California Court of Appeals, First District, Fifth Division
FOR PARTIAL PUBLICATION][*]
Cal.Rptr.3d 326] Superior Court of Alameda County, No.
H58965, Hon. Leopoldo E. Dorado, Judge.
K. Pyle, Berkeley, under appointment by the Court of Appeal,
for Defendant and Appellant.
Freed Wessler, Brett Max Kaufman, Jennifer Lynch, Andrew
Crocker, Jennifer S. Granick, San Francisco, Vasudha Talla
and Matthew Cagle for American Civil Liberties Union
Foundation, American Civil Liberties Union Foundation of
Northern California and Electronic Frontier Foundation as
Amici Curiae on behalf of Defendant and Appellant.
Becerra, Attorney General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Donna M. Provenzano and Melissa A
Meth, Deputy Attorneys General, for Plaintiff and Respondent.
Joaquin Gonzalez appeals following his convictions for
assault with a firearm and related crimes. We agree with his
contentions that the trial court erred in admitting
uncertified, unauthenticated records to prove he suffered a
prior felony conviction, and that he is entitled to a remand
to allow the trial court to exercise its newly-granted
discretion regarding a firearm enhancement. We reject his
convicted appellant of assault with a firearm (Pen. Code, �
245, subd. (a)(2)), shooting at an occupied motor vehicle
(id., � 246), and possession of a firearm by a felon
(id., � 29800, subd. (a)(1)). As to the assault
count, the jury found true an allegation that appellant
personally used a [256 Cal.Rptr.3d 327] firearm during the
commission of the offense (Pen. Code, � 12022.5, subd. (a)).
The jury also found true an allegation that appellant had a
prior felony conviction for attempted second degree robbery
(Pen. Code, � 211), which was a serious felony (id.,
� � 667, subd. (a)(1), 1192.7, subd. (c)) and a strike
(id., � � 667, subds. (d)(1) & (e)(1), 1170.12,
subds. (b)(1) & (c)(1)).
evidence at trial was as follows. Around 12:20 a.m. on July
3, 2015, a red Buick with a white trunk and white top merged
abruptly onto a street after exiting the freeway and nearly
collided with a white Nissan. The Nissan was driven by Eli
Ortiz, who honked for a few seconds at the
Buick. The Buick followed closely behind
Ortiz for several streets and then pulled up to the left of
Ortiz at a stop sign. Ortiz saw the Buick’s front passenger
window roll down about six inches and heard a loud popping
noise coming from his left. The Buick then drove away. Ortiz
pulled over to examine his car and found a hole in the
driver’s side door. Officers subsequently removed a bullet
from the driver’s side door.
Ounkeo, a computer forensic examiner with the Alameda County
Sheriff’s Office, witnessed the near-collision when the Buick
came off the freeway. He followed the two cars and used his
cell phone to take a video. The video, which was played for
the jury, showed a red Buick with a white trunk and roof.
When the Buick pulled ...