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People v. Gonzalez

California Court of Appeals, First District, Fifth Division

December 5, 2019

The PEOPLE, Plaintiff and Respondent,
v.
Joaquin GONZALEZ, Defendant and Appellant.

         [CERTIFIED FOR PARTIAL PUBLICATION][*]

         [256 Cal.Rptr.3d 326] Superior Court of Alameda County, No. H58965, Hon. Leopoldo E. Dorado, Judge.

Page 1145

         COUNSEL

         Walter K. Pyle, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant.

         Nathan 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.

         Xavier Becerra, Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano and Melissa A Meth, Deputy Attorneys General, for Plaintiff and Respondent.

         OPINION

         SIMONS, Acting P.J.

Page 1146

          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 remaining arguments.

          BACKGROUND

         A jury 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)).

         The 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.[1] 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.

          Wansin 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 ...


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