Filed 8/21/20 P. v. Garcia CA2/4
            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


 THE PEOPLE,                                                             B294014
                                                                         (Los Angeles County
           Plaintiff and Respondent,                                      Super. Ct. No. KA118631)

           v.

 ADAN LEONARDO GARCIA,

           Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles
County, Mike Camacho, Judge. Affirmed and remanded.
         Lori A. Quick, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Michael C. Keller and Nicholas J. Webster, Deputy Attorneys
General, for Plaintiff and Respondent.
        Defendant Adan Leonardo Garcia appeals from a judgment of
conviction after a jury found him guilty of discharging a firearm with
gross negligence (Pen. Code, § 246.3, subd. (a)),1 felon in possession of a
firearm (§ 29800, subd. (a)(1)), unlawful possession of ammunition
(§ 30305, subd. (a)(1)), driving under the influence of an alcoholic
beverage causing injury (Veh. Code, § 23153, subd. (a)), and driving
with a .08 percent blood alcohol content causing injury (id., § 23153,
subd. (b)). As to both Vehicle Code violations, the jury found true the
allegation that defendant had a blood alcohol level content of .15
percent or higher. In a bifurcated proceeding, the trial court found that
defendant had suffered a prior strike under the Three Strikes law
(§§ 667, subds. (b)–(j), 1170.12, subds. (a)–(d)), a prior serious felony
conviction (§ 667, subd. (a)(1)), and a prior prison term (§ 667.5, subd.
(b)).
        On appeal, defendant contends his trial counsel rendered
ineffective assistance of counsel by (1) failing to object to the
admissibility of defendant’s prior felony conviction; and (2) failing to
request an ability to pay hearing before the court imposed various fines,
fees, and assessments. Defendant also contends he is entitled to a
remand based on the enactment of Senate Bill No. 1393, which now
affords the trial court the discretion, which it previously did not have, to
strike defendant’s five-year serious felony enhancement pursuant to
section 667, subdivision (a)(1).



1       Unspecified references to statutes are to the Penal Code.


                                        2
     The People request that we strike the prior prison term
enhancement (§ 667.5, subd. (b)), which the trial court imposed but
stayed, pursuant to recently enacted Senate Bill No. 136.
     We conclude that defendant’s trial counsel did not render
ineffective assistance of counsel. We strike the section 667.5,
subdivision (b) enhancement, and remand the matter with directions for
the trial court to exercise its discretion to impose or strike the prior
serious felony enhancement pursuant to section 667, subdivision (a)(1).
On remand, defendant may request a hearing on his ability to pay the
fines, fees, and assessments imposed. Otherwise, we affirm the
judgment.


                             BACKGROUND
1.   Prosecution Evidence
     Around 4:00 p.m. on July 16, 2018, Christina Ducoing was driving
home with her daughters in the city of Pomona, when she saw
defendant driving a car in her direction. Ducoing testified that she
watched defendant stick his hand out of the driver’s side window of the
car and fire a gun into the air multiple times. Ducoing did not see any
other person in defendant’s car.
     Approximately 15 minutes later in a different area in Pomona,
Arthur Brown Jr. was sitting in his car behind another car driven by
Esteban Zarates; both cars were waiting for the intersection light to
turn green. Suddenly, a car turned the corner and crashed into both
cars. Zarates sustained injuries from the collision. At trial, Zarates



                                      3
and Brown identified defendant as the driver who had caused the
collision.
      After the collision, Brown watched defendant get out of his car
and walk away from the accident. Brown followed defendant to a
shrubbed area near the intersection, where defendant threw something
away before walking back to the cluster of cars.
      Police officers and a K-9 unit responded to the intersection and
located a .45 caliber magazine and .45 automatic handgun scattered
approximately 30 feet apart in the shrubbed area. Officers also located
a spent .45 casing on the windshield of defendant’s car, another .45
casing under the passenger’s side seat, and live rounds on the
floorboard.2 A criminalist testified that all of the casings—including
those recovered from the area where Ducoing had witnessed defendant
fire a handgun—were fired from the recovered .45 handgun. A swab of
defendant’s hands positively identified the presence of gunshot residue,
which, according to a criminalist, meant that defendant had either fired
a gun or had been within three feet of a discharged firearm.
      When an officer interviewed defendant at the scene of the
collision, the officer noticed defendant smelled of alcohol and slurred his
speech; defendant admitted he had recently consumed two 24-ounce
beers. After refusing a field sobriety examination, defendant was
arrested and taken to the police station, where he submitted to a
breathalyzer test. The test results yielded .18 percent and .17 percent

2    The officer located three live rounds capable of being fired. Two of the
rounds were to a .45 firearm; one round was to a .357-magnum firearm.


                                      4
blood alcohol levels. A criminalist testified that an adult male the size
of defendant with such high blood alcohol levels could not safely operate
a vehicle.


2.   Defense Evidence
     Defendant testified on his own behalf. He denied driving the car
and denied firing or touching the firearm and ammunition.3


3.   Information, Verdict, and Sentencing
     Defendant was charged with discharging a firearm with gross
negligence (§ 246.3, subd. (a), count 1), possession of a firearm by a
felon (§ 29800, subd. (a)(1), count 2), unlawful possession of ammunition
(§ 30305, subd. (a)(1), count 3), driving under the influence of an
alcoholic beverage causing injury (Veh. Code, § 23153, subd. (a), count
4), and driving with a .08 percent blood alcohol content causing injury
(id., § 23153, subd. (b), count 5). As to counts 4 and 5, the information
alleged that defendant had a blood alcohol level content of .15 percent
or higher.
     The information further alleged that defendant had been
convicted of and served a prison term in 2013 for unlawful possession of
a firearm with a gang enhancement (former § 29805, § 186.22, subd.



3      Defendant testified that his friend “Spooky,” whose real name
defendant did not know, drove the car and fired the handgun while defendant
continued to sleep in the passenger’s seat. After the collision, Spooky “took
off,” never to be seen by defendant again.


                                     5
(b)(1)(A)), which constituted a prior strike (§§ 667, subd. (d), 1170.12,
subd. (b)), prior serious felony conviction (§ 667, subd. (a)(1)), and prior
prison term (§ 667.5, subd. (b)).
     The jury found defendant guilty as charged and found the elevated
blood alcohol content allegation on counts 4 and 5 true.
     In a bifurcated proceeding, the trial court found that defendant
had suffered a prior strike within the meaning of the Three Strikes law
(§§ 667, subd. (d), 1170.12, subd. (b)), had been convicted of a prior
serious felony (§ 667, subd. (a)(1)), and had served a prior prison term
(§ 667.5, subd. (b)). The court elected not to strike defendant’s prior
conviction and sentenced him to an overall determinate term of nine
years, comprised of the middle term of two years on count 1, doubled for
the prior strike, plus five years for the prior seriously felony conviction.
The court stayed the sentences on counts 2 and 5, and ran the sentences
on counts 3 and 4 concurrently to count 1.


                              DISCUSSION
1.   Defendant Did Not Receive Ineffective Assistance of Counsel
     When defendant indicated he would be testifying in his defense,
the court inquired if there was evidence of defendant’s moral turpitude.
The People identified defendant’s 2013 felony conviction for unlawful
possession of a firearm with a gang enhancement (former § 29805,
§ 186.22, subd. (B)(1)(A)). The court found the conviction to be a crime
of moral turpitude, but it excluded any reference to the gang
enhancement as unduly prejudicial and not probative on any issue.



                                      6
During cross-examination, the People asked, and defendant admitted
that he had been convicted of felony possession of a firearm in 2013.
     Defendant contends that his trial counsel’s failure to object to the
admissibility of his 2013 felony conviction constituted ineffective
assistance of counsel. He asserts the prior conviction could not be used
for impeachment because the crime on which the conviction was based
(unlawful possession of a firearm by a person convicted of an
enumerated misdemeanor) did not involve moral turpitude. He also
contends that the use of the prior conviction was unduly prejudicial.
We disagree.


     A.   Governing Law on the Right to Effective Assistance of
          Counsel
     The Sixth Amendment right to assistance of counsel includes the
right to the effective assistance of counsel. (Strickland v. Washington
(1984) 466 U.S. 668, 686–694.) “‘In assessing claims of ineffective
assistance of trial counsel, we consider whether counsel’s representation
fell below an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine
confidence in the outcome. [Citations.]’” (People v. Gamache (2010) 48
Cal.4th 347, 391 (Gamache).)
     Defendant bears the burden of establishing ineffective assistance
of counsel. (Gamache, supra, 48 Cal.4th at p. 391.) We indulge every
“presumption that counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions can be


                                    7
explained as a matter of sound trial strategy. . . . If the record on
appeal sheds no light on why counsel acted or failed to act in the
manner challenged, an appellate claim of ineffective assistance of
counsel must be rejected unless counsel was asked for an explanation
and failed to provide one, or there simply could be no satisfactory
explanation. [Citation.]’ [Citation.]” (Ibid.; accord, People v. Thompson
(2010) 49 Cal.4th 79, 122 [“[c]ounsel is not ineffective for failing to make
frivolous or futile motions”].)


      B.    Admission of Defendant’s Prior Felony Conviction
      Subject to a trial court’s exercise of discretion under Evidence
Code section 352, evidence of a felony conviction for an offense involving
moral turpitude is admissible for impeaching any witness in a criminal
proceeding. (People v. Anderson (2018) 5 Cal.5th 372, 407; People v.
Castro (1985) 38 Cal.3d 301, 313, 315–317; see Evid. Code, § 788; Cal.
Const., art. I, § 28, subd. (f)(4).)
      In determining whether an offense involves moral turpitude,
courts utilize “‘“[t]he ‘least adjudicated elements’ test[, which] means
that ‘from the elements of the offense alone—without regard to the facts
of the particular violation—one can reasonably infer the presence of
moral turpitude.’ [Citations.]” [Citation.] “Crimes involve moral
turpitude when they reveal dishonesty, a ‘“general readiness to do
evil,”’” [citation], or “moral laxity of some kind” [citation].’ ([People v.]
Aguilar [(2016) 245 Cal.App.4th 1010,] 1017 [(Aguilar)].)” (People v.
Bedolla (2018) 28 Cal.App.5th 535, 551 (Bedolla).)



                                       8
      Here, the trial court admitted defendant’s 2013 conviction for
violating former section 29805, which provides: “Except as provided in
Section 29855 or subdivision (a) of Section 29800, any person who has
been convicted of a misdemeanor violation of Section 71, 76, 136.1,
136.5, or 140, subdivision (d) of Section 148, Section 171b, 171c, 171d,
186.28, 240, 241, 242, 243, 243.4, 244.5, 245, 245.5, 246.3, 247, 273.5,
273.6, 417, 417.6, 422, 626.9, 646.9, or 830.95, subdivision (a) of former
Section 12100, as that section read at any time from when it was
enacted by Section 3 of Chapter 1386 of the Statutes of 1988 to when it
was repealed by Section 18 of Chapter 23 of the Statutes of 1994,
Section 17500, 17510, 25300, 25800, 30315, or 32625, subdivision (b) or
(d) of Section 26100, or Section 27510, or Section 8100, 8101, or 8103 of
the Welfare and Institutions Code, any firearm-related offense pursuant
to Sections 871.5 and 1001.5 of the Welfare and Institutions Code, or of
the conduct punished in subdivision (c) of Section 27590, and who,
within 10 years of the conviction, owns, purchases, receives, or has in
possession or under custody or control, any firearm is guilty of a public
offense, punishable by imprisonment in a county jail not exceeding one
year or in the state prison, by a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine.” (Former § 29805.)4


4      The statute has been amended to cover persons with a conviction of or
outstanding warrant for the enumerated misdemeanor violations. The
amendment also added to the list of violations sections 148.5, subdivision (f),
422.6, and section 487 if the property taken was a firearm; and omitted from
the list of violations former section 12100, subdivision (a). (§ 29805, subd.
(a).)


                                       9
     The elements of the offense include: (1) defendant owned,
purchased, received, or possessed a firearm; (2) defendant knew that he
owned, purchased, received, or possessed the firearm; (3) defendant had
previously been convicted of an enumerated misdemeanor(s); and (4)
the previous conviction was within 10 years of defendant’s possession of
the firearm. (CALCRIM No. 2511.)
     Based on these elements, we conclude that defendant’s violation of
former section 29805 constituted a crime of moral turpitude. We reach
this conclusion for two reasons. First, former section 29805 falls into
the class of crimes involving the possession of a firearm. That class of
crimes has consistently been found to involve moral turpitude given the
increased risk of violence attending to possessing a firearm. (See
Aguilar, supra, 245 Cal.App.4th at p. 1017 [carrying concealed firearm
in a vehicle in violation of § 25400, subd. (a)(1)]; People v. Robinson
(2011) 199 Cal.App.4th 707, 715 (Robinson) [unlawful possession of a
firearm by a felon in violation of former § 12021, subd. (a)(1)]; People v.
Feaster (2002) 102 Cal.App.4th 1084, 1093 [discharge of firearm in
grossly negligent manner in violation of § 246.3]; People v. Garrett
(1987) 195 Cal.App.3d 795, 800 [possession of an unregistered firearm
in violation of 26 U.S.C. § 5861, subd. (d)].)
     Second, the statute proscribes possession of a firearm by persons
“who have been proven unable to control violent criminal impulses.”
(People v. Flores (2008) 169 Cal.App.4th 568, 575 (Flores) [discussing
constitutionality of former § 12021, subd. (c)]; see Law Rev. Com.
comments to § 29805 [former § 12021, subd. (c) has been continued



                                     10
“without substantive change” by the enactment of former section
29805].) Certainly, those who cannot control violent criminal impulse
are more readily able to do evil. (See Bedolla, supra, 28 Cal.App.5th at
p. 551.)
      Defendant contends former section 29805 does not constitute a
crime of moral turpitude because it proscribes conduct from
misdemeanants, a class of recidivists he contends are generally “less
dangerous than recidivist felons.”
      Former (and current) section 29805 does not apply generally to
misdemeanants; it applies instead to a specific class of misdemeanants
who have committed crimes involving threats, intimidation and
impersonation;5 violence and/or use of firearms;6 or the unlawful sale,
possession, or reporting of deadly weapons or ammunition.7 By
violating one or more of these crimes, prohibited persons under former
section 29805 have demonstrated a propensity for violence and
willingness to use a firearm for dangerous purposes. (See Flores, supra,
169 Cal.App.4th at p. 575; accord, Robinson, supra, 199 Cal.App.4th at
p. 714 [“[t]he purpose of [former] section 12021 is to protect the public


5     See sections 71, 76, 136.1, 136.5, 140, 422, 422.6, 646.9, and 830.95.

6     See sections 240, 241, 242, 243, 243.4, 244.5, 245, 245.5, 246.3, 247,
273.5, 273.6, 417, 417.6, 626.9, 17500, 17510, 25300, 25800, and 26100,
subdivisions (b) and (d).

7      See section 148, subdivision (d), 148.5, subdivision (f), 171b, 171c,
subdivision (a)(1), 171d, 186.28, 487 if theft was a firearm, 27590, subdivision
(c), 30315, 32625, 27510; and Welfare and Institutions Code sections 8100,
8101, 8103, 871.5, and 1001.5.


                                      11
welfare by precluding the possession of guns by those who are more
likely to use them for improper purposes”].) Thus, because defendant’s
violation of former section 29805 constituted a crime of moral turpitude,
his prior felony conviction was admissible for purposes of impeachment.
His counsel was not ineffective for objecting to its admission on this
ground.
      Anticipating this result, defendant contends trial counsel was
ineffective for failing to object to the use of the prior conviction, which
he contends was unduly prejudicial under Evidence Code section 352.
Despite the record’s silence on why counsel abstained from objecting,
the objection would have been futile. (See Gamache, supra, 48 Cal.4th
at p. 391.)
      A trial court may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will
create a substantial danger of undue prejudice. (Evid. Code, § 352; see
People v. Wheeler (1992) 4 Cal.4th 284, 296 [trial courts have broad
discretion to rule under Evid. Code, § 352].)
      Defendant’s prior conviction was clearly probative on his
credibility, an issue defendant concedes “was of paramount importance”
because his testimony was the only support for his defense that he had
not driven the car or touched the firearm or ammunition. (See People v.
Mendoza (2000) 78 Cal.App.4th 918, 925 [“defendant’s convictions were
clearly probative on the issue of his credibility . . . . This is particularly
true in light of the fact that defendant’s line of defense at trial was an
outright denial of guilt, i.e., his credibility was directly at issue”].)



                                      12
      Despite the prior conviction’s similarity with the crimes on which
defendant was tried, use of the prior conviction was not unduly
prejudicial. Similarity between a prior conviction and the charged
offenses is but one factor a court may consider when balancing
probative value against prejudice. (People v. Edwards (2013) 57 Cal.4th
658, 722; People v. Hinton (2006) 37 Cal.4th 839, 888 [excluding similar
prior felony convictions “would have given defendant a ‘“false aura of
veracity”’”]; People v. Gutierrez (2018) 28 Cal.App.5th 85, 91 (Gutierrez);
see also Cal. Const., art. I, § 28, subd. (f).) The trial court instructed the
jury that it could consider the prior felony conviction only in evaluating
defendant’s credibility. “‘Any prejudice that the challenged information
may have threatened must be deemed to have been prevented by the
court’s limiting instruction to the jury. We presume that jurors
comprehend and accept the court’s directions. [Citation.]’ [Citation.]”
(Gutierrez, supra, at p. 91.)
      In short, defendant’s prior felony conviction was admissible
impeachment evidence, the use of which did not unduly prejudice
defendant. Moreover, even if the court had excluded the prior
conviction, defense counsel’s failure to object was not prejudicial.
Defendant was identified as the lone perpetrator by three different
witnesses, whose testimony was supported by the physical evidence,
including the location of the firearm, ammunition, and gunshot residue
traceable to defendant’s hands. Thus, had defense counsel objected and
had the prior conviction been excluded, it is not reasonably probable
that a different result would have been reached. (Gamache, supra, 48
Cal.4th at p. 391.)

                                     13
2.   Senate Bill No. 1393
     On count 1 for discharging a firearm in a grossly negligent
manner, the court imposed one consecutive five-year enhancement
pursuant to section 667, subdivision (a)(1). Defendant contends he is
entitled to a remand based on the enactment of Senate Bill No. 1393,
effective January 1, 2019, which amended section 1385 so as to give the
trial court the discretion (which it previously did not have) to strike
section 667 enhancements. The People contend remand is futile
because the trial court’s statements demonstrate that it clearly
intended to impose the enhancement, and would not have dismissed the
enhancement. We conclude remand is appropriate.
     “We are not required to remand to allow the court to exercise its
discretion if ‘the record shows that the trial court clearly indicated when
it originally sentenced the defendant that it would not in any event
have stricken [the] . . . enhancement’ even if it had the discretion.
[Citation.]” (People v. Jones (2019) 32 Cal.App.5th 267, 272–273
(Jones).) “In reviewing whether the trial court made such an
unequivocal indication, we consider the trial court’s statements and
sentencing decisions.” (People v. Franks (2019) 35 Cal.App.5th 883,
892; see id. at p. 893 [trial court elected to impose upper term and
stated it would not have dismissed the enhancement if it had the
discretion to do so]; Jones, supra, at pp. 274–275 [trial court denied
defendant’s motion for new trial, noted defendant had been released a
few months prior to arrest, sentenced defendant to upper term, and

                                    14
“made clear its intention to impose the most stringent sentence it could
justifiably impose”].)
     Here, the trial court did not affirmatively indicate that it would
refrain from striking the five-year enhancement if it had the discretion
to do so. Despite finding the factors in aggravation to be overwhelming
and in favor of a high-term sentence, the court imposed the middle term
of two years imprisonment on count 1. The court also imposed a
concurrent middle term of two years on count 3, even though it could
have imposed the term consecutively.8 Thus, we remand the matter for
the court to exercise its discretion to impose or strike the five-year
enhancement under section 667, subdivision (a)(1).


3.   Senate Bill No. 136
     Defendant contends the trial court imposed an unauthorized
sentence by staying rather than striking the prior prison term
enhancement under section 667.5, subdivision (b). The People agree
that, due to the recent enactment of Senate Bill No. 136, the court
should have stricken the enhancement.
     While this appeal was pending, Senate Bill No. 136 amended
section 667.5, subdivision (b), to restrict the circumstances under which
a one-year sentence enhancement may be imposed for a prior prison
term. (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) The court imposed
and stayed a one-year prior prison term enhancement based on
defendant’s 2013 conviction for unlawful possession of a firearm.


8    The court also elected to run the sentence on count 4 concurrently.

                                    15
Section 667.5, subdivision (b) now allows for the imposition of a one-
year prior prison term enhancement only if the prior prison term was
served for a sexually violent offense.
     The People acknowledge that Senate Bill No. 136 applies
retroactively to those like defendant whose sentences were not final at
the time that Senate Bill No. 136 became effective. (People v. Chubbuck
(2019) 43 Cal.App.5th 1, 13–14.) We agree, and strike the one-year
prior prison term enhancement.


4.   Ability to Pay
     At the sentencing hearing, the court imposed a $300 restitution
fine (§ 1202.4, subd. (b)) a criminal conviction assessment of $150 (Gov.
Code, § 70373), and a court operations assessment of $200 (§ 1465.8,
subd. (a)(1)). Defendant contends his trial counsel rendered ineffective
assistance because counsel failed to request an ability to pay hearing
(see People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168 (Dueñas), which
was decided after the sentencing hearing). We decline to address the
issue. Given that we must remand the case for additional proceedings
on the section 667, subdivision (a)(1) enhancement, as part of that
remand defendant may request a hearing to present evidence
demonstrating whether he is unable to pay the fines, fees, and
assessments imposed.
                                     //
                                     //




                                    16
                             DISPOSITION
     The one-year enhancement under section 667.5, subdivision (b) is
stricken. The matter is remanded for the court to exercise its discretion
whether to strike the five-year enhancement under section 667,
subdivision (a)(1). On remand, defendant may also request a hearing
on his ability to pay the fines, fees, and assessments. In all other
respects, the judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                           WILLHITE, J.
     We concur:



     MANELLA, P. J.



     COLLINS, J.




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