Summary
In Gonzalez, our high court held that the Scott rule applies when the trial court clearly apprises the parties of the sentence it intends to impose and its reasons, and give the parties the chance to seek " 'clarification or change.' "
Summary of this case from People v. VellaOpinion
A150198
12-05-2019
The PEOPLE, Plaintiff and Respondent, v. Joaquin GONZALEZ, Defendant and Appellant.
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.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I, II, IV, and V.
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.
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. 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.
Ortiz testified through an interpreter.
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.
A video of the interview was played for the jury and transcripts were provided to the jury.
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
See footnote *, ante .
III. Prior Conviction
Appellant contends the trial court erred in admitting uncertified and unauthenticated records to prove his prior conviction. On this issue, we agree with appellant and will reverse the finding. A. Additional Background
A bifurcated jury trial was held on the allegation that appellant suffered a prior strike conviction. Before the trial, the court gave appellant’s counsel "the documents the DA indicates he wants to use," including a reporter’s transcript from a 2004 plea hearing, a 2004 plea form, and a 2004 minute order. The prosecutor represented that the records were printed from the court’s online records system and sought judicial notice of their accuracy and authenticity. Appellant objected, arguing there was no foundation and the documents were not certified copies. The prosecutor responded, "As the Court is aware, we no longer have court files in Alameda County. All of those court files have been scanned and put into the Odyssey system. Asking the Court to take judicial notice of these documents is the same as asking the Court to take judicial notice of the court file that wouldn’t have been certified, but would have been here in court and available for all of us to view."
Although the court stated the documents "have been printed out from our Odyssey system," the court was apparently relying on the prosecutor’s representation.
The court reviewed the records, noting that the name of one of the defendants listed in the 2004 records was an alias of appellant’s, and that the 2004 minute orders used the same "Personal File Number" to identify appellant as in the current case. The court granted the People’s request for judicial notice and the records were provided to the jury. No other evidence was presented on this allegation. The jury found the allegation true.
The court did not grant the request for judicial notice as to a document setting forth probation terms and conditions, because it deemed this document unnecessary.
B. Analysis
Evidence Code section 452, subdivision (d), provides for permissive judicial notice of "[r]ecords of ... any court of this state ...." Section 452.5, subdivision (a), provides that these official records "include any computer-generated official court records, as specified by the Judicial Council, that relate to criminal convictions, when the record is certified by a clerk of the superior court pursuant to Section 69844.5 of the Government Code [providing for certification and submission for entry into a computer system operated by the Department of Justice] at the time of computer entry." No such certification was submitted here.
All undesignated section references are to the Evidence Code.
We do not construe section 452.5, subdivision (a), to provide the exclusive means of submitting computer-generated court records for judicial notice. Indeed, subdivision (b) of the same section does not reference section 452, but nonetheless provides for the admissibility of an electronic copy of a record of conviction: "An official record of conviction certified in accordance with subdivision (a) of Section 1530, or an electronically digitized copy thereof , is admissible under Section 1280 to prove the ... prior conviction ... recorded by the record." (§ 452.5, subd. (b)(1), italics added.) Section 1530, subdivision (a), in turn, provides when a purported copy of a writing is "attested or certified as a correct copy of the writing or entry by a public employee, or a deputy of a public employee, having the legal custody of the writing," the copy is "prima facie evidence of the existence and content of such writing ...." This certification also was not presented here.
An electronically digitized copy must be an exact reproduction of the original and must either "bear[ ] an electronic signature or watermark unique to the entity responsible for certifying the document" or be "transmitted by the clerk of the superior court in a manner showing that the copy was prepared and transmitted by that clerk of the superior court." (§ 452.5, subd. (b)(2).)
"For the purpose of evidence, whenever a copy of a writing is attested or certified, the attestation or certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be." (§ 1531.)
Certification serves to authenticate a copy of a writing: "[U]nder sections 1530 and 452.5, subdivision (b), a properly certified copy of an official court record is a self-authenticated document that is presumptively reliable, and standing alone may be sufficient to prove a prior felony conviction." ( People v. Skiles (2011) 51 Cal.4th 1178, 1186, 126 Cal.Rptr.3d 456, 253 P.3d 546 ( Skiles ).) However, "nothing in section 1530 forbids authentication by another method." ( Skiles , at p. 1187, 126 Cal.Rptr.3d 456, 253 P.3d 546.) " ‘Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.’ (§ 1400.)" ( Skiles , at p. 1187, 126 Cal.Rptr.3d 456, 253 P.3d 546.) "[T]he statutory certification process is a ‘means provided by law’ establishing that the official writing is the writing that the proponent of the evidence claims it is. (§ 1400, subd. (b).)" ( Skiles , at p. 1187, 126 Cal.Rptr.3d 456, 253 P.3d 546.) But "[o]ther evidence may establish that a [purported copy of an official writing] is authentic and reliable. When considered together, the evidence may suffice to prove a prior felony conviction." ( Ibid. ) "For example, a writing can be authenticated by circumstantial evidence and by its contents." ( Ibid. )
"[T]he proponent of a [noncertified] copy of an official writing has the burden of producing evidence of its authenticity. Because a noncertified copy of an official writing does not constitute prima facie evidence of the existence and content of such writing under section 1530, the proponent must present additional authenticating evidence." ( Skiles , supra , 51 Cal.4th at p. 1189, 126 Cal.Rptr.3d 456, 253 P.3d 546 ; see also id. at pp. 1186–1187, 126 Cal.Rptr.3d 456, 253 P.3d 546 ["Since a certified copy of an official writing ‘is prima facie evidence of the existence and content of such writing or entry’ under section 1530, we may infer that a noncertified copy, by itself, is not reliable enough to constitute such prima facie evidence."].)
In Skiles, the prosecution introduced "certified copies of court records in [an] Alabama case," including "a single page of an indictment," as well as a "faxed ... certified copy of the first page of defendant’s Alabama indictment, which apparently had been missing" from the other court records and which was necessary to prove the conviction was a serious felony. ( Skiles , supra , 51 Cal.4th at pp. 1182–1183 & fn. 1, 126 Cal.Rptr.3d 456, 253 P.3d 546.) The Supreme Court concluded the faxed record was not certified "[b]ecause the public official did not examine and compare the faxed copy with the original, with a certificate of its correctness." ( Id. at p. 1186, 126 Cal.Rptr.3d 456, 253 P.3d 546.) However, it considered the certified records and the content of the faxed record, finding the faxed indictment page was "similar to, and consistent with," the certified indictment page "of unquestioned authenticity," in that the count numbering and pagination shown in the two pages was consecutive and the documents showed "the same Alabama court and county, bear the same date, and are certified by the same court clerk." ( Id. at p. 1188, 126 Cal.Rptr.3d 456, 253 P.3d 546.) In addition, the faxed page "relate[d] to the same counts listed in the grand jury’s true bill, another document of unquestioned authenticity." ( Ibid. ) The Supreme Court concluded that this evidence supported "a determination that the [faxed] document ... was an accurate representation of a court document in the same Alabama case and an authentic representation of counts 1 and 2 of the indictment." ( Ibid. )
In this case, there were no certified records to compare with the uncertified conviction records. Indeed, no additional evidence at all was presented on the authenticity of the records.
The People note, as they did below, that the trial court no longer kept physical court files, but instead maintained digital copies on the court’s own electronic system. To be sure, " ‘[j]udicial notice ordinarily may be taken of a court’s own records ....’ " ( People v. Cavanna (1989) 214 Cal.App.3d 1054, 1058, 263 Cal.Rptr. 177.) But the court did not take judicial notice of the digital copies on the court’s electronic system, nor did the court print out the records from this system itself. (See People v. Mendoza (2015) 241 Cal.App.4th 764, 773, fn. 1, 194 Cal.Rptr.3d 273 [taking judicial notice of "online San Bernardino and Riverside Superior Courts’ dockets"].) Although the prosecutor represented that the records were printed from the court’s electronic system, no evidence was introduced on this point. (Cf. People v. Martinez (2000) 22 Cal.4th 106, 112, 120, 91 Cal.Rptr.2d 687, 990 P.2d 563 [where "uncertified computer printouts of criminal history information" were submitted to prove a prior prison term, a district attorney’s office employee testified that, "[s]hortly before testifying, [he] obtained the printout from the Department’s CLETS [California Law Enforcement Telecommunications System] computer system"].) The People also point to the contents of the records as evidence of their authenticity. Our Supreme Court has indicated that the contents of uncertified records alone cannot be sufficient to support a finding of authenticity. ( Skiles, supra, 51 Cal.4th at pp. 1186–1187, 126 Cal.Rptr.3d 456, 253 P.3d 546 ["Since a certified copy of an official writing ‘is prima facie evidence of the existence and content of such writing or entry’ under section 1530, we may infer that a noncertified copy, by itself, is not reliable enough to constitute such prima facie evidence."].) Even assuming otherwise, the contents do not support such a finding here. That the records displayed Alameda County Superior Court file stamps and a "PFN" number that was the same one used in appellant’s current case is not sufficient, standing alone, to satisfy the prosecutor’s burden of establishing the documents were authentic conviction records for the purpose of proving appellant suffered a prior conviction. (See People v. Goldsmith (2014) 59 Cal.4th 258, 267, 172 Cal.Rptr.3d 637, 326 P.3d 239 ["The purpose of the evidence will determine what must be shown for authentication, which may vary from case to case."].)
We conclude the trial court erred in admitting the uncertified, unauthenticated exhibits as proof that appellant suffered a prior conviction. As these exhibits were the only evidence presented to prove this allegation, we will reverse the jury’s finding for insufficient evidence. "It is well settled that if the jury’s finding on a strike allegation is reversed on appeal for insufficient evidence, the allegation may be retried to a new jury." ( People v. Anderson (2009) 47 Cal.4th 92, 102, 97 Cal.Rptr.3d 77, 211 P.3d 584.) Accordingly, we will remand to permit the People to retry the allegation before a new jury.
See footnote *, ante .
DISPOSITION
The finding that appellant suffered a prior felony conviction and the sentence for the firearm enhancement are reversed, and the matter is remanded for proceedings not inconsistent with this opinion. In all other respects, the judgment is affirmed.
We concur.
NEEDHAM, J.
BURNS, J.