Filed 10/4/13 P. v. Lopez CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                      A133997

         Plaintiff and Respondent,                               (Sonoma County Super. Ct.
v.                                                               No. CR1001212
MARIO ANTONIO LOPEZ,                                             ORDER MODIFYING OPINION AND
         Defendant and Appellant.                                DENYING PETITION FOR REHEARING



BY THE COURT;
         The opinion filed herein on September 9, 2013, is modified as follows:
         (1) On page 2, the final sentence of the first full paragraph is modified to read:
“We conclude that none of these contentions has merit, and thus we affirm.”
         (2) On page 13, the caption is modified to read: “The Trial Court Did Not Err
In Denying Defendant’s Romero Motion.”
         (3) On page 14, the final sentence of the first full paragraph, and the second full
paragraph, are modified to read: “Defendant is not correct.
         “Defendant‟s 2006 conviction of violating former section 245, subdivision (a)(1)
(currently section 245, subdivision (a)(4)) constituted a serious felony for purposes of the
Three Strikes law because it was found to have been committed for the benefit of a
criminal street gang within the meaning of section 186.22, subdivision (b)(1). (§ 1192.7,
subd. (c)(28); People v. Briceno (2004) 34 Cal.4th 451, 456, 459.) But defendant‟s
objection is not so much legal as factual. He maintains that it was a term of the 2006 plea


                                                             1
bargain that the conviction would not be used as a strike in future prosecutions. But the
written change of plea form, the transcript of the change of plea, and the transcript of
defendant‟s 2006 sentencing were examined by the trial court, whose conclusion was
“there was never a mention . . . that it wasn‟t a serious or violent felony.” Those same
sources are in the record on appeal, and our examination corroborates the trial court‟s
statement. In these circumstances, there is no ambiguity or term of the agreement that
works in defendant‟s favor. (Cf. People v. Watts (2005) 131 Cal.App.4th 589, 596 [“On
an appellate challenge to a finding that a prior conviction was a strike, . . . if it cannot be
determined from the record that the offense was committed in a way that would make it a
strike, a reviewing court must presume the offense was not a strike.”].) Thus, there was
no error in denying defendant‟s Romero motion.”
         (3) On page 15, the disposition is modified to read: “The judgment of conviction
is affirmed.”
         This modification does effect a change in the judgment.
         The petition for rehearing is denied.



Dated:                                                     ____________________
                                                           Acting P.J.




                                                 2
Filed 9/9/13 P. v. Lopez CA1/2 (unmodified version)
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A133997
v.
MARIO ANTONIO LOPEZ,                                                 (Sonoma County
                                                                     Super. Ct. No. SCR581958)
         Defendant and Appellant.


         A jury found defendant Mario Antonio Lopez guilty as charged of being an active
member of a criminal street gang (Penal Code, § 186.22, subd. (a) 1), and being a
past-convicted felon in possession of a firearm (former § 12021, subd. (a)(1)2). The jury
also found true an allegation that the latter offense was “committed . . . with the specific
intent to promote, further, or assist in any criminal conduct by gang members” (§ 186.22,
subd. (b)(1)). After finding true allegations that defendant had a prior felony conviction
for purposes of various enhancing statutes (§§ 667, 667.5, 1170.12), the trial court denied
defendant‟s motion to strike the serious violent felony prior pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced him to state prison for an
aggregate term of nine years.



         1
             Subsequent statutory references are to the Penal Code.
         2
         Operative January 1, 2012, former section 12021, subdivision (a)(1), was
repealed and reenacted without substantive change as section 29800, subdivision (a)(1).
(Stats. 2010, ch. 711, § 4 [repealed]; Stats. 2010, ch. 711, § 6 [reenacted].)


                                                             1
          On this timely appeal, defendant makes numerous and varied claims of error. He
first contends that his motion to suppress evidence was erroneously denied on the ground
that he lacked standing to contest the search of the residence where the firearm was
found. Next, he contends that substantial evidence does not support either of the
gang-related penalties, and that substantial evidence is also lacking on the crucial point of
his possession of the weapon. Next he argues that the trial court erred when it responded
to a question from the jury. Finally, he argues that the trial court abused its discretion
when it denied his Romero motion to strike his prior felony conviction so that he would
not be sentenced in accordance with the Three Strikes law. We conclude that only the
last of these contentions has merit, and that the error requires resentencing, but otherwise
affirm.
                                       BACKGROUND
          On the afternoon of April 22, 2010, Santa Rosa police conducted a search of a
residence at 1690 Dutton Street which they believed defendant might be sharing with his
sister. The search was conducted pursuant to the standard search provision applicable to
all parolees—and defendant was less than a year out of state prison for a gang-related
assault.
          Detective Brian Sinigiani, assigned to the gang unit (and the prosecution‟s expert
witness on gangs), knocked at the front door. Defendant answered. The officers,
approximately ten in number, entered and began searching the house, which had three
bedrooms. One of the bedrooms was for children. One belonged to Jordan Paz, who was
also present at the time of the search.3 Detective Sinigiani described the search of the
third bedroom: “It . . . appeared to be occupied by a male, all male clothing inside.
There was shirts hanging up in the closet. And a dresser . . . . [¶] . . . [¶]. . . I saw some
paper laying on the dresser with . . . Mario Lopez‟s name on it. Further search I found
approximately thirty to forty other pieces of papers or items, personal property belonging

          3
        Paz was the boyfriend of Angelina Lopez, defendant‟s sister, who also lived at
the address. The house was being rented in the sister‟s name. Paz was identified by
Detective Sinigiani, and by Ms. Lopez, as a member of a different “Norteño set.”


                                               2
to Mr. Lopez . . . . [¶] . . . And then there was a bed off to the right and a little nightstand
. . . and right next to the nightstand was a larger grouping of paperwork.” Inside a drawer
of the dresser Sinigiani found an unloaded handgun.4 All of the “paperwork” had
defendant‟s name on it, and “a large amount” of it was on top of the dresser. Defendant
was carrying a key to the front door.
        Detective Sinigiani testified that he had seen defendant at this address three times,
and had recently talked with defendant on two occasions, one of which occurred when
defendant was inside the house. Among the “paperwork” discovered was defendant‟s
Social Security card and his California ID card showing 1690 Dutton Street as his
address. A certificate of title issued by the DMV also showed 1690 Dutton Street as
defendant‟s address. So did a Manchester-Point Arena Band of Pomo Indians tribal ID
card.
        Detective Sinigiani further testified that the Norteño criminal street gang was
engaged in various patterns of criminal gang activity: “primarily . . . drug sales and in
violent offenses, including robberies of persons, murders and assaults on rival gang
members, witness intimidation . . . auto theft,” and other “money making opportunities.”
Detective Sinigiani believed defendant was an active Norteño member. Defendant had a
number of what Detective Sinigiani termed “gang tattoos”; they were not “Norteño
specific,” but “are consistent with gang participation.” Among defendant‟s “paperwork”
were letters and envelopes from California and Arizona prison inmates which could
indicate that defendant was passing information “from the prison out to streets,” and what
could be a written code key to disguise gang-related information. Defendant also had the
name and CDC number of an incarcerated high ranking Norteño leader, and possession of
this information “would be an indication to me of gang participation.”


        4
        The gun was the subject of stipulations read to the jury, that: Charles Russell
purchased the weapon in 1994 in North Hollywood. He never lived in Sonoma County,
never visited the Dutton Street address, and has “never given anyone permission to
possess this firearm.” A fingerprint examiner with the Santa Rosa Police Department
found no latent prints on the gun.


                                               3
       Moreover, there were several “documented law enforcement contacts” where
defendant was involved in gang fights “with other Norteño gang participants,” and other
times was simply seen with other “other Norteño gang participants.” There were
photographs of defendant throwing gang signs. All of this was indicative of “an active,
continuing ongoing association.” Detective Sinigiani testified that “Mr. Lopez‟s family
has a long history of gang associations” dating back to the 1980s. And defendant‟s
brother, uncle, and father are active Norteños.
       When asked “Can the possession of a firearm such as People‟s 1, possession by an
active participant in the Norteño criminal street gang, can that constitute a benefit for the
gang,” Detective Sinigiani answered, “Yes, I believe so.” He explained gun possession
“boosts your status within the gang” because it can make one a “go-to person” for
borrowing it, and because for “gang members out on the street” it is “the ultimate
weapon.” Sinigiani believed the weapon was under defendant‟s control in that “he
exercised the same control over that firearm as all of his personal . . . items in that room.”
       The sole witness for the defense, Angelina Lopez, testified that defendant lived at
the house from July (after his release from prison) to September of 2009, and thereafter
moved in with his wife at an apartment in Santa Rosa. Even after moving, defendant
visited often, and his sister gave him full access to the room, and let him store
possessions there. She allowed defendant to have mail sent to the apartment. She
allowed many other people, including people she knew to be Norteños, to have access to
the room and to use it as a storeroom. She testified that neither she, Paz, defendant, nor
the other people she let have access to the room brought the gun into the house. In fact,
she never saw the gun until the trial. Finally, she admitted that in the past she had “hung
out” with Norteños, and that the father of her child is a Norteño.




                                              4
                                         REVIEW

                           Denial Of Defendant’s Suppression
                                Motion Was Not Error

       As a parolee, defendant was statutorily “subject to search or seizure by a probation
or parole officer or other peace officer at any time of the day or night, with or without a
search warrant or with or without cause.” (§ 3067, subd. (b)(3).) As a general principle,
so long as the searching officers know the parolee‟s status prior to conducting the search
(People v. Sanders (2003) 31 Cal.4th 318, 333), there is no Fourth Amendment problem
with a warrantless search of a parolee‟s person, place, or effects despite the absence of a
particularized suspicion of criminality. (Samson v. California (2006) 547 U.S. 843, 856;
People v Reyes (1998) 19 Cal.4th 743, 752-753.) The only exception to this general
principle is that the search cannot be “arbitrary and capricious,” which means “unrelated
to rehabilitative, reformative, or legitimate law enforcement purposes,” or harassment
“motivated by personal animosity toward the parolee.” (People v. Reyes, supra, at
pp. 753-754.)
       Defendant moved to suppress all evidence obtained from the search of the Dutton
Street house on the ground that it amounted to harassment and was tainted by this
improper impulse. After a brief evidentiary hearing, the trial court denied the motion on
the dual grounds that defendant lacked standing and there was no evidence of harassment.
Defendant presents three arguments to overthrow that denial.
       First, he asserts that the trial court erred in concluding he lacked standing to
contest the search. However, he mounts no comparable attack on the other ground for the
denial. Thus, he is only attacking one of the two grounds for the denial, implicitly
conceding that the trial court‟s order was not incorrect in finding no harassment. Because
the order may be upheld solely on this other ground, defendant‟s standing argument may
be treated as moot. (See, e.g., Transamerica Ins. Co. v. Tab Transportation, Inc. (1995)
12 Cal.4th 389, 399, fn 4; Filipino Accountants’ Assn. v. State Bd. of Accountancy (1984)
155 Cal.App.3d 1023, 1029; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 342,



                                              5
p. 392.) In other words, “one good reason is sufficient to sustain the order . . . .” (Sutter
Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 513.)
       Next, defendant argues that “having prosecuted [him] for possession of the gun on
the theory that he resided at the Dutton Avenue address, the prosecution was estopped
from arguing that [he] lacked standing.” Defendant is in essence arguing that the
prosecution took contradictory positions during the course of the proceedings prior to
judgment. However, it is important to note that defendant makes this point in the context
of attacking the suppression ruling. He cannot do so by using subsequent prosecutorial
positions or arguments, because review of that ruling is confined to the record made
before the trial court at the time the ruling was made. (People v. Moore (2006)
39 Cal.4th 168, 171; In re Arturo D. (2002) 27 Cal.4th 60, 78, fn. 18.) “ „[T]he logical
fallacy of “post hoc ergo propter hoc” (after the fact, therefore before the fact)‟ does not
carry the day.” (Miranda v. Bomel Const. Co., Inc. (2010) 187 Cal.App.4th 1326, 1339.)
       Finally, defendant asserts that he “did not receive a full hearing on the motion.”
His position is that “[s]ince [he] had standing to challenge the search of the Dutton
Avenue residence, he was entitled to a full hearing so that he could establish that the
search at issue was harassing and thereby constitutionally unreasonable.” This is inartful
phrasing that verges on the misleading. Defendant does not actually assert that he was
prevented from calling additional witnesses or submitting additional evidence. He does
not specify how he was frustrated in attempting to subpoena witnesses to testify at the
hearing. He does not identify the witnesses he had ready to testify, but which the trial
court refused to hear. He does not cite to where the record shows him protesting a
prematurely terminated hearing, and the transcript of the hearing shows that nothing of
the kind occurred. Lastly, we do not forget that it was defendant‟s motion that was being
heard, and that the sole ground of that motion was the harassment to which defendant had
been subjected. There was consequently no question of defendant being taken by
surprise.




                                              6
                       The Gang-Related Penalties Are Supported
                               By Substantial Evidence

       The penalties imposed by section 186.22 apply to:
       “Any person who actively participates in any criminal street gang with knowledge
that its members engage in or have engaged in a pattern of criminal gang activity, and
who willfully promotes, furthers, or assists in any felonious conduct by members of that
gang, shall be punished by imprisonment in a county jail for a period not to exceed one
year, or by imprisonment in the state prison for 16 months, or two or three years.”
(§ 186.22, subd. (a) (subdivision (a)).)
       “[A]ny person who is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members, shall, upon
conviction of that felony, in addition and consecutive to the punishment prescribed for
the felony . . . , be punished” by receiving specified terms ranging from two years to life.
(§ 186.22, subd. (b)(1) (subdivision (b)(1)).)
       Subdivision (a) prescribes “ „active gang participation where the defendant
promotes or assists felonious conduct by the gang. It is a substantive offense whose
gravamen is the participation in the gang itself.‟ ” (People v. Ferraez (2003)
112 Cal.App.4th 925, 930.) By contrast, subdivision (b)(1) is a sentence enhancement.
(People v. Briceno (2004) 34 Cal.4th 451, 459-460 & fn. 7.)
       Defendant‟s claims that in several respects the judgment is not supported by
substantial evidence are to be evaluated according to well-established criteria. “To assess
the evidence‟s sufficiency, we review the whole record to determine whether any rational
trier of fact could have found the essential elements of the crime . . . beyond a reasonable
doubt. . . . In applying the test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the [trier
of fact] could reasonably have deduced from the evidence. [Citation.] „Conflicts and
even testimony [that] is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge . . . to determine the credibility


                                                 7
of a witness and the truth or falsity of the facts upon which a determination depends . . . .‟
[Citation.] A reversal for insufficient evidence „is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial evidence to support” the [trier
of fact‟s decision.] [Citation.] [¶] The same standard governs in cases where the
prosecution relies primarily on circumstantial evidence. [Citation.]” (People v. Zamudio
(2008) 43 Cal.4th 327, 357.) The same rules apply to sentence enhancements. (People v.
Albillar (2010) 51 Cal.4th 47, 59-60.)
       Defendant first argues that “there was insufficient evidence to support the gang
enhancement clause under section 186.22(b)(1)(A)” in that “the gang expert did not
present any evidence that the act of felonious possession of a gun could benefit a gang.”
Defendant is imposing something subdivision (b)(1) does not require. To establish an
allegation under subdivision (b)(1), the prosecution must prove two elements, that:
(1) the crime for which the defendant was convicted had been committed for the benefit
of, at the direction of, or in association with any criminal street gang, and (2) the
defendant committed the crime with the specific intent to promote, further, or assist in
any criminal conduct by gang members. (People v. Gardeley (1996) 14 Cal.4th 605,
616-617, 622.) The underlying crime here was defendant‟s possession of a firearm. That
possession was felonious as to defendant because of his status as a convicted felon.
Subdivision (b)(1) does not require the gang also have knowledge of that status. The
possession need not be felonious in order to benefit the gang and promote its activities.
       Defendant next argues that even if Detective Sinigiani “had opined that felonious
possession of a gun, as opposed to merely possession of a gun, could benefit a gang, there
was insufficient evidence that appellant possessed the gun with the specific intent to
benefit a gang.” In People v. Albillar, supra, 51 Cal.4th 47, our Supreme Court rejected
the argument that “section 186.22(b)(1) requires the specific intent to promote, further, or
assist a gang-related crime. The enhancement already requires proof that the defendant
commit a gang-related crime in the first prong—that the defendant be convicted of a
felony committed for the benefit of, at the direction of, or in association with a criminal
street gang. (People v. Gardeley, supra, 14 Cal.4th at pp. 621-622.) There is no further


                                              8
requirement that the defendant act with the specific intent to promote, further, or assist a
gang; the statute requires only the specific intent to promote, further, or assist criminal
conduct by gang members.” (Id. at p. 67; see People v. Morales (2003) 112 Cal.App.4th
1176, 1198 [“specific intent to benefit the gang is not required”]; accord, People v. Leon
(2008) 161 Cal.App.4th 149, 163.)
       Defendant‟s third argument is that “[f]or similar reasons, there was insufficient
evidence to support the section 186.22(a) conviction. Other than gang offenses, the only
conduct at issue was the felonious gun possession. There was no evidence of any other
specific felonious gang conduct that appellant might have promoted or assisted. As there
was insufficient evidence to show that appellant feloniously possessed the gun to benefit
a gang; there similarly insufficient evidence to show that appellant promoted or assisted
any gang in his felonious possession of the gun.” Most of this argument misperceives the
nature of what a subdivision (a) conviction requires.
       “The elements of the gang participation offense in section 186.22(a) are: First,
active participation in a criminal street gang, in the sense of participation that is more
than nominal or passive; second, knowledge that the gang‟s members engage in or have
engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.”
(People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) Defendant is quite mistaken in
seeing the entirety of the record as going no further than whether he possessed the
weapon found at 1690 Dutton Street.
       A reasonable inference from Detective Sinigiani‟s testimony—and one we must
assume was drawn by the jury (People v. Albillar, supra, 51 Cal.4th 47, 59-60; People v.
Zamudio, supra, 43 Cal.4th 327, 357)—was that defendant was acting as a conduit for
gang communications from within the prison system. No inference was needed for the
jury to accept Sinigiani‟s testimony that defendant was involved in Norteño fights. Or
for the jury to accept his testimony that defendant‟s possession of the weapon would
“constitute a benefit for the gang.”



                                              9
       In light of the foregoing, we conclude that none of defendant‟s challenges to either
his subdivision (a) conviction or his subdivision (b)(1) enhancement is sound.
                 The Jury’s Determination That Defendant Possessed
                 The Firearm Is Supported By Substantial Evidence

       Defendant next contends that his conviction for violating former section 12021
should be overturned because there no substantial evidence that he possessed the firearm
found in his sister‟s home. Defendant‟s contention to this effect is based on People v.
Sifuentes (2011) 195 Cal.App.4th 1410 The evidence in that case was summarized as
follows:
       “On the morning of May 11, 2007, Costa Mesa police officers checked the registry
of a motel near Santa Ana known for drug and prostitution activities. They learned
Sifuentes, a convicted felon with an outstanding „no-bail‟ parole arrest warrant, had
rented room 215.
       “The motel clerk gave the officers a master room key. The officers knocked on
room 215‟s door, identified themselves, stated they had a warrant, and demanded entry.
Receiving no response after two attempts, and seeing the window blinds move and
hearing movement inside, the officers entered the room. Sifuentes lay on top of the bed
nearest the door. He attempted to rise, but one of the officers pushed him down on the
bed and ordered him to stay down.
       “Lopez, also a convicted felon, knelt on the floor on the far side of the second bed,
facing the officers. There were two women in the room. One lay naked under the sheets
of the bed closest to Lopez. The other stood near the bathroom, wrapped in a towel.
       “An officer ordered Lopez to raise his hands. Lopez raised only his left hand and
looked down at his right, with his arm bent at the elbow. After three demands to raise his
right hand, he complied. An officer later found a loaded .40 caliber semiautomatic
handgun under the mattress next to Lopez.” (Sifuentes, supra, at pp. 1413-1414.)
       Like defendant, Sifuentes was convicted of violating former section 12021. The
Court of Appeal reversed, concluding that substantial evidence did not establish that
Sifuentes had the right of control of the gun and thus constructive possession of it.


                                             10
(Sifuentes, supra, at pp. 1417-1420.) All the prosecution had was that “Sifuentes and
Lopez simply occupied a motel room with two females,” and “mere proximity to the
weapon, standing alone, is not sufficient evidence of possession.” (Id., at pp. 1418,
1417.) Sifuentes is factually distinguishable.
       There could be no dispute that in Sifuentes the gun was discovered in a room with
four people. The prosecutor‟s argument that Sifuentes possessed the gun was badly
undercut by the undisputed evidence that the gun was located closer to Lopez than to
Sifuentes. Here, the initial issue for the jury was whether they believed the testimony of
defendant‟s sister‟s that many people had access to the bedroom where the gun was
discovered, and thus many people could presumably have put it there. Again, we must
assume that the jury did believe Detective Sinigiani‟s testimony that he found only
information, i.e., the “paperwork,” linking defendant to the contents of the room in which
the gun was found, and did not believe his sister‟s testimony that the room was
nonexclusive. Moreover, this was not space impersonally and transitorily occupied, but a
room in a residence occupied by a relative, a room where defendant had indisputably
stayed and to which he had continual access. Very much to the point, defendant was
there at the house when it was searched. And the “paperwork” found was not just old
bills, but very important documents necessary for day-to-day existence, hardly the sort of
material one would put in a place where quick retrieval would be difficult. In sum, that
defendant had the right to control the contents of the room would be a reasonable
deduction we must assume the jury made. (People v. Zamudio, supra, 43 Cal.4th 327,
357.) Or, put another way, that the jury agreed with Detective Sinigiani‟s testimony that
defendant “exercised the same control over that firearm” as he did over “all of his
personal . . . items in that room.”
       The issue here was whether defendant had constructive possession of the weapon.
That issue can be decided on the basis of “circumstantial evidence and any reasonable
inferences drawn from such evidence.” (People v. White (1969) 71 Cal.2d 80, 82-83.)
Unlike Sifuentes, the record here has more than ample circumstantial evidence from



                                            11
which the jury could conclude that defendant had constructive possession of the weapon
found at 1690 Dutton Street on the afternoon of April 22, 2010.

                       The Trial Court Did Not Err In Answering
                                  The Jury’s Question

       The jury was instructed with CALCRIM 2511 as follows: “Two or more people
may possess something at the same time. [¶] A person does not have to actually hold or
touch something to possess it. It is enough if the person has control over it or the right to
control it, either personally or through another person.” After the jury began deliberating,
the following occurred between court and counsel:
       “THE COURT: We have a question from the jury . . . [¶] I have . . . instruction
2511. Additionally, on that instruction, the third paragraph from the bottom, someone in
pen had bracketed a sentence that says: „A person does not have to actually hold or touch
something to possess it. It is enough if the person has control over it or the right to
control it, either personally or through another person.‟ So that was attached to the note.
The note reads, „One, we are looking for clarification of Section 2511 . . . paragraph third
from the bottom beginning with quote “A person does not have to ” end quote.
       “Very grammatically correct and precise in how they are stating their question.
       “ „Number two does readily access imply control?‟ And it is signed by four jurors.
       “ . . . My first inclination is the words that they are asking for further definition
have normal common English meaning, that there is no technical or further description
the Court would give . . . . [¶] In sum and substance I would answer you are to give the
common English meaning to the words and in following 2511.”
       The prosecutor agreed with this approach, but defense counsel believed that under
Sifuentes, “I think you are going to have to tell them readily accessible does not equate to
control.”
       The court then advised: “What I would propose is to say something along these
lines, because it is their specific question. I didn‟t mean to suggest that I wasn‟t going to
help them. [¶] The question is does readily access imply control. That‟s a jury question.


                                              12
What I intend to answer then is whether ready access convinces you beyond a reasonable
doubt that the defendant has control or a right to control pursuant to instruction 2511 is a
jury question, or words to that effect.”
       The prosecutor has no objection to this, but defendant insisted that the jury was
asking “a legal question, does access . . . readily access or accessible equal control.” And
for answering that inquiry, “I think it is appropriate for pinpoint instruction at this point,
access versus control.” The court declined to do so:
       “THE COURT: I‟m not going to give them a pinpoint instruction. 2511 captures
exactly what you said in [is] the law, that‟s what they are to find . . . . I think 2511
adequately explains the law and is consistent with Sifuentes. I don‟t think anything is
additionally helpful. I think it is too early in the deliberations to give a pinpoint or move
them along . . . . So I intend to give them essentially what I just read.”
       Defendant contends the trial court “erroneously denied [his] motion for a pinpoint
instruction on possession.” This is somewhat misleading because a true pinpoint
instruction would have been an issue in the instructions the jury received before it began
deliberating. Defendant does not claim that CALCRIM is legally erroneous. A pinpoint
instruction is not required if it involves an issue adequately addressed by other
instructions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.) CALCRIM 2511
told the jury that tactile contact was not required to establish possession. The idea that a
person could be in the near vicinity of a weapon, could have access to the weapon, and
yet not be in possession, would appear logically, if conversely, to be included within that
principle.
             The Trial Court Erred In Denying Defendant’s Romero Motion

       Defendant was sentenced to the mitigated term of 16 months for violating former
section 12021. That figure was doubled to 32 months by command of the Three Strikes
law (§ 1170.12) because he had a 2006 conviction for aggravated assault (former § 245,




                                              13
subd. (a)(1)).5 The court imposed, but stayed, a three-year gang-related enhancement for
that offense (§ 186.22, subd. (b)(1)), and 16 consecutive months for the substantive
offense of active gang participation (§ 186.22, subd. (a)). Defendant was sentenced to a
consecutive term of five years under section 667, but the one-year term under section
667.5 was stayed.
       Defendant's final contention is that his Romero motion was erroneously denied.
He does not challenge the denial on the usual grounds that his prior is the relatively rare
prior felony conviction that is outside the spirit of the Three Strikes law. (See, e.g.,
People v. Carmony (2004) 33 Cal.4th 367, 376-378.) Instead, he argues the purely legal
point that his 2006 conviction for assault by means of force likely to produce great bodily
was not properly treated as a strike. Defendant is correct.
       “In and of itself, the wobbler offense of assault by means of force likely to
produce great bodily injury (§ 245, subs. (a)(1) [currently subd. (a)(4)]), when a felony
sentence is imposed, does not constitute a „serious felony‟ (§ 1192.7, subs. (c)(8)) for
purposes of the Three Strikes law” unless it is accompanied by either the personal
infliction of great bodily injury or the personal use of a firearm. (People v. Feyrer (2010)
48 Cal.4th 426, 443, fn. 8 and decisions cited; § 667.5, subd.(c)(8).) In 2006, defendant
was convicted of his third gang-related assault, but it was his first and only conviction as
an adult. Neither personal use of a firearm nor personal infliction of great bodily injury
was involved. Shortly before defendant was paroled after serving two years for that
offense, the sentencing court made an order finding this offense “to be a non serious
felony.” Thus, the trial court here was incorrect in characterizing defendant‟s prior “as a
strike because . . . 245, by law, qualifies as a strike.” This error requires a remand for
resentencing.




       5
        Since 2012, the substance of former subdivision (a)(1) has been in
subdivision (a)(4).


                                              14
                                      DISPOSITION
       The sentence is vacated, and the cause remanded for resentencing. The judgment
of conviction is affirmed in all other respects.

                                                   _________________________
                                                   Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.




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