Filed 6/30/15 P. v. Contreras CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW J. CONTRERAS,

Defendant and Appellant.

B256400

(Los Angeles County

Super. Ct. No. KA103067)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Mike Camacho, Judge. Affirmed.

David W. Scopp, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Jason Tran and 

Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________
2

Andrew J. Contreras appeals from his convictions for being a felon in possession 

of a firearm and ammunition. Contreras contends the trial court erred in admitting 

testimony that the arresting officer read on a motel register that Contreras had rented the 

room where the gun was found and that a motel clerk directed police to that room. 

Contreras argues this testimony was inadmissible hearsay and it violated his 

confrontation clause rights. Contreras also contends the trial court erred in imposing 

a five-year enhancement to his sentence. We find no error, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Police Find a Beretta in the Toilet Tank

On September 4, 2013 around 1:30 in the afternoon, West Covina Police Officer 

Abel Hernandez went to the Wayside Inn, a motel of dubious repute. He and his partner 

knocked on the door of room 1251and defendant Andrew Contreras opened the door. 

A woman named Adriana Rodriguez was in the room with Contreras. The officers 

apparently asked Contreras and Rodriguez to have a seat outside the room. Shortly after 

2:00 p.m. West Covina Police Department Detective Eric Melnyk arrived at the 

Wayside. Melnyk found a black Samsung flip phone in the room. Later, at the station,

Contreras told detectives the phone was his.

Melnyk scrolled through text messages on the phone and found texts that 

suggested to him Contreras might have a gun somewhere. Melnyk and Hernandez 

searched the room, and Melnyk found a .25 caliber Beretta semi-automatic pistol in 

a plastic bag in the toilet tank. The gun was loaded with eight rounds, one in the 

chamber and seven in the magazine. When Melnyk examined the gun, he discovered 

there was something wrong with the extractor. According to Melnyk, the live round in 

the chamber would have fired but the gun then would have jammed.

Melnyk arrested Contreras. Contreras told Melnyk he had been at the motel “just 

a short time, maybe an hour or so.” Authorities found no DNA or fingerprints on the 

gun.

 

1 A housekeeper at the motel testified at trial that the number outside room 125 

was “25” because the “1” was missing.
3

2. The Charges

The People charged Contreras with violations of Penal Code2sections 29800, 

subdivision (a)(1) (felon in possession of a firearm) and 30305(a)(1)(unlawful 

possession of ammunition). The People alleged that Contreras had committed the 

crimes for the benefit of, at the direction of, or in association with a criminal street gang 

under section 186.22, subdivision (b)(1)(A). The People also alleged that Contreras had 

a prior conviction for criminal threats, a strike under California’s Three Strikes Law,

and four prison priors (§ 667.5, subd. (b)). The People alleged a five-year prior under 

section 667, subdivision (a)(1) as well.

3. Contreras’ Motion in Limine and Stipulation to the Legality of the 

Search of Room 125

Jury trial began in January 2014. The court bifurcated the trial on Contreras’ 

priors. Contreras’ attorney also stipulated that Contreras had a prior felony conviction; 

thus the jurors would not learn the nature of the conviction. Contreras’ counsel then 

made a motion to exclude evidence that Contreras was on parole at the time, was 

wearing an ankle bracelet as a parolee, and was found at the motel because of the 

bracelet:

“The way they got to where my client was in the motel room is he was

wearing an ankle bracelet. He was being monitored. They saw him that he

was at a place that he wasn’t supposed to be, which is this motel. They asked

officers to drive by and check it out, which they did. That’s why we are here.” 

Counsel continued, “I would stipulate they are there legally. In other words, I’ll 

stipulate to any foundational defects that might arise regarding how they got there.” 

The prosecutor responded she did not “necessarily have a problem keeping that out as 

long as we can form some sort of stipulation with regard to the fact that the officers 

were there lawfully and conducted a lawful search of the defendant.”

 

2 All further statutory references are to the Penal Code.
4

The court then asked the prosecutor if she intended to call a witness to testify “as 

to perhaps who secured the room, who rented the room,” “[m]aybe a motel clerk or 

manager, someone who could testify from documents that on a certain day in question 

someone, perhaps Mr. Contreras or someone he was with, actually rented that room to 

help establish some type of possessory interest to the contents.” The prosecutor 

answered,

“Yes, I have testimony of one of the officers who went there. He went to

the office to locate the room where Mr. Contreras was staying because his 

parole agent had contacted Detective Melnyk and said based on the GPS 

Mr. Contreras was at the Wayside Motel. So I would introduce testimony

through I believe it’s Officer Hernandez that he went to the office, made

that inquiry, based on that inquiry he went to room 125 where he contacted

Mr. Contreras and I also have text messages on his cell phone asking a female to

meet him at the Wayside Motel that day and he gives the room number of 125.”

The court asked if the prosecutor had “that type of documentation” she intended 

to introduce that “Mr. Contreras rented the room per this document on this date in 

question . . . . ” The prosecutor responded she did not have “a hotel clerk that was 

there,” but “it would be an exception to [the] hearsay [rule] to explain the officer’s 

subsequent actions if he goes to the office, inquires of the clerk if there is a room rented 

to an Andrew Contreras and based on information received from that clerk went to 

room 125 and that’s where he contacted Mr. Contreras.”

Defense counsel then said, “Well, the officer’s discussion with the manager is 

obviously hearsay. I had the manager under subpoena. . . . I am still working on the 

maid. . . . So I don’t think there is going to be a huge foundational issue as to 

whether or not my client rented the room. There is a receipt.” (Emphasis added.) 

The court said, “Okay.” Defense counsel continued, “I have a copy of it. But I’m not 

handing it over because it’s not my job. That’s where I’m at on that issue. I’m more 

than happy to stipulate to everything else that we discussed.” (Emphasis added.) The 

court then verified that both counsel were willing to stipulate “that law enforcement in 
5

this case, West Covina police, had legal authority to search room no. 125 on the date in 

question.” The prosecutor answered, “That’s fine, that they had -- that they were legally 

entitled to search Mr. Contreras and room 125.” The court concluded, “So, essentially, 

I’m granting your motion, [defense counsel], to sanitize the parole search issue and to 

keep that away from the jury because we’ve agreed to a stipulation.” (Emphasis 

added.)

The court then asked if there were any other issues and said to the prosecutor, 

“[Defense counsel] did mention that he would object on hearsay grounds to information 

that your officer who came on scene received from some type of attendant at the motel 

to track down the room in which Mr. Contreras was occupying.” The prosecutor said, 

“Right.” The court continued, “You’re saying it’s coming in for a nonhearsay purpose.” 

The prosecutor answered, “Correct. To explain why the officer then went to room 125 

and didn’t conduct perhaps a door-to-door knock of each motel room to find Mr. 

Contreras but was directed to where Mr. Contreras was.” The court stated,

“I would tend to agree. Essentially overrule an objection for hearsay

grounds because even if the information was not true that Mr. Contreras

had anything to do with room 125, it would still explain the reason the

officer went to that particular room in order to contact the occupants, 

whether or not that information is true or not. So it’s not being really

received for the truth of the matter asserted. It’s just to help explain why

the officer went to that particular room as opposed to any other room 

within the complex, but not for any other reason. I think we can resolve

that issue, it would be nonhearsay evidence.”

Defense counsel said he “anticipated the court’s ruling” and “submitted.”

4. The Trial

In his opening statement, defense counsel told the jury, “What happened was my 

client rented a room, which was called the Wayside Motel. . . . So my client rents what 

appears to be room 25 because that’s what it says on the door. I have the pictures. If 

they are calling it 125, so be it. It’s not an issue. He did, in fact, rent that room. There 
6

is no question about that. (Emphasis added.) But the question is, did he know whether 

or not this gun that [the prosecutor] has alluded to was in the toilet tank.” After 

discussing the burden of proof and other issues, defense counsel concluded, “I think 

after you [listen to all the evidence] you’re going to find there is more than a reasonable 

doubt that my client knew and therefore had constructive possession of the .25-caliber 

weapon, which was inside a toilet tank hidden in a location that is famous for crime and 

they just can’t prove it.”

In the jury’s presence, the prosecutor and defense counsel stipulated “that the 

West Covina police officers lawfully responded to the Wayside Motel on September 4, 

2013, and conducted lawful searches of the defendant, his property, and room 125.”

Officer Hernandez testified at trial that he went to the Wayside Motel that 

afternoon. This exchange followed:

“Q: When you got to the Wayside Motel, did you go and speak to someone

in the front office?

A: Yes, ma’am.

Q: When you spoke to that person in the front office, did you inquire as to

whether there were any rooms registered to an Andrew Contreras?

A: Yes, ma’am.

Q: And without telling me what the clerk said, did the clerk respond to you?

A: She did.

Q: And based on the information that you received from the clerk, did you go

to a specific room?

A: Yes, ma’am.

Q: What room was that?

A: 125.

Q: Did the clerk direct you to that room?

A: She pointed out where it was.

[Defense counsel:] That’s hearsay. Move to strike.

The court: Overruled. She pointed in the direction of the room that he . . .
7

The witness: Yes, your honor.”

Defense counsel did not ask for a limiting instruction on this testimony -- for 

example, that the motel clerk’s pointing to room 125 was being admitted only to explain 

Hernandez’s subsequent conduct -- nor did the court give one. Hernandez then testified 

that he and his partner knocked on the door of room 125 and Contreras came to the 

door.

On cross-examination, defense counsel asked Hernandez these questions:

Q: . . . [Y]ou go and you talk to the clerk and you ask specifically for a name; 

right?

A: Correct.

Q: And the name is?

A: Andrew Contreras.

Q: Okay. And the clerk then points to a room; is that correct?

A: Correct.

Q: That would be room 125?

A: Yes, sir.

Hernandez also testified on cross-examination that he did not ask the motel clerk 

for a copy of any registration form that Contreras had signed. Hernandez said, “I didn’t 

feel there was a need to get a copy after I confirmed who was there.” Defense counsel 

asked Hernandez whether he had “checked the register” to see who had rented the room 

before Contreras. Hernandez answered, “I checked who was registered to that room.” 

Hernandez conceded on cross-examination that it was “a possibility” that someone had 

hidden the gun in room 125 before Contreras even got there.

On redirect, the prosecutor asked Hernandez if the motel clerk had “provided” 

“a copy of the registration” and if he had read it. Hernandez said yes. The prosecutor 

asked, “And the registration that you reviewed indicated that Mr. Contreras 

actually . . . rented that room; correct?” Defense counsel objected as “leading.” The 

court overruled the objection. The court then asked the witness, “You reviewed the 

registration; correct?” Hernandez said yes. The court continued, “All right. Based 
8

upon your review, did you determine whether Mr. Contreras rented that room in relation 

to the day the weapon was found [sic]?” Hernandez answered, “I don’t know when. 

I just knew it was registered to Mr. Contreras.” The court asked, “Okay. At the time 

the weapon was found?” Hernandez said, “Correct.”

Detective Melnyk testified at trial both as a percipient witness and as the 

People’s gang expert. Melnyk told the jury that Contreras was a member of the 

West Covina 13 gang with a moniker of Travieso or “Travie.” Melnyk said Contreras 

had joined the gang when he was 13 or 14 years old. Using Contreras’ Samsung phone, 

Melnyk testified about a number of exchanges of text messages on September 3 and 4 

between Contreras and a younger gang member named Javier Vega, whose moniker 

was Bad Boy. According to Melnyk, the text messages suggested that Contreras was 

having some difficulty with members of the rival El Monte Flores gang. Contreras 

texted Vega, “I need to borrow that cuete you got.” Melnyk testified “cuete” was 

a slang Spanish word for firearm. Vega texted back, “ ‘[W]here you at.’ ” Contreras 

texted, “ ‘At the Wayside Inn.’ ” Vega responded, “ ‘All right. I’m headed over 

there.’ ”

In closing, the prosecutor argued, “I don’t think there is going to be an issue 

about whether [Contreras] possessed [the gun]. It’s in the hotel room that he’s 

registered to. . . . It’s in his hotel room.” Defense counsel told the jury Contreras 

“obviously was desperate” as the text messages showed but there was no evidence that 

Vega ever even arrived at the Wayside Motel or that he had a gun. Counsel argued that 

officers did not bother to get a copy of the motel guest register or to determine how long 

Contreras had been in the room. Counsel said Contreras could have been in the room 

only ten minutes. Counsel told the jury, “That gun could have been in that tank for 

a month. We don’t know.” Counsel argued that -- even though the gun did not have to 

be in working order for the crime to be committed3-- that the gun had a jammed 

extractor was inconsistent with the People’s theory that Contreras called a fellow gang 

 

3

See CALCRIM 2511.
9

member to bring him a gun to defend himself against rival gang members: “Why if 

you’re a big gang and you have pass-around weapons would you have a weapon that 

didn’t work when you knew a fellow gang member was in a serious situation. The 

answer is you wouldn’t; therefore, that gun did not belong to my client. My client never 

admitted it belonged to him.”

In rebuttal, the prosecutor argued that Officer Hernandez did “look[] at” the 

register -- even though he did not get a copy -- and “it said Mr. Hernandez [sic] checked 

into room 125. Confirmed it with the clerk.”4

5. The Verdict and Sentencing

The jury convicted Contreras on both counts and found the gang allegation true. 

Contreras waived jury on his priors trial and the court conducted a bench trial on the 

priors. The court sentenced Contreras to 12 years in the state prison, calculated as the 

upper term of three years on the felon in possession of a gun count, doubled because of 

the strike prior, plus one one-year prison prior under section 667.5, subdivision (b), plus 

a five-year prior under section 667, subdivision (a)(1). The court imposed and stayed 

the upper term of four years on the gang enhancement and struck the remaining three 

one-year prison priors.

APPELLANT’S CONTENTIONS

Contreras contends Officer Hernandez’s testimony that the motel clerk directed 

him to room 125 when he asked about Contreras and that he saw Contreras’ name on 

the motel register for that room was inadmissible hearsay. Contreras argues the trial 

court violated his confrontation clause rights by admitting that testimony and his trial 

attorney was constitutionally ineffective for failing to object to the testimony. Contreras 

also contends the trial court incorrectly imposed the five-year enhancement under 

section 667, subdivision (a).

 

4

The prosecutor later corrected herself: “If I said Hernandez before I apologize. 

It’s Mr. Contreras checked into that room.”
10

DISCUSSION

1. Contreras’s Trial Counsel Conceded Contreras Had Rented 

Room 125, and We Will Not Second-Guess that Apparently 

Sound Strategic Decision

The trial court stated it was admitting Officer Hernandez’s testimony that the 

motel clerk directed him to room 125 when he asked about Contreras not for its truth 

but to explain “why the officer went to that particular room.” The court overruled 

defense counsel’s hearsay objection. Defense counsel did not request -- nor did the 

court give -- a limiting instruction. Hernandez also testified that the motel clerk had 

shown him a copy of the registration and it indicated Contreras had rented the room. 

Defense counsel objected solely on the ground that the prosecutor’s question was 

leading, and the court overruled the objection.

Even assuming the trial court admitted Hernandez’s testimony about the motel 

clerk “pointing out” where the room was for its truth and that it therefore was hearsay, 

Contreras has shown no error. First, through his attorney Contreras stipulated that 

police legally searched him and room 125. Implicit in this stipulation is an 

acknowledgment that Contreras had something to do with room 125. Contreras

proposed and entered into this stipulation so the jury would not find out that he was on 

parole, that he had search conditions as a parolee, that his ankle bracelet notified his 

parole officer he was at the Wayside, and that his parole officer then called West Covina 

police to go to the motel and look for Contreras. Second, defense counsel himself told 

the jurors in his opening statement that there was “no question” that Contreras had in 

fact rented that room. On cross-examination, defense counsel himself elicited testimony 

from Hernandez that the motel clerk pointed to room 125 when he asked for Contreras. 

Plainly, Contreras’ trial counsel fashioned his defense on the theory that the motel was 

a marginal place frequented by unsavory characters who rented rooms on an hourly 

basis, that anyone could have put the gun in the toilet tank at any time, and that there 

was no evidence Contreras even knew it was there. Counsel elicited testimony that, 

even though the gun and ammunition were tested for fingerprints and DNA, none were 
11

found. Counsel essentially criticized Hernandez for not checking the register to see who 

had rented room 125 before Contreras. Defense counsel elicited -- without objection --

hearsay testimony by Detective Melnyk that Contreras had told him he had been at the 

motel “just a short time, maybe an hour or so.” Counsel subpoenaed and presented as 

a witness the motel maid, who testified that she had not cleaned room 125 before the 

police came to the Wayside that day and that she routinely did not look into toilet tanks 

when she cleaned rooms.5

This strategic decision by defense counsel appears sound. Had he not entered 

into the stipulation and had he not conceded that Contreras had rented room 125, the 

prosecution could have presented evidence that Contreras was on parole and that his 

anklet alerted authorities that he was at the motel -- a place he was not supposed to be. 

Officer Hernandez simply could have testified that he knocked on the door of room 125 

-- without explaining how he got there -- and that Contreras opened the door. This is 

not a case in which the gun was found in a room registered to Contreras but Contreras 

was not there, and the only evidence linking Contreras to the room was the hearsay 

statement -- or gesture -- of the clerk and the motel register. Contreras was in the room 

when police arrived. Moreover, the jury would in any event have heard Melnyk’s 

testimony that Contreras admitted the phone police found in room 125 was his and that 

 

5 On the second day of trial, a witness named Ramesh Godhasara appeared in court 

with defense counsel, apparently in response to a defense subpoena. Godhasara seemed 

to be some sort of manager at the motel. Godhasara told the court he did not speak 

much English and his native language was Gujaradi. Defense counsel told the court his 

investigator had interviewed Godhasara and he had given a copy of the witness’s 

statement to the prosecutor. Counsel said the motel had changed hands in August 2013, 

he had not been able to get any information from the new owner, and Godhasara 

“basically had very little information.” Counsel told the court he was going to call 

Godhasara “only . . . for a couple of questions,” and then he was going to call the maid 

“just to say that it is not normal for them to check the toilet tanks in the rooms unless 

there is some specific reason to do so.” The court ordered Godhasara to return the next 

day but defense counsel presumably decided the maid’s testimony was sufficient.
12

Contreras had texted Vega that he was at the Wayside Motel.

6

 In short, any claim by 

Contreras’ lawyer that his client had nothing to do with room 125 would have cost him 

credibility with the jury.

An appellant who claims his trial counsel’s assistance was so defective as to 

require reversal of a conviction must show (1) that counsel’s representation was 

inadequate, and (2) that there is a reasonable probability that the result would have been 

more favorable absent counsel’s deficiencies. (Strickland v. Washington (1984) 

466 U.S. 668, 687; People v. Marquez (1992) 1 Cal.4th 553, 574-575.) Contreras has 

shown neither here. Reviewing courts “ ‘presume that counsel rendered adequate 

assistance and exercised reasonable professional judgment in making significant trial 

decisions.’ ” (People v. Prieto (2003) 30 Cal.4th 226, 261 (Prieto); People v. Holt 

(1997) 15 Cal.4th 619, 703. Cf. Cullen v. Pinholster (2011) __U.S.__, 131 S.Ct. 1388, 

1404, 1407 [reviewing court “begin[s] with the premise that ‘under the circumstances, 

the challenged action [] might be considered sound trial strategy’ ” and “affirmatively 

entertain[s] the range of possible ‘reasons . . . counsel may have had for proceeding as 

they did’ ”].)

In sum, under any applicable standard, any error in admitting evidence that 

Contreras had rented room 125 was not prejudicial. (Compare People v. Watson (1956) 

46 Cal.2d 818 with Chapman v. California (1967) 386 U.S. 18.)

2. The Trial Court Did Not Violate Contreras’ Confrontation Clause Rights

Because Neither the Motel Register nor the Motel Clerk’s Statement 

to Police that Contreras Was in Room 125 Was Testimonial

As noted, defense counsel did not object on hearsay or confrontation clause 

grounds to Hernandez’s testimony that the motel register showed Contreras had rented 

room 125. Counsel did object to Hernandez’s testimony that the clerk directed him to

 

6 As noted, the prosecutor told the court during the pretrial motion hearing that in 

a text message to a woman Contreras gave the room number 125 at the Wayside. It may 

be that Melnyk did not testify to this particular text because defense counsel already had 

admitted in his opening statement there was “no question” Contreras had rented that 

room.
13

that room, but -- both before and after that objection -- conceded Contreras’ relationship 

with room 125. As discussed, there appear to be sound strategic reasons for counsel’s 

decisions. In any event, any objection to this evidence based on the confrontation 

clause would have been meritless. Counsel therefore was not constitutionally 

ineffective for failing to make those objections. “[C]ounsel’s decision to forgo 

implausible arguments or objections does not constitute deficient performance.” 

(Prieto, supra, 30 Cal.4th at p. 261; see also People v. Ochoa (1998) 19 Cal.4th 353, 

435.)

The motel’s guest register is not testimonial within the meaning of Crawford v. 

Washington (2004) 541 U.S. 36, 56 (Crawford) [business records are not “testimonial”]. 

Motels keep records of guests for billing purposes and other business reasons, not to 

provide evidence for the police. “The fact that such records may, at times, become 

relevant evidence in a criminal trial, or even that such future use may be foreseeable, 

does not change the purpose for which the records were prepared.” (People v. Taulton 

(2005) 129 Cal.App.4th 1218, 1224.)

Nor was the motel clerk’s statement or gesture that Contreras was in room 125 

“testimonial.” At that juncture, police were not investigating Contreras for possession 

of a gun or ammunition. (Cf. People v. Blacksher (2011) 52 Cal.4th 769, 812

(Blacksher) [“ ‘police interrogation’ ” traditionally means “ ‘ “interrogations solely 

directed at establishing the facts of a past crime, in order to identify (or provide 

evidence to convict) the perpetrator” ’ ”].) Instead, they were looking for a parolee who 

appeared to be somewhere -- as his lawyer put it -- “he wasn’t supposed to be.” When 

the primary purpose of police questioning is to aid police in meeting an ongoing 

emergency that may pose a threat to public safety, statements in response to those 

questions are not “testimonial” under Crawford. (Michigan v. Bryant (2011) 

562 U.S. __, 131 S.Ct. 1143; Blacksher, supra, 52 Cal.4th at p. 816 [primary purpose of 

police questions and victim’s statements was to locate shooter at large, “not to create an 

out-of-court substitute for trial testimony”]; People v. Romero (2008) 44 Cal.4th 386.) 

Here, Officer Hernandez was searching for a parolee at large. The motel clerk’s 
14

indication to officers that Contreras was in room 125 was not testimonial and therefore 

the admission even of hearsay evidence did not violate Contreras’ confrontation clause 

rights.

3. The Trial Court Correctly Imposed the Five-Year Enhancement

As noted, the jury found the gang allegation true and the trial court found -- at 

the conclusion of the priors trial -- that Contreras had a prior strike conviction. 

Accordingly, the court imposed a five-year enhancement to Contreras’ sentence under 

section 667, subdivision (a).

Contreras’ challenge to the imposition of the five-year prior borders on the 

unintelligible. Contreras seems to argue that, because his prior strike conviction for 

criminal threats was not “gang-related,” his current conviction for being a felon with 

a gun, with a true gang enhancement, is not a “serious felony” under the Three Strikes 

Law. Contreras is mistaken.

The trial court found Contreras had suffered a conviction in Case No. KA095221 

for criminal threats in violation of section 422. That conviction is a strike. (§ 1192.7, 

subd. (c)(38).) The jury found the gang allegation true in this case. That finding makes 

Contreras’ violation of section 29800, subdivision (a)(1) a serious felony under the 

Three Strikes Law. (§ 1192.7, subd. (c)(28).) If the current crime is a serious felony 

and the prior strike is a serious felony, the court must impose the enhancement under 

section 667, subdivision (a) in addition to any three strikes consequences. (People v. 

Turner (1998) 67 Cal.App.4th 1258, 1269.)

Contreras takes out of context language in People v. Briceno (2004) 34 Cal.4th 

451 (Briceno). The question there was whether section 1192.7, subdivision (c)(28)’s 

definition of a “serious” felony as “any felony offense, which would also constitute 

a felony violation of Section 186.22” applied only to the substantive offense of active 

participation in a criminal street gang under section 186.22, subdivision (a), or whether 

it also applied to any felony offense committed for the benefit of a gang under 

section 186.22, subdivision (b)(1). The Court held the latter construction to be the 

correct one.
15

A jury convicted Briceno of several robberies and found a gang allegation true. 

Briceno had prior convictions for unlawful firearm possession, also with a true gang 

allegation. The Court concluded that Briceno’s prior conviction -- with the gang 

allegation -- was a serious felony under section 1192.7, subdivision (c)(28). The Court 

stated, “Section 1192.7, subdivision (c), . . . comes into play only if the defendant 

reoffends, at which time any prior felony that is gang related is deemed a serious 

felony. Thus, any felony that is gang related is not treated as a serious felony in the 

current proceeding, giving effect to section 186.22(b)(1)(A).” (Briceno, supra, 

34 Cal.4th at p. 465.)

So in Briceno -- unlike in this case -- the prior strike was a strike only because of 

the gang allegation. Here, criminal threats is a strike whether or not committed for 

a gang’s benefit. As the court explained in People v. Bautista (2005) 125 Cal.App.4th 

646, the essential holding of Briceno is that a court cannot use a gang enhancement to 

impose both a five-year enhancement under section 667, subdivision (a) and a five-year 

enhancement under section 186.22, subdivision (b)(1)(B): that would be

“impermissible bootstrapping.” (Briceno, supra, 34 Cal.4th at p. 465.) The trial court 

here was careful to avoid any bootstrapping. The court imposed the upper term of four 

years under section 186.22, subdivision (b)(1)(A) -- which applies to gang crimes that 

are neither violent nor serious -- not the five years under section 186.22, 

subdivision (b)(1)(B). And, even though it could have imposed both the five-year prior 

under section 667, subdivision (a) and the four-year enhancement under section 186.22, 

subdivision (b)(1)(A) (People v. Martinez (2005) 132 Cal.App.4th 531, 537), the court

stayed the four-year punishment for the gang enhancement. Contreras has shown no 

sentencing error.
16

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EGERTON, J.

WE CONCUR:

EDMON, P. J.

ALDRICH, J.

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.