California Court of Appeals, First District, Fifth Division
FOR PARTIAL PUBLICATION[*]
Superior Court of Alameda County, No. H58965, Hon. Leopoldo
E. Dorado, Judge.
K. Pyle, under appointment by the Court of Appeal, for
Defendant and Appellant.
Freed Wessler, Brett Max Kaufman, Jennifer Lynch, Andrew
Crocker, Jennifer S. Granick, 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.
SIMONS, Acting P.J.
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 remaining
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 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) &
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 up beside the Nissan, Ounkeo heard a
loud pop from ahead of him, but did not see a gun or a flash.
early evening of July 3, Deputy Jennifer Lema of the Alameda
County Sheriff's Office saw appellant driving the Buick.
She arrested him for driving with a suspended license. Law
enforcement found gunshot residue on the interior passenger
window of appellant's car. A search of appellant's
cell phone revealed that a picture of the interior passenger
compartment of the Buick had been taken at 12:33 a.m. on July
3, approximately 15 minutes after Ounkeo took his video.
home was searched and a back license plate with the number
7CHZ518 was found in a closet. This plate was on the Buick in
the video taken by Ounkeo. A report from an automated license
plate reader program revealed two photos of the Buick with
license plate number 7CHZ518, taken on July 2, 2015. When
Deputy Lema arrested appellant on the evening of July 3,
after the shooting, the Buick had different license plates.
According to the DMV records and testimony from a DMV
manager, appellant had been to the DMV some time before noon
on July 3, 2015 and had turned in one license plate bearing
number 7CHZ518, completed a form stating the other plate had
been stolen, and received new license plates. When questioned
about the plates in a May 2016 police interview, appellant
told police one of his license plates was stolen and he got
new plates “[a]bout a week, I think, a couple
days” before his July 2015 arrest.
after the shooting, Ortiz told police it was dark and he did
not get a good look into the Buick, but the driver was a
Latino who had been born in the United States. In December
2015, Ortiz picked appellant out of a photographic lineup as
the person who “reminded me more” of the
perpetrator. He testified at trial that he felt “a
little” pressure to pick someone from the photo lineup,
and he was not 100 percent sure when he picked the
photograph. In court, Ortiz identified appellant as
“resembl[ing]” the Buick driver, but he again was
not 100 percent sure appellant was the driver. Ounkeo
testified that he could not see into the Buick or identify
Automated License Plate Reader Program
contends that the admission of a report generated by an
automatic license plate reader database violated his Fourth
Amendment rights. We find any error harmless.
automated license plate reader program is used by fifty Bay
Area law enforcement agencies. The program uses
cameras-either fixed or mounted on patrol cars-to photograph
the license plate of every car the cameras encounter. The
program reads the license plate numbers and stores the
photographs in a database for one year. Law enforcement
officers can search the database for a specific license plate
number and generate a report showing photographs of that
number and the date, time, and location of the photograph.
database search was conducted for license plate number
7CHZ518 (the license plate shown in Ounkeo's video), and
the report generated shows two photographs of the license
plate on a red car with a white hood, both taken on July 2,
2015. The report was admitted into evidence at trial.
not decide whether, as the parties dispute, appellant
forfeited this challenge or had a reasonable expectation of
privacy in the license plate data. Instead, we conclude that
any error in admitting the automated license plate reader
report was harmless ...