APPEAL from judgments of the Superior Court of Los Angeles County, Charlaine F. Olmedo, Judge. (Los Angeles County Super. Ct. Nos. BA361974, BA336264)
The opinion of the court was delivered by: Willhite, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
The alternative sentencing scheme of the Three Strikes law applies when "a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony [strike] convictions." (§§ 1170.12, subds. (a), (c)(1), italics added; see § 667, subd. (e)(1).)*fn2 In the published portion of this opinion, we hold that a defendant who is convicted of a misdemeanor offense that is sentenced as a felony under section 186.22, subdivision (d), "has been convicted of a felony" within the meaning of the Three Strikes law and is subject to its sentencing scheme if he has one or more prior strikes.
Defendants Michael Rocco and Samuel Cruz were jointly tried with a third defendant, Brittany Benavidez (who was acquitted and is not a party to this appeal), on the charge of premeditated attempted murder (§§ 664/187, subd. (a)). Rocco also was charged with possession of a firearm by a felon (count 2, § 12021, subd. (a)(1)). It was further alleged that, in the commission of the attempted murder, a principal personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d), (c), (b), and (e)(1)) and that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Cruz was alleged to have suffered a prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
Cruz admitted the prior strike allegation. The jury acquitted him of attempted murder. However, by stipulation of the parties, the court had instructed the jury on the lesser related offense of, inter alia, simple assault, a violation of section 240, with the allegation under section 186.22, subdivision (d),that the offense was committed for the benefit of a criminal street gang. The jury convicted Cruz of this lesser related offense and found the section 186.22, subdivision (d) allegation to be true. The court sentenced Cruz under section 186.22, subdivision (d), to three years in state prison. Moreover, based on the three year sentence, the court deemed the assault offense to be a felony, and doubled it under the Three Strikes law, for a term of six years.
In addition, the court found Cruz to be in violation of probation (he was on probation for the strike offense, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)) with a gang enhancement (§ 186.22, subd. (b)(1)(A)) and sentenced him to a consecutive term of four years on that offense, based on one-third the mid-term of three years for the offense plus an additional three years for the gang enhancement.
Cruz appeals from the judgments in his two cases. He contends, first, that the trial court erred by doubling the sentence on his assault conviction (§ 240) under the Three Strikes law, because the conviction was for a misdemeanor offense that was only elevated to a felony at sentencing by the trial court's application of section 186.22, subdivision (d). In the published portion of this opinion, we reject this contention. Cruz also contends that in sentencing him on his probation violation, the trial court erred by imposing the full three-year enhancement under section 186.22, subdivision (b)(1)(C). The Attorney General concedes that the court should have imposed only one-third of the three year enhancement, and in the unpublished portion of our opinion we correct the sentence accordingly.
The jury convicted Rocco of attempted murder and possession of a firearm by a felon, finding the gang and firearm allegations true. The court sentenced Rocco to a term of 44 years to life in state prison. He appeals from the judgment, contending that the trial court erred in (1) admitting medical records and (2) imposing the 10 year enhancement under section 186.22, subdivision (b)(1)(C), because the information did not allege that he personally used or discharged a firearm. We find no reversible error and affirm.
Because appellants do not challenge the sufficiency of the evidence to support the convictions, we do not recount in detail the evidence adduced at trial and instead summarize it as follows.
The prosecution introduced evidence from eyewitnesses who saw a man later identified as Cruz approach the victim, Eli Flores, who was lying on the hood of a car talking on his cellphone. Cruz hit Flores on his shoulder. Another man later identified as Rocco approached Flores at the same time, hit him with a gun, and after Flores fell down, shot him. Cruz and Rocco got into a car driven by a woman later identified as Benavidez, and drove away.
Officers who arrived at the scene saw Flores lying on the ground, with what appeared to several gunshot wounds. Flores was transported to the hospital by ambulance, and he underwent surgery and treatment. The trial court admitted into evidence Flores's hospital records containing statements by the treating physician that Flores had suffered gunshot wounds to his head and buttocks.
Soon after the shooting the police apprehended Rocco and Cruz at a nearby house where Cruz was known to reside. They found Cruz hiding in a crawl space underneath the house and, after he tried to run away, they arrested him.
Expert opinion evidence was introduced that both Rocco and Cruz were members of the Drifters criminal street gang, whose primary activities were committing graffiti, robberies, car thefts, carjackings, narcotics sales, shootings, attempted murders, and murders. The shooting of Flores occurred in an area claimed by the 18th Street gang, rivals of the Drifters.
Rocco proffered no evidence at trial. Cruz testified on his own behalf. He testified that he had been a member of the Drifters for approximately nine or ten years, and that he had known Rocco for a month or two. On the evening of the incident, Cruz was drinking beer at home. His girlfriend, Benavidez, drove him to get more alcohol. Cruz drank an entire bottle of Bacardi Silver and became "really, really intoxicated." Cruz became angry at Benavidez and left to go on a walk. On his walk, he saw Flores lying on a car. Cruz had known Flores since elementary school and Flores had lived with Cruz's family for a period of time. Approximately two weeks earlier, Cruz and Flores had argued over a woman who was dating a mutual friend but who was "messing around." When Cruz saw Flores on the car, his anger ...