Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. INF046168 John J. Ryan, Judge. (Retired judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.)
HUFFMAN, Acting P. J.
A jury convicted Juan Gallardo of two counts of robbery (Pen. Code, § 211; counts 1 & 2), one count of attempted willful, deliberate and premeditated murder (§ 654/187, subd. (a); count 3), two counts of assault with a firearm (§ 245, subd. (a)(2); counts 6 & 7), one count of discharging a firearm at an occupied building (§ 246; count 9), one count of unlawful possession of a firearm (§ 12021, subd. (e); count 10), one count of unlawful possession of ammunition (§ 12316, subd. (b)(1); count 11), and one count of actively participating in a criminal street gang (§ 186.22, subd. (a); count 12). The jury also found true allegations that Gallardo personally used a firearm as to counts 1 and 2 (§ 12022.53, subd. (b)) and that as to count 3 he personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and acted as a principal for the benefit of, at the direction of, and in association with a criminal street gang (12022.53, subd. (e)). As to counts 3, 6, 7, 9, 10, 11 and 12, the jury also found true allegations that those offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist criminal conduct by gang members. (§ 186.22, subd. (b).)
All statutory references are to the Penal Code unless otherwise specified.
Because the trial court had granted Gallardo's motion to dismiss the charged count 5 attempted murder and the count 8 assault with a firearm and their respective enhancement allegations for lack of evidence at the end of the prosecution case, those charges did not go to the jury. The jury found Gallardo not guilty of the charged count 4 attempted murder and made no findings on its attendant enhancement allegations.
In a bifurcated proceeding, the trial court found true the allegation that Gallardo's prior juvenile adjudication for second degree robbery constituted a strike under the "Three Strikes" law (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). Then, after denying his motion for a new trial, the court sentenced Gallardo to prison for a total of 90 years four months, consisting of an aggregate 21 year-four month determinate term and a 69-year-to-life aggregate indeterminate sentence. The court thereafter addressed an assortment of trailing cases that Gallardo had accumulated while incarcerated on the instant crimes. After Gallardo pled guilty to attempting to escape, possessing drugs and alcohol, and vandalism, the court sentenced him to time served on those counts and dismissed the remaining misdemeanor cases on the prosecutor's motion.
Gallardo appeals, contending the trial court erred as a matter of law when it found his 1999 juvenile adjudication for second degree robbery qualified as a strike offense under the provisions of section 667, subdivision (d)(3) because the court could not have made the required finding under paragraph (D) of that section that he was a ward of the court as his robbery offense was not included in Welfare and Institutions Code section 707, subdivision (b), at the time the matter was adjudicated, and that the lock-in provision of Proposition 21, section 667, subdivision (h), did not change this fact. Gallardo also asserts the court abused its discretion when it refused to strike his prior juvenile strike for sentencing purposes, and in the event this court finds a forfeiture, he claims his trial counsel was ineffective for failing to argue at sentencing that the court should dismiss his strike offense.
Although Gallardo originally raised the additional claims that the use of his prior juvenile adjudication to double his sentence under the three strikes law violated his due process, notice and jury trial rights under the United States Constitution to preserve them for review, he withdraws these claims in his reply brief. Gallardo concedes that the constitutional issues were resolved against him by our Supreme Court in People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen), that the United States Supreme Court has recently denied certiorari in that case, and that the decision in Nguyen is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In supplemental briefing, Gallardo additionally contends his counts 10 and 11 convictions, respectively for unlawfully possessing a firearm and for unlawfully possessing ammunition, must be reversed because the evidence is insufficient as a matter of law to satisfy the elements of section 12021, subdivision (e) as he was never adjudged a ward of the juvenile court in any prior juvenile court proceedings for committing an offense listed in Welfare and Institutions Code section 707, subdivision (b). Alternatively, Gallardo claims that if this court finds he forfeited his right to challenge the sufficiency of that element of counts 10 and 11, then his counsel provided him ineffective assistance by stipulating that he had previously been convicted of a felony and failing to challenge the sufficiency of the evidence as to those counts. We reject Gallardo's various assertions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because Gallardo's sufficiency of the evidence challenge regarding counts 10 and 11 only addresses the legal aspects of the elements based on his having a prior felony conviction and not the underlying facts concerning those counts, and the evidence supporting the other charged offenses is not relevant or necessary to the issues presented on this appeal, we merely summarize the pertinent factual and procedural history to give context to our discussion of those legal issues.
In the present case, in three separate incidents on January 13, 2004, Gallardo, along with a fellow gang member, robbed two different men and attempted to murder a rival gang member by shooting him outside a tattoo shop. A subsequent search of Gallardo's home after his arrest uncovered an arsenal of weapons and ammunition.
Gallardo was initially charged in separate cases, but eventually the robbery charges were consolidated in a fourth amended information with the 10 charged offenses allegedly committed for the benefit of a criminal street gang, including counts 10 and 11, regarding unlawful possession of a firearm and unlawful possession of ammunition. The fourth amended information also alleged that Gallardo "was on or about August 24, 1999, ... convicted of the crime of robbery, a serious and violent felony, in violation of... section 211, within the meaning of... sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1)."
Count 10 alleged in part that Gallardo was charged with violating section 12021, subdivision (e), "a felony in that on or about January 16, 2004, ... he, being a person under the age of 30 (thirty) years who was adjudged a ward of the juvenile court within the meaning of section 602 of the Welfare and Institutions Code because he committed an offense listed in subdivision (b) of section 707 of the Welfare and Institutions Code, did willfully and unlawfully, own and have in his possession and under his custody and control a certain firearm."
In limine, the court granted Gallardo's counsel's motion to bifurcate the juvenile prior robbery strike allegation and Gallardo waived the right to have the jury determine its validity. The prosecutor subsequently raised the issue of whether Gallardo would stipulate to having previously been convicted of a felony for that element of counts 10 and 11 or whether the People would have to prove that element by showing the certified conviction for a robbery. Defense counsel asked the court to just read those counts to the jury as sanitized by the pleadings and suggested an evidentiary hearing on the matter when the prosecutor got to his proof of those counts in his case in chief. Counsel represented that if all the findings that had to have been made by the former court for a juvenile felony to qualify had been met, then he would stipulate to the fact of a previous felony conviction.
When the prosecutor commented that the transcript of the earlier juvenile proceedings showed the prior robbery adjudication was a felony, Gallardo's counsel objected that the offer of proof was deficient on its face to show a proper waiver of rights in order for the court to have taken and accepted the plea to a robbery. He also noted that he intended to move to strike the prior juvenile adjudication as well. When the court responded that the issue of striking the prior was a collateral matter, and the prosecutor added that he intended to also use the juvenile prior as a predicate offense for the count 12 gang offense, Gallardo's counsel further objected, saying the main issue was whether the juvenile prior adjudication met the criteria under Welfare and Institutions Code section 707, subdivision (b) and whether the document submitted as proof was sufficient to establish Gallardo's adjudication "as a ward of the court, which is part of the pleading language of Count 10." The trial court noted that robbery had been under the relevant code section since March 8, 2000, that this case was after that date so Gallardo's robbery finding in juvenile court "is the same as a felony conviction, " and that as a result of that offense, he was committed to the youth authority and "continued a ward of the court." The court then told counsel to do further research and that it was not making any findings at that time.
Later, during trial, outside the jury's presence, the prosecutor advised the court that it was not going to use Gallardo's earlier robbery as a predicate offense for the gang offense or allegations, and that the parties had "signed a stipulation to stipulate to the previous felony conviction." At the conclusion of the prosecution case, after the prosecutor entered into evidence the stipulation, which stated that Gallardo "has been previously convicted of a felony in Case Number IJ5284 in the County of Riverside, " the court told the jurors that "Counts 10 and 11 have as an element the prior conviction of a felony. And so that's an element that Mr. Gallardo and his attorney and the prosecutor have stipulated to. You don't have to find that. You have to find the other elements. [¶] So as to those two counts, possession of firearm, possession of ammunition, there is a stipulation that Mr. Gallardo did suffer a prior felony conviction. [¶]... That is something that you have to accept."
The court subsequently reminded the jurors of the stipulation when it instructed them as to the law regarding counts 10 and 11. It also read to the jury an additional stipulation of counsel with regard to count 11 only that Gallardo had been convicted in August 1999 of a felony. As mentioned above, the jury's verdicts also included findings that Gallardo was guilty of both counts 10 and 11.
The court specifically instructed the jury with CALCRIM No. 2511 regarding count 10 as follows: "The defendant is charged in Count 10 with unlawfully possessing a firearm. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant possessed a firearm; [¶] 2. The defendant knew that he possessed the firearm; [¶] 3. The defendant had previously been convicted of a felony; and [¶] 4. The defendant was under 30 years old at the time he possessed the firearm.
At the bifurcated court proceeding on whether Gallardo's prior juvenile adjudication in October of 1999 for second degree robbery constituted a strike, his counsel pointed out that the documents regarding the prior stated that the court had found "none" of the offenses fell under Welfare and Institutions Code section 707, subdivision (b). When the court commented that such finding was consistent with the law at that time and that the law had since changed, counsel agreed that his research revealed that the only question before the court at this time was whether there was "sufficient proof that [Gallardo] was made a ward of the Court." Counsel submitted the matter, saying he did not think he was prevented in any way from bringing a motion under Romero to strike the prior adjudication at the time of sentencing.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
After commenting that "we'll deal with that at the time it comes, " the trial judge observed that:
"[Gallardo] was 17 at the time so he qualifies there. The offense is now listed [under Welfare and Institutions Code, section] 707[, subdivision] (b) and there is no problem. So it was a violent felony. It is a violent felony now, although at the time, it was [Welfare and Institutions Code, section] 707. He was found to be [a] fit and proper subject to be dealt with under the juvenile laws. And he was adjudged a ward because he committed an offen[s]e which is now [under Welfare and Institutions Code, section] 707[, subdivision] (b). And if the Appellate Court wants to change that, they can. But I think that's the law now."
When neither counsel had anything further to add to the discussion, the court ruled the prior robbery was true beyond a reasonable doubt and constituted a strike as alleged.
At sentencing, Gallardo's counsel submitted the matter, commenting that he was aware that the court "has specific knowledge of the sentencing parameters and of the particulars of the ramifications by the Code as to which applicable statute controls and applies." After sentencing Gallardo as a second strike defendant for his crimes arising on January 13, 2004, the court exercised its discretion in the interests of justice to strike the strike for sentencing purposes with regard to several trailing cases Gallardo had accumulated while in custody pending trial in this matter. Gallardo's counsel specifically requested the court do so with regard to two of the pending felony cases.
DISCUSSION
I
GALLARDO'S 1999 JUVENILE ADJUDICATION QUALIFIES AS A STRIKE OFFENSE
Gallardo contends the trial court erred as a matter of law when it determined his prior juvenile adjudication for second degree robbery in 1999 constituted a strike offense under section 667, subdivision (d)(3). Relying on People v. Garcia (1999) 21 Cal.4th 1 (Garcia) and In re Jensen (2001) 92 Cal.App.4th 262, 266 (Jensen), he specifically argues that even though the requirements under subdivisions (A), (B), and (C) of that section have been satisfied, the requirement under subdivision (D), that "[t]he juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, " had not been met because second degree robbery was not listed as an offense under Welfare and Institutions Code section 707, subdivision (b) at the time it was adjudicated.
These three subdivisions of section 667, subdivision (d)(3) must be met, in addition to subdivision (D), in order for a prior juvenile adjudication to constitute a prior felony conviction for purposes of sentence enhancement: "(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense[;] [¶] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a felony[; and] [¶] (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law." (§ 667, subd. (d)(3), subp. (A), (B), & (C).)
Further, although Gallardo recognizes that on March 8, 2000, Proposition 21, the "Gang Violence and Juvenile Crime Prevention Act of 1998, " became effective and, among other things, added second degree robbery to the list of offenses included in Welfare and Institutions Code section 707, subdivision (b) and added a lock-in provision as set forth in section 667.1, which changes the cut-off date in the three strikes law to allow certain offenses that were previously not listed as strikes, but subsequently became strikes after the passage of Proposition 21, to be used against a defendant at a later trial as long as the new offense committed by the defendant occurred on or after the effective date of Proposition 21, he asserts such lock-in provision does not apply to paragraph (D) of section 667, subdivision (d)(3). We reject Gallardo's various arguments.
Section 667.1 provides in pertinent part that "Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by the act...." Subdivision (h) of section 667 states that "all references to existing statutes in subdivisions (c) to (g) [of section 667] are to statutes as they existed on June 30, 1993."
Gallardo concedes that the section 667.1 cut-off date applies to subdivision (B) of section 667, subdivision (d)(3).
Basically, Gallardo raises the same claim as raised and rejected in People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, that he was not "adjudged a ward of the juvenile court" because he committed "an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code" as required by section 667, subdivision (d)(3)(D). (Andrades, supra, 113 Cal.App.4th at pp. 824-830.) Like the defendants in Andrades, Gallardo's strike allegation is a prior juvenile robbery adjudication that was not listed in Welfare and Institutions Code section 707, subdivision (b) at the time of its adjudication. (Andrades, supra, at p. 825.) However, because "robbery" was then added to the list of offenses in that section with the enactment of Proposition 21 in March 2000, at the time Gallardo committed his current offenses in 1994, robbery was necessarily " 'an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.' (§ 667, subd. (d)(3)(D).)" (Andrades, supra, at p. 825.)
Based on its review of Proposition 21, including the ballot summary, the relevant Penal Code and Welfare and Institutions Code sections, People v. Bowden (2002) 102 Cal.App.4th 387 (Bowden), People v. James (2001) 91 Cal.App.4th 1147, Garcia, supra, 21 Cal.4th 1, and Jensen, supra, 92 Cal.App.4th 262, the court in Andrades rejected the argument, which Gallardo makes on this appeal, that paragraph (D) of section 667, subdivision (d)(3) requires that the wardship adjudication for an offense listed in Welfare and Institutions Code section 707, subdivision (b) be made at the time of that previous juvenile adjudication. (Andrades, supra, 113 Cal.App.4th at pp. 823-830.) In doing so, the court in Andrades noted, consistent with the holding in Bowden, supra, 102 Cal.App.4th 387, that Proposition 21's addition of section 667.1 changed the effective cut-off date for qualifying offenses, including those amended to the statutes by Proposition 21, to the offenses that existed on the effective date of the act. (Andrades, supra, at pp. 826-827.) The court in Andrades also explained that neither Garcia nor Jensen, both relied upon by Gallardo, was relevant to the issue because neither court considered a situation where the truth of the juvenile prior adjudication for three strikes purposes was determined after the passage of Proposition 21, as those cases involved defendants whose current crimes were committed before Proposition 21 was enacted. (Andrades, supra, at pp. 828-829.)
In interpreting section 667.1, the court in Andrades, following rules of statutory interpretation, found that:
"On its face, section 667.1 applies to 'all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667.' Nothing in the language of section 667.1 limits its application or excepts paragraph (D)'s reference to Welfare and Institutions Code section 707, subdivision (b). There is no ambiguity in section 667.1; it applies to 'all references to existing statutes in subdivisions (c) to (g), inclusive.' This clearly includes paragraph (D)." (Andrades, supra, 113 Cal.App.4th at p. 928.)
The court in Andrades also found its analysis comported with "the intent of the electorate in passing Proposition 21. '[T]he general object of the initiative is to address the problem of violent crime committed by juveniles and gangs.' [Citation.] To achieve this object, among other things, Proposition 21 added a number of crimes-including robbery-to the list of violent and serious felonies that qualify as strikes. [Citation.] Therefore, it would be inconsistent with the intent of the electorate if we were to hold that a prior juvenile adjudication for robbery does not qualify as a strike in cases where the current crimes were committed after the passage of Proposition 21." (Andrades, supra, 113 Cal.App.4th at pp. 829-830.)
Although Gallardo in his reply brief acknowledges that Andrades resolved the issue he now raises against him, he contends Andrades and the cases upon which the court in Andrades relied in resolving the issue, were not well reasoned, were decided by appellate courts in other jurisdictions and should not be followed. We have carefully reviewed Andrades and those other cases and agree with their holdings and the analysis expressed in Andrades on the issue. We, therefore, find that, "by virtue of section 667.1, a prior juvenile adjudication of robbery qualifies as a strike in cases where the current offense was committed after the passage of Proposition 21 on March 7, 2000" (Andrades, supra, 113 Cal.App.4th at p. 830), and that this finding also applies with regard to section 667, subdivision (d)(3)(D). Accordingly, because Gallardo's current offenses were committed after the passage of Proposition 21, we conclude the trial court correctly determined that his 1999 prior juvenile adjudication of second degree robbery qualified as a strike.
Contrary to Gallardo's argument that accepting this interpretation renders paragraph (D) of section 667, subdivision (d)(3) "superfluous, " such paragraph still requires that the wardship be based on a juvenile adjudication that is for an offense listed under Welfare and Institutions Code section 707, subdivision (b) at the time the defendant committed his current crimes in order for it to be considered a strike prior.
II
QUESTION OF STRIKING THE STRIKE AND ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL
Gallardo next contends the trial court abused its discretion when it "refused" to strike his prior juvenile strike conviction for sentencing purposes. As the People point out in their respondent's brief, because Gallardo admits he failed to "invite the court [below] to dismiss" his prior strike under section 1385, he has forfeited his right to raise the abuse of discretion claim on appeal. (People v. Carmony (2004) 33 Cal.4th 367, 375-376, citing People v. Scott (1994) 9 Cal.4th 331, 352-353.)
We note the record clearly reflects that the trial court was aware it could strike the prior on its own motion if the interests of justice had warranted it.
Moreover, Gallardo's alternative claim, that if we determine the issue is forfeited his counsel provided him ineffective assistance, fails on this record. Generally, in order to show that defense counsel has provided ineffective assistance at trial, the burden is on the defendant to show both " 'that [his] counsel's representation fell below an objective standard of reasonableness; and... that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, " 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' [Citation.]" ' [Citation.]" (People v. Holt (1997) 15 Cal.4th 619, 703.)
Thus even assuming Gallardo's trial counsel was somehow deficient in failing to invite the court to strike Gallardo's prior strike conviction under Romero, supra, 13 Cal.4th 497, which we do not find, Gallardo has failed to carry his burden of showing how such a motion could possibly have succeeded. Gallardo merely notes the relatively minor nature of his prior juvenile adjudication, where he and a cohort, demanded money from the victim, grabbed the victim's arm, and then took the victim's keys and sunglasses, and ignores other relevant factors the court must consider when deciding whether to dismiss a strike prior under Romero, including the defendant's background, the nature of his present offense or offenses, and other individualized considerations. (Romero, supra, 13 Cal.4th at p. 531.) As our Supreme Court in People v. Williams (1998) 17 Cal.4th 148 explained, the court in considering whether to strike a prior must determine "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strike] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Id. at p. 161.)
Here, Gallardo's criminal history includes not only the juvenile strike offense, but also another juvenile adjudication for robbery, a CYA commitment, and two subsequent probation violations. As an adult, he has been convicted of carrying a concealed dirk or dagger in addition to his present convictions for several armed robberies, assaults with firearms and attempted murder with attendant gang, firearm and great bodily injury enhancements. Gallardo further committed numerous in-custody offenses, including escape attempts, possessing alcohol and drugs and vandalism while pending trial in this matter. His history demonstrates that at least since 1997, he has been unable to live a crime-free life and has continued to commit crimes even while incarcerated. Simply stated, nothing about his current or past crimes indicates that he is outside the spirit of the three strikes law.
Because Gallardo has failed to show a reasonable probability that had his counsel filed a Romero motion, there was a "realistic possibility" it would have been granted by the trial court, he has failed to establish that he was prejudiced by his counsel's decision not to do so. (See People v. Fuhrman (1997) 16 Cal.4th 930, 945.) No ineffective assistance of counsel is shown.
III
LEGAL SUFFICIENCY OF COUNTS 10 AND 11 AND CLAIM OF COUNSEL'S INEFFECTIVENESS
Finally, Gallardo contends his convictions for unlawfully possessing a firearm (count 10) and unlawfully possessing ammunition (count 11) must be reversed for insufficiency of the evidence as a matter of law to satisfy the elements of section 12021, subdivision (e) because he was never adjudged a ward of the juvenile court in any prior juvenile proceedings for committing an offense listed in Welfare and Institutions Code section 707, subdivision (b), which was an element of both counts 10 and 11 as charged. Alternatively, as with his previous claim, Gallardo asserts he was denied the effective assistance of counsel if this court determines he has forfeited the issue by his trial counsel's agreement to stipulate that he had previously been convicted of a felony for purposes of that element in counts 10 and 11, instead of challenging the sufficiency of the evidence to support a prior felony conviction finding. We conclude the issue is forfeited and no ineffective assistance of counsel is shown on this record.
As noted in the above factual and procedural background, Gallardo's counsel represented in limine that he would stipulate to the fact of a previous felony conviction for purposes of that element in counts 10 and 11, if, upon further research, he determined that all of the findings necessary to qualify that juvenile robbery adjudication had been met. Subsequently, near the end of trial, Gallardo's counsel entered into a written stipulation that was read to the jurors, telling them they must accept as proven the fact that Gallardo had suffered a prior felony conviction for purposes of that element in counts 10 and 11. Such stipulation was then included in the jury instructions given on counts 10 and 11 before deliberations. Because Gallardo's counsel stipulated that Gallardo had previously been convicted of a felony, Gallardo has forfeited his right to complain about the sufficiency of the evidence for that element of counts 10 and 11 on appeal. (See People v. Jaquish (1966) 244 Cal.App.2d 444, 449-450, disapproved on another point in People v. Rivers (1967) 66 Cal.2d 1000.)
Moreover, even if the issue were not forfeited, it would be meritless. As we have already determined, Gallardo's prior juvenile adjudication for second degree robbery constituted a strike because it was an offense listed in Welfare and Institutions Code section 707, subdivision (b) at the time of the current offenses and he was subsequently adjudged a ward of the juvenile court because of such listed offense. (Andrades, supra, 113 Cal.App.4th at p. 826.) Because the type of offense that a defendant has to have committed to support the element of a prior felony conviction for counts 10 and 11 before being prohibited from possessing firearms and ammunition, is worded essentially the same as that for a strike finding based on a prior juvenile adjudication, the only logical conclusion is that the same analysis applies. Consequently, because Gallardo had been adjudged a ward of the juvenile court because he committed an offense which at the time of his current offenses was listed in Welfare and Institutions Code section 707, subdivision (b), such was also a prior felony conviction sufficient to satisfy that element necessary for both counts 10 and 11. (Andrades, supra, 113 Cal.App.4th at p. 826; Bowden, supra, 102 Cal.App.4th at p. 837.)
Section 12021, subdivision (e) provides in pertinent part that "[a]ny person who (1) is alleged to have committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, ... and (2) is subsequently adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, ... shall not own, or have in his or her possession or under his or her custody or control, any firearm until the age of 30 years." This element is also incorporated in section 12316 for the prohibition of possessing ammunition.
Any reasonable counsel researching the matter would have thus concluded that Gallardo's 1999 juvenile adjudication for robbery qualified as a prior felony conviction for purposes of that element for counts 10 and 11, and would have made a sound tactical decision in stipulating to the fact of a prior felony conviction in order to sanitize it. Gallardo simply cannot show on this record that his counsel was ineffective in so stipulating or that he was prejudiced by the stipulation. No ineffective assistance is shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., HALLER, J.
Count 11 accused Gallardo in relevant part of "a violation of... section 12316, subdivision (b), subsection (1), a felony, in that on or about January 16, 2004, ... he did willfully and unlawfully, being a person prohibited from owning and possessing a firearm under... sections 12021 and 12021.1, and Welfare and Institutions Code sections 8100 and 8103, own, possess, and have under his custody and control ammunition and reloaded ammunition."
[¶] The term firearm is defined in another instruction. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has the right to control it, either personally or through another person. [¶] The defendant and the People have stipulated, or agreed, that the defendant was previously convicted of a felony. This stipulation means that you must accept this fact as proved. [¶] Do not consider this fact for any other purpose. Do not speculate about or discuss the nature of the conviction."
The court instructed the jury on count 11 with CALCRIM No. 2591: "The defendant is charged in Count 11 with unlawfully possessing ammunition. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant possessed ammunition; [¶] 2. The defendant knew he possessed the ammunition; [¶] 3. The defendant had previously been convicted of a felony; and [¶] 4. The previous conviction was within 10 years of the date the defendant possessed the ammunition."