1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

MARIO ANTONIO LOPEZ,

Defendant and Appellant.

 A133997

 (Sonoma County Super. Ct.

 No. CR1001212

ORDER MODIFYING OPINION AND 

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 
2

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. 
1

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,

v.

MARIO ANTONIO LOPEZ,

Defendant and Appellant.

 A133997

 (Sonoma County

 Super. Ct. No. SCR581958)

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].)
2

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.” 
3

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.
4

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. 
5

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, 
6

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.
7

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 
8

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 
9

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.” 
10

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. 
11

(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 
12

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. 
13

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, 
14

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). 
15

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.