People v. Sanchez
| Citation | 193 Cal.App.4th 928,11 Cal. Daily Op. Serv. 3533,123 Cal.Rptr.3d 190 |
| Decision Date | 11 April 2011 |
| Docket Number | No. H035075.,H035075. |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jose Gonzalez SANCHEZ, Defendant and Appellant. |
OPINION TEXT STARTS HERE
Background: Defendant was convicted in the Superior Court, Santa Cruz County, Robert B. Atack, J., of carrying a concealed firearm in a vehicle and bringing a controlled substance into a jail. After defendant pleaded no contest to misdemeanor count of active participation in a criminal street gang, and based on allegation that firearm was loaded and defendant was not listed as the registered owner of the firearm, defendant was committed to state prison to serve a term of seven years and four months. Defendant appealed.
Holdings: The Court of Appeal, Mihara, Acting P.J., held that:
(1) objection to exhibit was timely;
(2) failure to obtain a ruling on objection to exhibit did not result in forfeiture;
(3) certificate stating that there was “no record” that defendant was the registered owner of any firearm was testimonial;
(4) error in admission of certificate was not harmless beyond a reasonable doubt; and
(5) concurrent conviction for bringing a controlled substance into a jail did not render concealed firearm in a vehicle conviction a “wobbler.”
Reversed and remanded.
Syda Kosofsky, San Francisco, Under Appointment by the Sixth District, Appellate Program, for Appellant.
Edmund G. Brown, Jr., Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Martin S. Kaye, Supervising Deputy Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, for Respondent.
Defendant Jose Gonzalez Sanchez was convicted by jury trial of carrying a concealed firearm in a vehicle (Pen.Code, § 12025, subd. (a)(1)) and bringing a controlled substance into a jail (Pen.Code, § 4573). The jury found true allegations that the firearm was loaded and that defendant was “not listed with the California Department of Justice as the registered owner of the firearm.” An allegation that defendant had suffered a prior juvenile adjudication that qualified as a strike was also found true. The jury could not reach a verdict on a felony count of active participation in a criminal street gang (Pen.Code, § 186.22, subd. (a)). After trial, defendant pleaded no contest to a misdemeanor count of active participation in a criminal street gang. He was committed to state prison to serve a term of seven years and four months.
On appeal, he contends that (1) the controlled substance count was not supported by substantial evidence that he voluntarily brought the substance into the jail after his arrest, (2) the trial court prejudicially erred in admitting into evidence a certificate stating that there was “no record” that defendant was the registered owner of any firearm, (3) his juvenile adjudication could not constitutionally be used as a strike, and (4) the trial court erred in failing to award him additional conduct credit under the January 2010 version of Penal Code section 40191 at his 2009 sentencing. We reject all of defendant's contentions but one. We conclude that the trial court prejudicially erred in admitting the certificate into evidence over his Sixth Amendment objection. Consequently, we reverse and remand for possible retrial of the special firearm allegation.
Santa Cruz County Deputy Sheriff John Etheridge was driving along Highway 129 at about 10:00 p.m. on April 17, 2009 when he saw a vehicle quickly turn off the road. Etheridge was concerned that the vehicle might have broken down or “somebody was sick inside the car,” so he turned around and drove back to the vehicle. He pulled in behind the vehicle and shined his spotlight on it. Etheridge saw three men standing outside the vehicle. One of them was defendant, and another was defendant's brother. The third man “looked very tense.” Etheridge got out of his patrol car and said:
Defendant, whose back was to Etheridge, “looked like he tucked something into his waistband” and then he walked toward the vehicle. Etheridge yelled at defendant and his brother to “stop and show me their hands.” They did not stop, and both of them approached the vehicle. Meanwhile, the third man, who “looked really scared,” walked toward the back of Etheridge's patrol car. Defendant got into his vehicle and started “rooting around.” Etheridge yelled at him to “get out of the car.” Defendant got out of the vehicle, walked to its rear bumper and then returned to the vehicle and did more “rooting around.” His activities were near the bottom of the driver's seat. Defendant exited the vehicle again, this time with some paperwork in his hand. Etheridge had not asked defendant for his license or registration.
Etheridge yelled at defendant to “get on the ground,” but defendant did not comply. Defendant's brother tossed something small into the back seat of the car. Etheridge continued to yell at defendant and his brother to “get on the ground.” Eventually, defendant and his brother complied. The third man also got on the ground. Etheridge called for backup. When backup arrived, the three men were handcuffed and placed in separate patrol cars. Defendant was handcuffed with his hands behind him.
Etheridge looked inside the vehicle and saw, in plain sight, “several bullets laying [ sic ] on the floorboard of the car.” He then looked under the driver's seat and “saw the handle of a handgun sticking out.” The gun was a Colt 357 Magnum revolver, which was loaded with six rounds in its chamber. Etheridge could not find a serial number on the revolver. A small pocketknife was in the back seat.
Defendant told the police that he had been the driver of the vehicle, and he acknowledged that he had “illegal stuff” in the vehicle. Defendant was pat searched for weapons and then transported to the county jail and booked. When he was searched at the jail by jail security personnel, the initial search, which was done with his clothes on, disclosed nothing. During the subsequent strip search, a “white bindle” was observed “close to his anus.” Defendant was asked about the bindle, and he “quickly reached around with his right hand between his buttocks, grabbed the white bindle and quickly put it in his mouth attempting to swallow it.” He was told to spit it out, and he did so. The bindle contained about a half gram of cocaine.
Defendant was charged by amended information with actively participating in a criminal street gang (§ 186.22, subd. (a)), carrying a concealed firearm in a vehicle (§ 12025, subd. (a)(1)), and bringing a controlled substance into a jail (§ 4573). The amended information further alleged as to the firearm count that “the firearm and unexpended ammunition were in the immediate possession of, and readily accessible to, the Defendant and that the firearm was not registered to the Defendant.” (§ 12025, subd. (b)(6).) The firearm count was also the subject of a gang enhancement allegation (§ 186.22, subd. (b)(1)). The amended information also alleged that defendant had suffered a prior juvenile adjudication that qualified as a strike (§ 667, subds. (b)-(i)).
The jury returned guilty verdicts on the controlled substance and firearm counts, and it found true allegations “that the firearm was loaded” and that defendant was “not listed with the California Department of Justice as the registered owner of the firearm.” 2 The jury also found true the allegation that defendant had suffered a prior juvenile adjudication for assault with a deadly weapon that qualified as a strike. The jury was unable to reach a verdict on the gang count or the gang allegation. Defendant subsequently pleaded no contest to a misdemeanor gang count, and the gang enhancement allegation was dismissed.
Defendant was sentenced on December 14, 2009. The court denied defendant's motion to strike the prior juvenile adjudication finding, and it imposed a six-year doubled midterm sentence for the controlled substance count and a consecutive doubled one-third the midterm sentence of one year and four months for the firearm count. Defendant was awarded 89 days of custody credit and 44 days of conduct credit under former section 4019. Defendant timely filed a notice of appeal.
A. Controlled Substance Count**
B. The Special Firearm Allegation
During the prosecution's case-in-chief, the following colloquy occurred.
Exhibit 32 is a two-page document. The first page of this document is a letter dated April 22, 2009 from the Department of Justice to the District Attorney. The letter states that it is “in response to a April 21, 2009, request regarding Docket Case Number: F17818,” which is the superior court number of this case. The second page of this document is entitled “CERTIFICATION” and is signed by “SHERRY CARTER, Manager [¶] Custodian of...
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