PEOPLE v. GALLARDO

Appellant’s Petition for Review

Cal.December 17, 2015

$231260 SUPREME COURTNO. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE, APPELLATE COURT NO. B257357 Plaintiff and Respondent, y SUPERIOR COURTNO. VA126705 SUPREME COURT SULMA MARILYN GALLARDO, FILED Defendant and Appellant. DEC 17 2015 Frank A. McGuire Clerk Deputy APPEAL FROM THE SUPERIOR COURTOF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES Honorable ThomasI. McKnew,Jr., Judge PETITION FOR REVIEW OF THE UNPUBLISHED OPINION OF THE SECOND APPELLATE DISTRICT, DIVISION SIX Christian C. Buckley, SBN 216998 Buckley & Buckley 9921 Carmel Mountain Rd. #355 San Diego, CA 92129 (858) 538-6054 ccbuckley75@gmail.com Attorney for Appellant TOPICAL INDEX OF CONTENTS PETITION FOR REVIEW........cccscccsssssssssssssesscssetssssssaresssssarecessessesceseccecs, 1 INTRODUCTION...eesssssssesssssescssssssessssssssusessesssssassssssssussrsseseeesseseeccese. 2 PETITION FOR REHEARING.........ccsesscsssssssscsssesssssecsscssssssstesescusccesescesse. 5 ISSUES PRESENTED.........scessessesessesssssssssscsnscssssssssucsusssssecsesssseseeeseeeseesc. 6 I. Is California’s procedure for determining whether a prior conviction qualifies as a strike, insofar as it is based on judicial factfinding beyond the elements of the actual prior conviction, incompatible with the United States Supreme Court’s view of the Sixth Amendment right to a jury trial as articulated in Descamps? Il. If full review is not granted on Issue I, appellant requests that this Court grant review and transfer the case back to the Court of Appeal with directions to reconsiderits analysis in light of Marin and Denard which were bothissued after this case was submitted for an opinion. IH. Under Crawford, may a trial court rely on a preliminary hearing transcript to make a determination of whether the conduct underlying a prior conviction constituted a strike without an actual showingofwitness unavailability? STATEMENT OF THE CASE AND FACTS......cccsessessesscssssesssesecosscseecce. 7 ARGUMENTS, POINTS, AND AUTHORITIES......-cccccccccccsescessccecoseeees. 7 I. CALIFORNIA’S PROCEDURE FOR DETERMINING WHETHER A PRIOR CONVICTION QUALIFIES AS A STRIKE, WHICH ALLOWS JUDICIAL FACTFINDING BEYOND THE ELEMENTSOF THE ACTUAL PRIOR CONVICTION,IS INCOMPATIBLE WITH THE UNITED STATES SUPREME COURT’S VIEW OF THE SIXTH AMENDMENTRIGHT TO A JURY TRIAL AS ARTICULATED IN DESCAMPS...0.....c.csccccssssssestessessssssecsescseeeeeeeeees. 7 MW UW “ II. If FULL REVIEW IS NOT GRANTED ONISSUE I, APPELLANT REQUESTS THAT THIS COURT GRANT REVIEW AND TRANSFER THE CASE BACK TO THE COURT OF APPEAL WITH DIRECTIONS TO RECONSIDERITS ANALYSIS IN LIGHT OF MARINAND DENARD WHICH WERE BOTH ISSUED AFTER THIS CASE WAS SUBMITTED FOR AN OPINION..0...ccceesseeceeessseseseaescsesescsseseessseesceusssscssscatevscars 15 Ill. UNDER CRAWFORD, A TRIAL COURT IS PRECLUDED FROM RELYING ON A PRELIMINARY HEARING TRANSCRIPT TO MAKE A DETERMINATION OF WHETHER THE CONDUCT UNDERLYING A PRIOR CONVICTION CONSTITUTED A STRIKE WITHOUT AN ACTUAL SHOWING OF WITNESS UNAVAILABILITY ooo. ceteseesesesessssesesessecessesecsecsesscsusevacsesceaees 16 CONCLUSIONoooeececesescsescescesessssessssescsescessecsssssessecsecscesscesecassesseeeseas 19 CERTIFICATE OF WORD COUNTuu.ccceeccsssesesesssteseeseeesssesssssstasenees 20 APPENDIX A - OPINION...0....sccccsssessssesessesssesescsesscsestesssesscsssssesscsnseanes 21 PROOF OF SERVICE..0.....eceeeesseesseseeseeesesesssssssceseseeseeaeestesesscsssesenesenes 22 ii TABLE OF AUTHORITIES Cases Crawford v. Washington (2004) 541 U.S. 36.....ccccccccccsssessscsecceseeseccesers 5,17 Descamps v. U.S. (2013) 570 U.S.ecececeecccessssscssssescessssscsssesccnseeccesens 2,8 Giles v. California (2008) 554 U.S. 353 ..ccccecccscccssescscssssesessecseressececeateceaces 18 Howard (1987) 190 Cal.App.3d 41 .........cccccccccecscscssssssssssccsscesssececesesseaceseenes 5 Ohio v. Roberts (1980) 448 U.S. 56 ......cccccccssssscessssssssscssssecsceessseseesesaseneaees 17 People v. Banuelos (2005) 130 Cal.App.4th 601 .....cccccccsccccsssssseseceseceeees 4 People v. Davis (1996) 42 CalApp.4th 806 .........ccccccscssscsssscsscsssssessaeeees 4 People v. Denard (B253464) 2015 Cal.App.LEXIS 1080.00.00...cee. 2,9 People v. Howard (1987) 190 Cal.App.3d 41 oo... cccccessescssssccsssssssececeetenes 15 People v. Marin (2015) 240 CalApp.4th 1344. 00...cccccsceeseeseeeeeeeees 2,8 People v. Reed (1996) 13 Cal4th 217... ccccscsccsssssssessesccsecssssssssssseesees 5, 16 People v. Saez (2015) 237 Cal.App.4th 1177 ...ccccccsccecscscsscscsscsecssseecees 2,7 People v. Wilson (2013) 219 CalApp.4th 500.........cccccccscsssscsesscssececeeees 3 United States v. Marcia-Acosta (9th Cir. 2015) 780 F.3d 1244 woe 14 Other California Rules of Court Ur1,19 B.S0O(D)L) ones eceseeeeseccecseeseesesesesesseessesseseeseeeseesecscsessusccssssacssescssvescaceasaces 5 B.S504(D)(B) oo. eceseecessecseeseeeeeeeeecsssesseessnsesessseseseecseescsssescsucacsacsssecnsaecacasaces 5 B.SO4(D)(A) ocececcecsesssssseteceesrsstcessessesseesesssseseessesesatssevscsecesssssecauscacsanenes 2,5 8.5280) oo... eeesesssscessseeecesceeseneseessscsssecscecseesseseaecsucecsssssteescescsacsssscsesaecasecentes 5 US Const. Sixth Amendment.0.0........ccccccsscscseeesessescssscssssssessesscscseaceesctecaeess 7 iil IN THE SUPREME COURT OF THESTATE OF CALIFORNIA THE PEOPLE, APPELLATE COURTNO. B257357 Plaintiff and Respondent, SUPERIOR COURT NO. v. VA126705 SULMA MARILYN GALLARDO, Defendant and Appellant. APPEAL FROM THE SUPERIOR COURTOF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES Honorable Thomas I. McKnew,Jr., Judge PETITION FOR REVIEW OF THE UNPUBLISHED OPINION OF THE SECOND APPELLATEDISTRICT, DIVISION SIX TO THE HONORABLE CHIEF JUSTICE AND THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: PETITION FOR REVIEW Pursuant to California Rules of Court, rule 8.500(b)(1)!, appellant, Sulma Marilyn Gallardo, respectfully petitions this Court for review of the unpublished decision of the Court of Appeal, Second Appellate District, Division Six (per Gilbert, P.J.) filed November 16, 2015. The Court of St it es oo g e ! All further rule and section references are to the California Rules of Court and California Penal Code unless otherwise noted. S o R E E R N A er Appeal Opinion (referred to herein as “OPN”) is attached hereto as Appendix A. (Rule 8.504(b)(4).) INTRODUCTION, This case directly implicates the ongoing debate amongst California’s Courts of Appeal regarding the impact of Descamps v. US. (2013) 570 U.S. (Descamps) on California’s procedure for determining whether a prior conviction qualifies as a strike. In both published and unpublished opinions, multiple courts have reached varying conclusions. This Court has yet to directly address the question. Two recent published decisions by the Second Appellate District, People v. Marin (2015) 240 Cal.App.4th 1344 (Div 4) and People v. Denard, B253464, issued December 3, 3015 (Div 1), concluded that the Sixth Amendmentright to a jury trial as articulated in Descamps precludes any judicial factfinding which looks beyond the elements of the crime to the record of conviction for purposes of making a strike finding based on the nature of the defendant’s conduct. These opinions followed on the heels of People v. Saez (2015) 237 Cal.App.4th 1177 (First Appellate District, Div 1) which reached the same conclusion and People v. Wilson ? This Introduction is included pursuantto rule 8.504(b)(1). TED SS ER SE S P R U E R E I S E S e e R E P R E (2013) 219 Cal.App.4th 500 (Sixth Appellate District) which nearly reached the same conclusion twoyearsearlier. Unfortunately the Court of Appeal herein did not follow in the footsteps of the above opinions, suggesting that the issue is not settled. Appellant asserts that this case presents an ideal fact pattern upon which this Court can provide the necessary definitive direction. Here, the prior conviction at issue was appellant’s entry of a no contest plea in 2005 to one generic count of violating section “245(a)(1).” To prove that the prior conviction constituted a strike, the prosecution offered the minute order from the plea hearing and transcript of the preliminary hearing that was held a year before the plea. (ACT 1-35; 3RT 1804-1808.) The minute order reflected a plea to one count of violating section “245(A)(1)” with no additional factual basis or information on the type of assault (e.g., “likely GBI” or “deadly weapon”) admitted. (ACT 1-4.) Appellant was placed on probation for the offense and no other documentation was provided to the trial court. (ACT 2-3.) Because the minute order did not constitute substantial evidence to prove that the generically defined assault constituted a strike (People v. Banuelos (2005) > Clerk’s, Augmented Clerk’s, Reporter’s and Augmented Reporter’s Transcripts are designated “CT,” “ACT,” “RT,” and “ART” respectively with numerical volumereferences. 130 Cal.App.4th 601, 606; People v. Davis (1996) 42 Cal.App.4th 806, 814), the prosecution also offered the transcript from the preliminary hearing wherein the victim testified that appellant pointed a knife at him, punched him while holding the knife, and potentially nicked him with the knife. (ACT 12-15.) At the close of the preliminary hearing the court made a finding that there wassufficient evidence to hold appellant on the generic charge of violating section “245(A)(1).” (ACT 34.) The court made no factual findings regarding the type of assault or whether appellant personally used a weapon. (ACT34.) Atthe hearing onthe prior held herein, defense counsel objected to the admission of the preliminary hearing transcript on hearsay and foundation groundsandto the court using the testimony to support a finding that appellant’s prior conviction qualified as a strike. (3RT 1808.) The court overruled the objections and made a new disputed factualfinding that the generic assault admitted by appellant in 2005 constituted a strike based on the 2004 preliminary hearing transcript testimony regarding the knife. (3RT 1808.) Under Marin and Denard, Divisions Four and One of the Second Appellate District would have reversed the prior strike finding. However, Division Six of the same Second Appellate District refused to consider Marin and instead held that the traditional form of judicial factfinding undertaken herein is still valid under state and federal law. Asfully set forth herein, full review is required in this case to secure uniformity in decisions between appellate courts, settle the important question of law presented in these cases, and to correct the denial of appellant’s Sixth Amendment right to a jury trial on the prior allegation. (Rule 8.500(b)(1).) In the alternative, appellant requests that this Court grant review and transfer the case back to the Court of Appeal with directions to reconsider its analysis in light of Marin and Denard which were both issued after this case was submitted for an opinion. (Rules 8.500(b)(4), 8.528(d); People v. Howard (1987) 190 Cal.App.3d 41, 45.) PETITION FOR REHEARING Appellant filed a Petition for Rehearing specifically requesting the Court ofAppeal: 1. Address the analysis and holding of Marin, which was issued after this appeal was submitted for opinion but before the opinion wasissued. 2. Address appellant’s argument that this Court’s holding in People v. Reed (1996) 13 Cal.4th 217, 220 (witnesses unavailability for prior’s trials) is no longer valid under Crawford v. Washington (2004) 541 US.36. The petition was summarily denied on December 2, 2015. (Rules 8.500(c)(2) and 8.504(b)(3).) Both issues are raised for review. ISSUES PRESENTED FOR REVIEW Is California’s procedure for determining whether a prior conviction qualifies as a strike, insofar asit is based on judicial factfinding beyond the elements of the actual prior conviction, incompatible with the United States Supreme Court’s view of the Sixth Amendmentright to a jury trial as articulated in Descamps? II. If full review is not granted on Issue I, appellant requests that this Court grant review and transfer the case back to the Court of Appeal with directions to reconsider its analysis in light of Marin and Denard which were both issued after this case was submitted for an opinion. YI. Under Crawford, may a trial court rely on a preliminary hearing transcript to make a determination of whether the conduct underlying a prior conviction constituted a strike without an actual showing of witness unavailability? STATEMENTOF THE CASE AND FACTS For purposes ofthis petition only, appellant adopts the procedural history and facts set forth in the court ofappeal opinion. (OPN 1-3.) ARGUMENTSAND POINTS AND AUTHORITIES 1. CALIFORNIA’S PROCEDURE FOR DETERMINING WHETHER A PRIOR CONVICTION QUALIFIES AS A STRIKE, WHICH ALLOWS JUDICIAL FACTFINDING BEYOND THE ELEMENTS OF THE ACTUAL PRIOR CONVICTION, IS INCOMPATIBLE WITH THE UNITED STATES SUPREME COURT’S VIEW OF THE SIXTH AMENDMENTRIGHTTO A JURY TRIAL AS ARTICULATEDIN DESCAMPS. In People v. Saez (2015) 237 Cal.App.4th 1177 (Saez), the Court of Appeal explained the conflict between the opinions of this Court and the United States Supreme Court “onthe limits of a sentencing court’s ability to review the record of a prior conviction in determining whether the conviction can be usedto increase a sentence undera statutory sentencing- enhancing scheme,” and held California’s procedure violated the Sixth Amendment under the principles recognized in Descamps. (Saez, supra, 237 Cal.App.4th at p. 1195.) In so holding, Saez concluded that “while Descamps did not explicitly overrule McGee,...this much is clear: when the elements of a e B A E R h o t prior conviction do not necessarily establish that it is a serious or violent felony under California law (and, thus,a strike), the court may not underthe Sixth Amendment ‘“make a disputed” determination “about what the defendant and state judge must have understood as the factual basis of the prior plea,” or whatthe jury in a prior trial must have accepted as the theory of the crime.’ (Descamps, supra, 570 U.S. at p.__ [133 S.Ct. at p. 2288].)” (Saez, supra, at pp. 1207-1208.)* On October 7, 2015, Division Four of the Second Appellate District issued a published opinion in People v. Marin (2015) 240 Cal.App.4th 1344.° That opinion heldas follows: The California procedure for determining whether prior convictions qualify as strikes, insofar as it is based on judicial factfinding beyond the elements of the offense, is incompatible with the United States Supreme Court's view of the Sixth Amendmentright to a jury trial as articulated in Descamps. In short, such judicial factfinding, which looks beyond the elements of the crime to the record of conviction to determine what conduct “realistically” underlaid the conviction, violates the Sixth Amendmentright to a jury trial. ...the scope of judicial factfinding that is incompatible with the right to a jury trial is variously described in Descamps as the following: (1) “‘a disputed’ determination ‘about what the defendant and state judge must have understood as the factual * No petition for review wasfiled in the case and the remittitur issued on August20, 2015. >No petition for review wasfiled in the case and the remittitur issued on December9, 2015. basis of the prior plea,’ or what the jury in a priortrial must have accepted as the theory of the crime”(citing the plurality opinion in Shepard, supra, 544 U. S. at p. 25, and Justice Thomas's concurrence that such a finding would be “‘constitutional error, no doubt’” (id. at p. 28)); (2) a finding concerning “what trial showed, or a plea proceeding revealed, about the defendant's underlying conduct”; (3) a finding about “amplifying but legally extraneous circumstances”; (4) inferences from a plea transcript based on “whatever [a defendant] says, or fails tosay, about superfluous facts”; and (5) the trial court's “own finding about a non-elementalfact.” In its various wordings, the court's language conveys that judicial factfinding beyond the elements of the defendant's prior conviction—so called “superfluous facts” or “non-elemental facts”—is generally constitutionally impermissible. (/bid. at pp. 1363-1364; internal citations omitted.) Likewise, on December 3, 2015, the Second Appellate District Court, Division One, issued a published opinion in People v. Denard (B253464, issued December 3, 3015) 2015 Cal.App.LEXIS 1080, agreeing with the fundamental holdings of Saez and Marin. Therein the court of appealstated: The United States Supreme Court has held that the Sixth and Fourteenth Amendments require that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” [Citations.] The Supreme Court’s most recent explication of this principle came in Descamps, in which an eight-justice majority concluded that serious Sixth Amendment concerns are implicated by a sentencing “court’s finding of a predicate offense . . . [that goes] beyond merely identifying a prior conviction. Those concerns . . . counsel against allowing a sentencing court to ‘make a disputed’ determination ‘about whatthe defendant and state judge must have understood as the factual basis of the prior plea,’ or what the jury in a prior trial must have accepted as the theory of the crime.” (Descamps, supra, 133 S.Ct. at p. 2288; Shepard v. United States (2005) 544 U.S. 13, 25 [125 S.Ct. 1254].) [Pp] ....two appellate courts issued decisions in which they considered the impact of the United States Supreme Court’s holding in Descamps on the California procedure for proof of prior convictions under McGee: Saez, supra, 237 Cal.App.4th 1177 (First Dist., Div. One) and People v. Marin (2015) 240 Cal.App.4th 1344 (Second Dist., Div. Four) (Marin). In Saez, the court noted the conflict between the California and United States Supreme Courts “on the limits of a sentencing court’s ability to review the record of a prior conviction in determining whether the conviction can be used to increase a sentence undera statutory sentencing-enhancing scheme,” and held that the trial court’s reliance on the Wisconsin record of conviction was proper under McGee but violated the Sixth Amendment under the principles recognized in Descamps. (Saez, supra, 237 Cal.App.4th at p. 1195; Marin, supra, 240 Cal.App.4th at p. 1348.)... Marin went a step further, expressly holding that “under Descamps, judicial factfinding authorized by [McGee], going beyond the elements of the crime to ‘ascertain whether that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law’ ([McGee, supra, 38 Cal.4th] at p. 706), violates the Sixth Amendmentright to a jury trial.” (Marin, supra, 240 Cal.App.4th at p. 1348.) [P] We agree with the conclusions of the courts in Saez and Marin... (Slip Opinion pp. 17-22.) This Court has yet to adopt or reject the Saez and Marin holdings, but it is clear that the trial court herein did precisely what Saez and Marin 10 held is now precluded — it made a disputed factual determination regarding whatthejudge and appellant must have understood the form ofassault to be whenit was admitted. Asdetailed in the Introduction, the only actual record of appellant’s plea that was offered in this case was a minute orderthat reflected a plea to one generic count of violating section “245(A)(1)” and did not include any factual basis for the plea or any additional information on the type ofthe assault. (ACT 1-4.) Because this document was totally insufficient to establish the nature of appellant’s assault plea, the prosecution offered the transcript from the preliminary hearing held a year before the plea. (ACT 13-15.) At the close of that preliminary hearing the court only made a finding that there was sufficient evidence to hold appellant on the generic charge of violating section “245(A)(1).” (ACT 34.) The court made no factual findings regarding the type of assault or whether appellant personally used a weapon. (ACT 34.) Based solely on the above record, and over defense objection, the trial court herein made a disputed factual determination that the alleged facts of the charged assault included the use of a knife and therefore, regardless of the offense that was actually plead to, appellant’s generic prior assault constituted a strike offense. 1] In short, the trial court here did not determine what offense was admitted, the trial court determined what offense it thought appellant committed. Under Descamps, Saez, Marin, and Denard, the trial court here was precluded from making this disputed factual determination based on testimony adduced during a preliminary hearing regarding what type of assault appellant committed. The Court of Appeal refused to grant rehearing to consider Marin and rejected all of the above analysis. Instead, the court generally summarized Descamps and Saez and rejected appellant’s arguments exclusively on a determination that because section 245 is a “divisible statute” judicial factfinding, of any variety,is still allowed: After McGee, the United States Supreme Court decided Descamps v. United States (2013) _ U.S. _ [186 L.Ed.2d 438] (Descamps). Descampsinvolves sentence enhancements under the federal Armed Career Criminal Act (ACCA). (18 U.S.C. § 924(e).) The ACCA provides for sentence enhancements for federal defendants who have prior convictions for certain felonies, including burglary. To determine whether a prior conviction constitutes one of those crimes, courts use the so-called “categorical approach." They compare the statutory elements of the crime constituting the prior conviction with the elements of a "generic crime"; that is, the offense as it is commonly understood. The defendant had prior California convictions for burglary. The generic crime of burglary has unlawful entry as an element. But the California statutory elements for burglary do not include unlawful entry. (§ 459.) Does the defendant have the right to a jury trial on the question whether his prior burglaries involved an unlawful entry? In deciding that question, Descamps distinguished two types of statutes. One type ofstatute is a so-called "divisible statute." That kind of statute sets out one or more elements of the offense in the 12 alternative. If one alternative matches an element in the generic offense but the other alternative does not, the court may consult "a limited class of documents, such as indictments and jury instructions," to determine which alternative formed the basis of the prior conviction. (Descamps, supra, _U.S. at p. _ [186 L.Ed.2dat p. 449].) Then the court can apply the categorical approach by comparing the elements of the prior conviction with the elements of the generic crime. (/bid.) The secondtype ofstatute is a so-called "indivisible statute"; thatis, a statute that does not contain alternative elements. A problem arises when an indivisible statute criminalizes a broader scope of conduct than the generic offense. Thus, for example, California's burglary statute, by not having unlawful entry as an element, criminalizes more conduct than a generic burglary. The court held that a sentencing court is not authorized to go beyond the elements of the prior conviction to make a finding of fact that the defendant's conduct constituted a generic crime; for example, that he made the unlawful entry necessary for generic burglary. The court stated: "The Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting elements of the offense—as distinct from amplifying but legally extraneous circumstances. [Citation.] Similarly, ... when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense's elements ...." (Descamps, supra, _ U.S. at p. _ [186 L.Ed.2d at p. 457].) The recent case ofPeople v. Saez (2015) 237 Cal.-App.4th 1177, like Descamps, involved an indivisible statute. In Saez, the defendant had suffered prior convictions in Wisconsin. The prior convictions were under statutes that criminalized a broader scope of conduct than similar California statutes. Saez held that under Descamps the sentencing court cannot use the record of conviction to make a finding of fact that the defendant's conduct would have beena strike in California. (Saez, at pp. 1207-1208.) This case is different. Here, we are concerned with a "divisible statute." The elements of the offense are stated in the alternative. Under Descamps, the sentencing court may consult extrinsic 13 documents to determine which alternative formed the basis of the prior conviction. A jury determination is not required. (OPN 8-10.) The above analysis is fundamentally flawed because the question is not what type of statute is at issue but rather what type of factfinding is allowed. Whatis nowclear is that while a trial court is permitted to look at the record of a prior conviction to determine the actual elements of the actual conviction — it is not permitted to make a new factual determination based on the conduct in the case to establish that the criminal behavior constitutes a strike. Either proof of the conviction standing alone establishes it was a strike — or it is not a strike. Here, the preliminary hearing transcript contained nothing more than testimony about appellant’s conduct. No evidence from the plea colloquy or written form that occurred a year later was admitted to demonstrate that appellant later admitted the truth of any of the knife allegations. Therefore, the preliminary hearing transcript merely presented some information as to what appellant’s conduct might have been, but nothing about what he actually pled guilty to. (See, e.g., United States v. Marcia-Acosta (9th Cir. 2015) 780 F.3d 1244, 1255 [“[T]he Shepard documents in this case at most suggest that [defendant] committed the crime of intentional aggravated assault. They do not show that Marcia-Acosta was convicted of that crime.”’].) 14 This Court should grant review to resolve the above conflict and lingering divide between Descamps and McGee and to ensure that other courts of appeal do not similarly reject the now published California authority on the issue based on an improper legal analysis. Il. IF FULL REVIEW IS NOT GRANTED ON ISSUE I, APPELLANT REQUESTS THAT THIS COURT GRANT REVIEW AND TRANSFER THE CASE BACK TO THE COURT OF APPEAL WITH DIRECTIONS TO RECONSIDER ITS ANALYSIS IN LIGHT OF MARIN AND DENARD WHICH WERE BOTH ISSUED AFTER THIS CASE WAS SUBMITTED FOR AN OPINION. This case was submitted for opinion on September 10, 2015. People v. Marin (2015) 240 Cal.App.4th 1344 was issued by Division Four of the Second Appellate District on October 7, 2015, review was not sought, and Marin is nowfinal. The opinion herein was issued on November 16, 2015, and appellant’s petition for rehearing to specifically address Marin was denied. On December3, 2015, the Second Appellate District Court, Division One, issued People v. Denard (B253464) 2015 Cal.App.LEXIS 1080. If this Court does not grant full review, appellant requests that this Court grant review and transfer the case back to the Court of Appeal with directions to reconsider its analysis in light of Marin and Denard. (Rules 8.500(b)(4), 8.528(d); People v. Howard (1987) 190 Cal.App.3d 41, 45.) 15 It is clear that if appellant’s case had been randomly assigned to Division Four or One of the Second Appellant District it would have been reversed. By chance it was assigned to Division Six and has been upheld. This is a fundamentally arbitrary and capricious outcome that should at a minimum receive further analysis from Division Six. HI. UNDER CRAWFORD, A TRIAL COURTIS PRECLUDED FROM RELYING ON A PRELIMINARY HEARING TRANSCRIPT TO MAKE A DETERMINATION OF WHETHER THE CONDUCT UNDERLYING A_ PRIOR CONVICTION CONSTITUTED A STRIKE WITHOUT AN ACTUAL SHOWING OF WITNESS UNAVAILABILITY. In People v. Reed (1996) 13 Cal.4th 217, 220 (Reed), this Court held that a witness from a preliminary hearing is unavailable for purposesoftrial on a prior because the prosecution is judicially precluded from calling witnesses to prove the existence of the prior. This Court explained as follows: [D]efendant contends the preliminary hearing transcript excerpts do not come within this hearsay exception because the witnesses, Mr. and Mrs. Martinez, were not shown to be unavailable. We disagree: the witnesses were legally unavailable because, under the rule announced in People v. Guerrero, supra, 44 Cal. 3d 343, the prosecution was precluded from presenting any evidence outside the record of conviction to prove the circumstances of the prior crime. By holding in Guerrero that the trier of fact may look to the entire record of conviction “but no further” [citation], we 16 precluded the prosecution from calling live witnesses to the criminal acts in the prior case....Under Guerrero, the prosecution was absolutely barred from presenting such evidence. The witnesses’ live testimony was thus unavailable as a matter of law. (Reed at 225-227.) Appellant asserts that the above rationale is no longer valid because Reed predated Crawford v. Washington (2004) 541 U.S. 36 (“Crawford”) and has not been reconsidered by this Court. As explained below, under Crawford and its progeny the Reed judicially created rule of unavailability can no longerbevalid. A witness is considered “unavailable” for purposes of the constitutional right of confrontation when the prosecution has made a good- faith effort to secure his presenceattrial. (See, e.g., Ohio v. Roberts (1980) 448 U.S. 56, 74 (Ohio), overruled on other grounds by Crawfordat p. 36.) Asthe Supreme Court explained in Ohio: “The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness’ intervening death), ‘good faith’ demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. ‘The lengths to which the prosecution must go to produce a witness...is a question of reasonableness.’ [Citation.] The ultimate question is whether the witnessis unavailable despite good-faith efforts undertaken prior to trial to locate and 17 present that witness. As with other evidentiary proponents, the prosecution bears the burden of establishing this predicate.” (Ohio, supra, at pp. 74-75.) While the existence of a privilege has been held to create unavailability if properly asserted (Crawford involved the marital privilege), ajudicially fashioned evidentiary rule that creates unavailability through an absolute preclusion to the right to call witnesses cannot pass constitutional muster. The United States Supreme Court, following Crawford, hasbeen clear that the Sixth Amendment precludes judicially created rules that circumventthe right to confrontation: [T]he guarantee of confrontation is no guaranteeat all if it is subject to whatever exceptions courts from time to time consider “fair.” It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values. The Sixth Amendmentseeks fairness indeed--but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen. It “does not suggest any open- ended exceptions from the confrontation requirement to be developed by the courts.” ([Citation.} Giles v. California (2008) 554 U.S. 353, 375 [171 L. Ed. 2d 488, 128 S. Ct. 2678] (Giles). In Giles, the United States Supreme Court overturned an attempt, like the one in Reed, to judicially limit the right to confrontation beyond what the framers intended. This Court had expanded the rule of forfeiture by wrongdoing, which fundamentally involves unavailability, to extinguish 18 confrontation claims regardless of the wrongdoer’s motivation. The Supreme Court overturned this Court’s decision and clarified that for forfeiture by wrongdoing to apply, the wrongdoer’s actions must have been “designed to prevent the witness from testifying.” (Giles at pp. 353-369.) Giles is instructive because it showsthat a court is not free to fashion whatever unavailability rules it deems reasonable. Instead, it is only the exceptions contemplated by the framers that can stand. Here, like in Giles, the Reed rule cannot be used circumvent a defendant’s right to confrontation by precluding a witness from testifying. Assuch, it is apparent that Reed is no longer valid under Crawford and that an actual showing of unavailability must be made. Appellant requests that this Court grant review to addressthis issue. CONCLUSION For the above stated reasons and pursuant to rule 8.500, petitioner requests that this Petition for Review be granted. Respectfully submitted, WM Christian C. Buckley, Esq. 19 CERTIFICATE OF WORD COUNT COMPUTATION Cal. Rules of Court, rule 8.204(c)(1) The text of this Petition consists of 4,424 words as counted by the Microsoft Word Processing Program used to prepare this document. AE Christian C. Buckley Attorney for Appellant Dated: December 15, 2015 20 Appendix A Court of Appeal Opinion {Included in Printed Original and Court Copies Only] 21 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citingor relying on opinionsnotcertified for publication or ordered published, except as Specified by rule 8.1115(b). This opinion has not beencertified for publication or ordered published for purposes ofrule 8.1 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION SIX THE PEOPLE, 2d Crim. No. B257357 (Super. Ct. No. VA126705-01) Plaintiff and Respondent, (Los Angeles County) COURT OF APPEAL — SECOND DIST. . FILED SULMA MARILYN GALLARDO, Nov 16, 2015 Defendant and Appellant. JOSEPH A. LANE,Clerk Jterry Deputy Clerk A jury found Sulma Marilyn Gallardo guilty ofrobbery (Pen. Code, § 211), being an accessory after the fact (§ 32), and transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)).' The jury also foundtrue that a principal was armed with a firearm during the commission of the robbery. (§ 12022, subd. (a)(1).) The trial court found she suffered a prior conviction within the meaningofthe three strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), and oneprior serious felony conviction (§ 667, subd.(a)). Wereverse the accessory conviction (§ 32) becauseit is based on the same facts as the robbery conviction. In all other respects, we affirm. ’ All statutory references are to the Penal Code unless otherwisestated. FACTS David Narvez worked for a check cashing companydelivering cashtoits various establishments. On September 14, 2012, at approximately 10:00 a.m., Narvez withdrew $190,000 in cash from a bank, and drove south along Long Beach Boulevard. A pickuptruck with nolicense plates cut in front of him and came to an abrupt stop. A Chevrolet Suburban struck Narvez from behind, blocking him in. A "Black man"got out of the Suburban and broke the passenger window ofNarvez's vehicle with a hammer. The manpointed a handgunat Narvez andsaid, "[G[ive me the fucking money you motherfucker before I kill you." Narvez gave the man two bagscontaininga total of $66,000. The man returned to the Suburbanand the pickup truck left the scene. Narvez called 911. As Narvez wasspeaking to the 911 operator, an unidentified man in the background told Narvez the license plate numberofthe Suburban and that three Black men and one woman hadbeen involved. Narvez relayed the information to the operator. The man left while Narvez wasstill talking to the operator. Hedid not identify himself or leave any contact information. On September 21, 2014, the police stopped the Suburban. Gallardo was driving and Jason Dwight Andrewswasin the passengerseat. Thepolice searched the Suburban and recovered two loaded semiautomatic handguns, fourplastic bagsfilled with marijuana, a potato chip canister containing 11 bags of marijuana, 0.86 grams of methamphetamine, 1.26 gramsof cocaine and a digital scale. Gallardo and Andrews were taken into custody. After being advised of her rights, Gallardo agreedto talk to the police. She admitted that she owned the Suburban. She said on the morningofthe robbery, a friend asked her to give Andrewsa ride. She picked up Andrewsand another man. Andrewstold her to follow a black pickup truck. She followed the truck until it came to a stop. Andrews and the second mangot out of her Suburban andranto a vehicle that was stoppedin front of the pickup truck. She did not know what the men were doing. The men returned to the Suburban holding firearms. 2 Andrewstold her to drive away. They gave her $40 for gas and told her not to say anything. She said Andrews and another man ownedthe drugs and gunsthe police found | in her Suburban whenshe was arrested. Defense Los Angeles County Deputy Sheriff Jennifer Gutierrez testified Narvez told her the man who robbed him came from the black pickup truck and returned to the black truck after the robbery. A sheriff's departmentcriminalist testified the nine-millimeter handgun did not contain Gallardo's DNA. DISCUSSION I. Gallardo contends thetrial court erred in denying her suppression motion. Gallardo argues herarrest was not based onsufficiently reliable information. At the hearing on the suppression motion, Detective Arturo Spencer testified he spoke with Narvez at the location ofthe robbery. Narvez told Spencerthat a witness handed him an envelope moments after the robbery. The witness told Narvez that the envelope had the license plate numberof a vehicle involvedin the offense. Spencer entered the numberin the law enforcement data base. Officer Michael Gallegos testified he was on patrol when he heard a radio broadcast that Gallardo's license plate had been detected by an automated license reader in Huntington Park. Gallegos later saw the Suburban and confirmed it was wanted in connection with an armed robbery. Gallegos called for backups. When they arrived, he stopped the Suburban. Deputy Steven Johnsontestified he arrived after the Suburban had been stopped. A strong odor of marijuana emanated from the car. He searched the car and recovered firearms, drugs anda scale. Thetrial court denied the suppression motion finding that the information provided to Narvez by the witness was reliable, that officers had reasonable suspicion to detain Gallardo, and that the ensuing search of the Suburban was lawful. Gallardo argues the information supporting her detention was insufficiently reliable because it came from an unknown person. Shepoints out the detention was made on information passed throughofficial channels. Sherelies on the Harvey-Maddenrule that an officer making the detention mayrely on official channels, but the prosecution must show the officer originally supplying the information hadsufficient information to justify the detention. (People v. Madden (1970) 2 Cal.3d 1017; People v. Harvey (1958) 156 Cal.App.2d 516.) Here there was noviolation of the so-called Harvey/Maddenrule. Our Supreme Court has explained what is necessary to justify an investigative stop or detention. "[I]n order to justify an investigative stop or detention the circumstances knownor apparentto the officer must include specific and articulable fac ts causing him to suspectthat (1) someactivity relating to crime has taken placeoris occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only musthe subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonablepolice officerin a like position, drawing when appropriate on his training and experience . . . to suspect the samecriminal activity and the same involvement by the personin question." (In re Tony C. (1978) 21 Cal.3d 888, 893; People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 827.) Underthe appropriate circumstances, an anonymoustip can provide a reasonable suspicionsufficient to justify a detention. (See,e.g., in re Richard G. (2009) 173 Cal.App.4th 1252, 1257-1258 [anonymouscaller reporting late night disturbance involving firearm and describing the people involved and their clothing].) Just as in Richard G., reliability of the information surrounding the robbery established sufficient ground for the arresting officer to stop Gallardo's vehicle. Wedisagree with Gallardo's assertion that the supporting facts here consist of nothing more than some numbers written on an envelope given to the victim by an unknownperson. The facts include that the victim reported a robbery andthat the unknown person gave the victim the license plate numbers at the scene moments after the robbery occurred. There is nothing to suggest the license plate numbers were the product of a hoax, or that the unknown person was motivated by anything other than a desire to assist the victim and the police. Any reasonable police officer would make an investigative stop or detention based on that information. Thetrial court properly denied the motion to suppress. Il. Gallardo contendsthe trial court erred in admitting the unidentified witness's hearsay statement heard on the victim's 911 call. Over Gallardo's objection, the trial court admitted the unidentified witness's statements under the spontaneous statement exception to the hearsay rule. Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsayrule if the statement: [{] [p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [{] [w]as made spontaneously while the declarant was underthe stress of excitement caused by such perception.” We must uphold thetrial court's determination that the statements are admissible under Evidence Code section 1240 if it is supported by substantial evidence. (People v. Brown (2003) 31 Cal.4th 518, 541.) Gallardo claimsthere is no evidence the unidentified witness was under the "stress of excitement” caused by witnessing the robbery. She argues not every witness at the scene of the crime may be assumedto be in an excited condition. That maybetrue of many crimes. But the trial court could reasonably conclude that anyone who witnessed an armed robbery during which a handgun waspointed at the victim would be in an excited condition. Finally, that the 911 call took place two minutes after the robbery showsthat the witness wasstill under the influence of the event when he made the 5 statements. The trial court could reasonably conclude that the witness's statements are admissible under Evidence Code section 1240. iil. Gallardo contends the trial court's failure to instruct on the firearm enhancementto count 1 (robbery) requiresreversal. The People concede that it would have beenbetter had thetrial court instructed with CALCRIM No. 3115. Nevertheless, the People point out that other instructions properly instructed the jury on all elements ofthe firearm enhancement. The jury foundthat a principal was armed with a firearm during the commission of the robbery. Thetrial court instructed the jury that "principals" are those who directly and actively commit the crimeor those whoaid and abet in its commission; that "firearm"includes a pistol or revolver; and that "armed with a firearm" means "knowingly to carry a firearm or haveit available for offensive or defensive use." The jury hadall the information it needed to decide the enhancement. Dueprocessis not violated whereall the information pertaining to an enhancementin an omitted instruction is provided in other properly given instructions. (People v. Friend (2009) 47 Cal.4th 1, 54.) Gallardo arguesthe jury could not have pieced together the information from various instructions. But there is no reason whyit could not have. Theinstructions must be considered as a whole and we assumethejurors are capable of correlating and following the instructions. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) IV. Gallardo contendsthat the trial court erred in relying on hearsay and undertaking judicial fact finding in finding her prior conviction to be a strike. The information alleged that Gallardo had suffered a prior felony conviction for violating section 245, subdivision (a)(1), and that the conviction constitutes a strike within the meaningofthe three strikes law. Prior to the jury's verdict on the substantive offenses, Gallardo waived her right to a jury trial on the prior conviction allegation. In so waiving, she acknowledged that she "will not be entitled in any manner whatsoeverto ajury trial concerning that prior conviction." Thetrial court examined the minute order showing Gallardo pled no contest to violating section 245, subdivision (a)(1). The trial court also considered, over Gallardo's hearsay objection, the preliminary hearing transcript from that case. During the preliminary hearing, the victim testified that Gallardo pointed a knife at him and punched him while holding the knife. The victim said the knife might have nicked him by accident. Atthe time Gallardo pled no contest to violating section 245, subdivision (a)(1), the offense could be committed either by assaulting another person with a deadly weaponorby use offorce likely to cause great bodily injury. Only wherethe offenseis committed by use of a deadly weapon doesit constitute a serious felony, and thus strike underthe three strikes law. (§ 1192.7, subd. (c)(23), (31); People v. Delgado (2008) 43 Cal.4th 1059, 1065.) The trial court found true that Gallardo suffered a prior conviction and that it constituted a strike. Gallardo relies on Apprendi v. New Jersey (2000) 530 U.S. 466, 490, for the proposition that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyondthe prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Gallardo argues that the question whether her prior conviction constitutes a strike should have been submitted to a jury. But Gallardo ignores her waiver of a jury trial "in any manner whatsoever"relating to the prior conviction allegation. In any event, even had Gallardo not waivedajury, the question whether her prior conviction constitutes a strike wouldstill be a matterfor the trial court. In People v. McGee (2006) 38 Cal.4th 682, the California Supreme Court determined the court should decide whether a prior conviction constitutes a strike. There, 7 BS 3 the defendant had prior robbery convictions in Nevada. A prior conviction in a foreign jurisdiction is a strike in California only if the convictions involved conductthat would also constitute a strike under California law. (Id. at p. 691.) The court notedthere are distinctions between the elements of robbery in Nevada and California such that "it was at least theoretically possible that defendant's Nevada convictions involved conductthat would not constitute robbery under California law." (/d. at p. 688.) Thetrial court examined various documents from the Nevada convictions, including transcripts from preliminary hearings. The court concludedthat the defendant's conduct in the Nevada robberies constituted strikes. (Jd. at p. 690.) The Court ofAppeal reversed, concluding that under Apprendi the question should have been submitted to the jury. Our Supreme Court reversed the Court of Appeal. The court held that the defendant was notentitled to have a jury decide whether his Nevada robbery convictions qualified as strikes under California law. In reversing, our Supreme Court stated: "[W]e observethat the matter presentedis not, as the Court ofAppeal appears to have assumed, a determination or finding ‘about the [defendant's earlier] conductitself, such as the intent with which a defendantacted.’ Instead, it is a determination regarding the nature or basis of the defendant's prior conviction—specifically, whether that conviction qualified as a conviction of a serious felony. California law specifies that in making this determination, the inquiry is a limited one and mustbe based uponthe record ofthe prior criminal proceeding, with a focus on the elements ofthe offense of which the defendant was convicted. If the enumeration of the elements of the offense does not resolve the issue, an examination ofthe recordofthe earlier criminal proceeding is required in order to ascertain whetherthat record reveals whether the convictionrealistically may have been based on conduct that would not constitute a serious felony under California law." (People v. McGee, supra, 38 Cal.4th at p. 706.) After McGee, the United States Supreme Court decided Descampsv. United States (2013) _ U.S. _ [186 L.Ed.2d 438] (Descamps). Descamps involves sentence enhancements under the federal Armed Career Criminal Act (ACCA). (18 8 U.S.C. § 924(e).) The ACCAprovides for sentence enhancements for federal defendants who haveprior convictions for certain felonies, including burglary. To determine whether a prior conviction constitutes one of those crimes, courts use the so-called “categorical approach." They compare the statutory elements of the crime constituting the prior conviction with the elements of a "generic crime"; that is, the offenseasit is commonly understood. The defendanthad prior California convictions for burglary. The generic crime of burglary has unlawful entry as an element. But the California statutory elements for burglary do not include unlawful entry. (§ 459.) Does the defendant have the right to a jury trial on the question whetherhis prior burglaries involved an unlawful entry? In deciding that question, Descampsdistinguished twotypesofstatutes. Onetypeofstatute is a so-called "divisible statute." That kind of statute sets out one or more elements of the offense in the alternative. If one alternative matches an elementin the generic offense but the other alternative does not, the court may consult "a limited class of documents, such as indictments and jury instructions," to determine which alternative formed the basis of the prior conviction. (Descamps, supra, _ U.S.at p. _ [186 L.Ed.2d at p. 449].) Then the court can apply the categorical approach by comparing the elements of the prior conviction with the elements of the generic crime. (Ibid.) The second typeofstatute is a so-called "indivisible statute"; that is, a statute that does not contain alternative elements. A problem arises whenanindivisible statute criminalizes a broader scope of conduct than the generic offense. Thus, for example, California's burglary statute, by not having unlawful entry as an element, criminalizes more conduct than a generic burglary. The court held that a sentencing court is not authorized to go beyond the elementsofthe prior conviction to make a finding of fact that the defendant's conduct constituted a generic crime; for example, that he made the unlawful entry necessary for generic burglary. The court stated: "The Sixth Amendment contemplates that a jury—nota sentencing court—will find such facts, 9 unanimously and beyond a reasonable doubt. Andthe only facts the court can be sure the jury so foundare thoseconstituting elements ofthe offense—as distinct from amplifying but legally extraneouscircumstances. [Citation.] Similarly, ... when a defendant pleads guilty to a crime, he waiveshis right to a jury determination of only that offense's elements... ." (Descamps, supra, _ U.S. at p. _ [186 L.Ed.2d atp. 457]-) Therecent case ofPeople v. Saez (2015) 237 Cal.App.4th 1177, like Descamps,involved an indivisible statute. In Saez, the defendant hadsuffered prior convictions in Wisconsin. The prior convictions were under statutes that criminalized a broader scope of conduct than similar California statutes. Saez held that under Descamps the sentencing court cannot use the record of conviction to makea finding offact that the defendant's conduct would have been a strike in California. (Saez, at pp. 1207-1208.) This case is different. Here, we are concerned with a "divisible statute." The elements ofthe offense are stated in the alternative. Under Descamps, the sentencing court may consult extrinsic documents to determine whichalternative formed the basis of the prior conviction. A jury determinationis not required. The next question is whether thetrial court erred in basing its determination on the preliminary hearing transcript. Descampsstates the sentencing court may consult "a limited class of documents, such as indictments andjury instructions.” (Descamps, supra, _U.S. at p. _ [186 L.Ed.2dat p. 449].) But nothing in Descamps excludesthe preliminary hearing transcript from that class of documents. Gallardo acknowledges that in People v. Reed (1996) 13 Cal.4th 217, 220, our Supreme Court held that statements from a preliminary hearing transcript thatfell within a hearing exception could be used to prove a defendant's prior assault conviction involved the personaluse of a dangerous or deadly weapon. Gallardo argues, however, that McGee overruled Reed. In support of her argument, Gallardo cites McGee's statement that the inquiry is to the nature of the conviction,nota relitigation of the defendant's prior conduct. (People v. McGee, supra, 38 Cal.4th at p. 706.) But nothing in McGeeprohibits the use of a preliminary hearing transcript to determine the nature of 10 the conviction. In fact, McGee upheld thetrial court's determination that was based on documents including transcripts from preliminary hearings. (/d. at p. 689.) Moreover, our Supreme Court has subsequent to McGeecited Reed with approval. (See People v. Delgado, supra, 43 Cal.4th at pp. 1065, 1071, fn. 5.) We are boundto follow Reed. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Finally, the trial court properly overruled Gallardo's hearsay objection. Evidence Code section 1291, subdivision (a)(2) provides: "Evidence of formertestimony is not made inadmissible by the hearsayrule if the declarant is unavailable as a witness and: [{] [t]he party against whom the formertestimony is offered wasa party to the action or proceeding in which the testimony was given and hadthe right and opportunity to cross-examine the declarant with an interest and motive similar to that which hehas at the hearing.” Gallardo arguesthat her interests and motivesat the preliminary hearing were not the sameas herinterests and motivesatthetrial of the three strikes allegation. But herinterests and motives need notbe identical, only similar. (People v. Zapien (1993) 4 Cal.4th 929, 975.) Gallardo had an interest and motive at the preliminary hearing to challenge evidence that she used a knife. The use of a knife satisfied both the use of a deadly weapon element andthe likelihood to inflict great bodily injury element of the offense. Gallardo argues there was a showing that the witness whotestified at the preliminary hearing was unavailable. But our Supreme Court rejected that argumentin Reed. Becausethe prosecution is prevented from presenting any evidence outside the record of conviction, a witness whotestified at the hearing is unavailable as a matter of law. (People v. Reed, supra, 13 Cal.4th at p. 226.) V. The People concede that Gallardo's conviction for being an accessory after the fact must be reversed. 11 The conviction for being an accessory was based on the same evid ence underlying the robbery conviction. A conviction as both a principa l and an accessory is prohibited where both convictionsrest on essentially the same acts . (People v. Mouton (1993) 15 Cal.App.4th 1313, 1323.) Gallardo's conviction for being an accessory after the fact (§ 32 ) is reversed. In all other respects, the judgmentis affirmed. NOT TO BE PUBLISHED. GILBERT,P.J. Weconcur: YEGAN,J. PERREN,J. 12 PROOF OF SERVICE People v. Gallardo Court of Appeal No. B257357 The undersigned declares that I am a citizen of the United States, over eighteen years of age, not a party to this cause, an attorney authorized to practice in the State of California, and my business address is 9921 Carmel Mountain Rd. #355, San Diego, California 92129. That I served true copies of the attached Appellant’s Petition for Review by mail or email as follows: State Attorney General California Appellate Project by e-service: Los Angeles Office docketingLAawt@doj.ca.gov 520 S. Grand Avenue, 4th Floor Los Angeles, CA 90071 Court of Appeal Second Appellate District Glen T. Kiyohara, Esq. Division Six 8020 E. 2nd St E-Service PO Box 4219 Downey, CA 90241 District Attorney’s Office County of Los Angeles SULMA M. GALLARDO Attn: Appellate Division # WE9794 12720 Norwalk Blvd., Rm. 201 16756 Chino-Corona Road Norwalk, Ca. 90650 Corona, CA 92880 Hon. Thomas McKnewJr., Judge c/o LA Superior Court Clerk Norwalk Courthouse 12720 Norwalk Blvd. Norwalk, CA 90650 I declare under penalty of perjury that the foregoing is true and correct and that each said envelope was sealed, properly addressed, and deposited in the United States mail at San Diego County, California with postage fully prepaid on December 15, 2015. LUNE Christian C. Buckley 22