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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[*]

          Superior Court of Alameda County, No. H58965, Hon. Leopoldo E. Dorado, Judge.

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

          Nathan 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.

          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.

          SIMONS, Acting P.J.

         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 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 up beside the Nissan, Ounkeo heard a loud pop from ahead of him, but did not see a gun or a flash.

         In the 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.

         Appellant's 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.[2]

         The day 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 the driver.

         DISCUSSION

         I. Automated License Plate Reader Program

         Appellant 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.

         A. Additional Background

         An 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.

         A 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.

         B. Analysis

         We need not decide whether, as the parties dispute, appellant forfeited this challenge or had a reasonable expectation of privacy in the license plate data.[3] Instead, we conclude that any error in admitting the automated license plate reader report was harmless ...


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