
(Mancebo, supra, 27 Cal.4th at p. 740.) In Anderson, the information did not allege the
enhancements as to the counts in question, but the court instructed on them. (Anderson,
supra, 9 Cal.5th at p. 951.) Unlike in Mancebo and Anderson, here, the information
alleged the two multiple victim aggravating circumstances in compliance with the
pleading requirements by reference to section 667.61, subdivision (b). The fact the
prosecution and the trial court stated the maximum sentence was lower does not alter our
conclusion where the information provided adequate constitutional notice. It is the
statute that matters, not the opinions of the court or prosecutor.
II. Pitchess
Beavers requests we make an independent review of the trial court’s ruling
on his motion to disclose peace officer personnel records. The Attorney General does not
object to our review.
A criminal defendant is entitled to the discovery of confidential police
officer personnel records if the information contained therein is relevant to his ability to
defend against the charge. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538.)
To obtain such records, the defendant must submit an affidavit showing good cause for
the discovery. (Evid. Code, § 1043, subd. (b)(3).) A showing of good cause requires a
defendant seeking Pitchess discovery “to establish . . . a logical link between [a proposed
defense] and the pending charge” and “to articulate how the discovery being sought
would support such a defense or how it would impeach the officer’s version of events.”
(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021.) Discoverable information is

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“limited to instances of officer misconduct related to the misconduct asserted by the
defendant.” (Ibid.)
Under People v. Mooc (2001) 26 Cal.4th 1216, 1229-1232, upon a request
from a defendant, an appellate court may review the sealed transcript of a trial court’s in
camera Pitchess hearing to determine whether the trial court disclosed all relevant
documents. We may review the transcript of the in camera proceeding. (See People v.
Jackson (1996) 13 Cal.4th 1164, 1221, fn. 10.) We review the trial court’s ruling on such
a motion for abuse of discretion. (People v. Samayoa (1997) 15 Cal.4th 795, 827.)
We independently reviewed the sealed transcript of the trial court’s in
camera hearing on the prosecution’s motion and the records. We conclude the trial court
did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.

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