1

Filed 11/20/20 P. v. Williams CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCUS D. WILLIAMS,

Defendant and Appellant.

C090246

(Super. Ct. No. 18FE001615)

A jury found defendant Marcus D. Williams guilty of assault with a semiautomatic 

pistol and unlawful possession of a firearm, and found true defendant personally used a 

firearm during the commission of the assault. The trial court further found true a prior 

strike allegation. Defendant was sentenced to 27 years to life plus a consecutive 14 

years. 

On appeal, defendant raises several ineffective assistance of counsel arguments, 

argues the trial court erred in finding his prior juvenile conviction constituted a strike, 
2

and asserts his one-year enhancement under Penal Code1section 667.5 must be stricken.

He further asserts the cumulative effect of the errors in this case deprived him of due 

process and his right to a fair trial. The People concede the one-year enhancement must 

be stricken because it was dismissed prior to judgment but assert defendant’s remaining 

contentions have no merit. 

We accept the People’s concession and strike the one-year enhancement. In all 

other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the trial evidence regarding the shooting and investigation here and 

provide further factual detail pertaining to defendant’s arguments in the pertinent portions 

of the discussion, as necessary.

At around 10:00 p.m. on January 26, 2018, F. S. ran out of gas while driving 

home. He pulled a bicycle from the back of his truck and started pedaling toward his 

neighborhood. F. S. was riding his bicycle on 64th or 65th Avenue in Sacramento. 

Although that evening was a blur for F. S. because he was depressed and under the 

influence of alcohol, F. S. recalled a big car “pulled up on [him]” as he was riding his 

bicycle home. The car then “reversed and started following [him]” in reverse. At some 

point the car turned around and continued following him. F. S. saw a flash and heard 

gunshots “hitting stuff around [him].” F. S. fell off his bicycle and ran away. He 

ultimately ran into an open garage, where he got into a physical altercation with a male 

resident who thought F. S. was an intruder; the person forced F. S. to sit on the ground 

and wait for the police. F. S. did not know who was driving the car that followed him 

and he had never seen defendant prior to trial. 

1 All further statutory references are to the Penal Code unless otherwise specified.
3

Sacramento Police Officer Derek Calabrese2 picked up F. S. on 63rd Avenue that 

evening and drove him home. On the way, F. S. identified a blue Chevy Tahoe parked in 

the driveway of a house on 15th Street as the car that chased him earlier that evening. 

F. S. further told Officer Calabrese that the Chevy Tahoe had hit another vehicle at some 

point during the incident. Officer Calabrese saw police vehicles at the home on 15th 

Street; at that point, he believed the officers were investigating an unrelated incident. 

The 15th Street address was defendant’s mother’s house, where defendant lived. 

Earlier that evening, defendant had borrowed his mother’s blue Chevy Tahoe. 

Defendant, accompanied by his girlfriend, S. T., returned the car about an hour later with 

damage to the front panel on the passenger’s side; defendant told his mother he had hit 

another car or another car had hit him (his mother could not recall). Defendant’s mother 

was upset and called 911 to report the accident. 

Sacramento Police Officer Jyotis Hasegawa responded to the 911 call. 

Defendant’s mother told Officer Hasegawa that defendant was possibly on drugs and had 

a weapon. Officer Hasegawa searched the Chevy Tahoe parked in the driveway and 

found an empty casing from a “45 auto” bullet on the front passenger floorboard. He 

contacted Sacramento Police Officer Robert Hamm, who was investigating the incident 

involving F. S., and told Officer Hamm that he had possibly found the car involved in the 

alleged shooting. 

Prior to the phone call, Officer Hamm was at a house on 65th Avenue, where a 

damaged vehicle confirmed F. S.’s statement that an accident had occurred. Officer 

Hamm also found a bicycle, which F. S. said belonged to him. Officer Hamm searched 

the 65th Avenue area for evidence of a shooting but found none. 

2

It appears the officer misspoke when he testified he picked up F. S. on 63rd Street. 
4

Officer Hamm went to defendant’s mother’s house, which was approximately two 

to three blocks away from the 65th Avenue location. There, he found a “live” .45-caliber 

bullet in the driveway. Officer Hamm was accompanied by Sacramento Police Officer 

Michael Novak. 

Officer Novak spoke with S. T. at defendant’s mother’s house; S. T.’s statement 

was recorded on Officer Novak’s body-worn camera. Officer Novak testified S. T. was 

visibly upset and appeared to be scared, asking several times whether she could remain 

anonymous and looking over her shoulder because she was afraid defendant was listening 

to their conversation. Officer Novak’s body-worn camera footage was played for the 

jury. 

In her statement to Officer Novak, S. T. said she was driving with defendant when 

they saw a man in a truck looking at them. Defendant drove past the man and turned 

around. The man got out of his truck, grabbed a bicycle, and began pedaling away. 

Defendant put the car in reverse to “catch him.” Defendant then turned the car around, 

told S. T. to move out of the way, shot at the man across S. T.’s body, and drove into a 

camper. S. T. saw the man limping and she thought he had been shot. Defendant drove 

off and told S. T. to tell his mother that someone had hit them. When S. T. and defendant 

arrived at defendant’s mother’s house, defendant took a shower. Defendant took the gun 

into the bathroom with him and later moved the gun into the kitchen. S. T. said she 

believed “the guy we shot at” was going to kill them and that he had a gun. 

S. T. directed Officer Novak to a loaded gun on top of the refrigerator. The gun 

was a .45-caliber, high-point semiautomatic handgun containing seven .45-caliber rounds 

in the magazine and one .45-caliber round in the chamber. The spent casing found in the 

car and the live round found on the driveway were both “Sig 45 autos,” the same as the 

rounds found in the gun. 

A police officer performed a gunshot residue test on defendant at his mother’s 

house. The test revealed a few particles consistent with gunshot residue on defendant’s
5

hands, which, according to a forensic expert, was consistent with someone firing a gun, 

taking a shower, and then picking up a gun and moving it. 

DISCUSSION

I

Defendant Fails To Show Ineffective Assistance Of Counsel Pertaining

To S. T.’s Testimony And Her Prior Statement To Police

Defendant asserts his trial counsel was ineffective for failing to raise inadmissible 

character evidence objections to S. T.’s trial testimony affirming she had previously told

the police that defendant smoked methamphetamine and was paranoid all the time prior 

to the crime and she saw defendant carrying a handgun around the house while 

“ ‘tripping on meth.’ ” He further asserts that, although S. T.’s testimony that defendant 

had committed prior acts of domestic violence against her “may arguably have been 

relevant to her credibility,” his counsel was ineffective for failing to seek an appropriate 

limiting instruction. He believes his trial counsel was additionally ineffective for failing 

to assert inadmissible hearsay and character evidence objections to the portion of S. T.’s

recorded police statement in which S. T. said defendant had previously possessed and 

used a gun. Also as to S. T.’s recorded statement, defendant argues his counsel was 

ineffective for failing to object to the inflammatory evidence of his prior acts of domestic 

violence and failing to seek a limiting instruction. 

A criminal defendant asserting his or her lawyer failed to deliver what the 

Constitution promises bears the burden of proving the attorney’s performance fell below 

an objective standard of reasonableness under prevailing professional norms and that it is 

reasonably likely the result would have been different if the attorney’s performance was 

up to par. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 

693].) “[I]f the record sheds no light on why counsel acted or failed to act in the 

challenged manner, we must reject the claim on appeal unless counsel was asked for an 

explanation and failed to provide one, or there could be no satisfactory explanation for 
6

counsel’s performance.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) We presume 

“ ‘counsel’s performance fell within the wide range of professional competence and that 

counsel’s actions and inactions can be explained as a matter of sound trial strategy.

Defendant thus bears the burden of establishing constitutionally inadequate assistance of 

counsel.’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1189.)

We conclude defendant did not receive ineffective assistance of counsel. His 

counsel’s actions and inactions can be explained as a matter of trial strategy.

A

Background

1

S. T.’s Testimony

S. T. testified she started dating defendant in August or September 2017. Their 

relationship was rocky around the end of 2017 or beginning of 2018 because S. T. 

believed defendant was unfaithful and disrespectful. S. T. said “[they] had like some 

physical stuff” such as “fighting, throwing stuff at each other, just being crazy.” When 

asked if defendant hit her, S. T. responded: “I wouldn’t say hit me, but, like, you know, 

just might be physical, like try to restrain me or something like that.” 

On January 26, 2018, defendant picked up S. T. from her apartment at some point 

in the evening. S. T. generally recalled getting into defendant’s car and driving to 

defendant’s mother’s house. She could not recall the specifics of what happened that 

evening because she “was on drugs and drinking all the time.” Specifically, S. T. could 

not recall seeing a bicycle, seeing someone in another car, or speaking with police 

officers. When the prosecution asked S. T. whether she remembered talking to police 

officers that day, she responded: “No. I know that the -- all these things happened, 

because obviously, you know, there is a police report and everything like that, but me, 

like, having a conversation, what I said, where my head was at, I can’t tell you. I don’t 

know. I don’t remember.” 
7

Pertinent to defendant’s arguments, the following exchange then occurred:

“Q So do you remember telling the officer you had been dating [defendant] for 

about five months now?

“A I probably did say that, because that would have been approximately true 

around the time.

“Q And that ever since you started dating him you have known that he has been

smoking meth and is really paranoid all the time?

“A Yep.

“Q And that also when you started dating him you would see him carry a handgun 

around the house, but you thought it was just because he was tripping on meth?

“A Probably.

“Q And that you had been trying to get out of the relationship for a little while 

now and have been becoming more and more terrified because of his actions?

“[DEFENSE COUNSEL]: Objection, this is leading.

“THE COURT: Overruled. I’ll allow it as a hostile witness.

“THE WITNESS: Like I said. I don’t remember. I know at that point in time I 

was trying to get away from him. I was mad at him for different things. So I could have 

said anything, and I was high myself and paranoid all the time.” 

Following this testimony, S. T. answered further questions presented by the 

prosecution regarding her police statement. Defense counsel objected that S. T. was 

“speculating as to what the responses are.” The trial court admonished S. T., “[t]he 

question is did you say these things.” S. T. responded, “I know I must have said them 

because they are on the report. Do I remember saying them? No.” Thereafter, S. T. 

responded, “I don’t remember” or “I don’t recall” or a variation of the foregoing, to the 

remaining questions regarding her police statement. The remaining questions included 

whether S. T. told the police officer: (1) defendant told S. T. he was her pimp and she 

needed to pay him what he was owed; (2) defendant always threatened her “with sending 
8

all of his boys and bitches on [her]”; (3) defendant previously choked her; (4) defendant 

previously dragged her by the hair; and (5) defendant left her threatening voice mails. 

On cross-examination, defense counsel asked S. T. whether she had any memory 

of speaking to the police that evening or making the statements the prosecution had read 

to her. S. T. said she did not. Defense counsel asked S. T., “[h]ow would you describe 

your state of mind back on the day that this all happened?” S. T. responded: “I wasn’t --

I don’t -- I wasn’t stable, because I was all over the place, and I was staying up all night

and then going to work high, and -- you know what I mean? Like just I wasn’t in my 

right mind.” 

On redirect examination, the prosecution asked S. T.: “you told the officers that 

[defendant] had beat you up you don’t know how many times and called you things like a 

whore?” She responded: “Yeah, I guess.” The prosecutor then asked: “And he put a 

knife to your throat?” S. T. responded: “I don’t remember him putting a knife to my 

throat.” The prosecutor further asked: “And you told the officers that all you can say is 

if this shit is on paperwork you are dead, my kids and my mom are in danger?” S. T. 

responded: “I don’t remember saying that.” 

On recross-examination, defense counsel asked S. T. whether she had previously 

made false claims against an ex-boyfriend; S. T. responded she had, and the man was 

charged with a crime, but the charges were later dismissed. 

2

S. T.’s Police Statement

Following S. T.’s testimony, the recording of her statement to Officer Novak was 

played in its entirety. Pertinent to defendant’s arguments, in that recording, S. T. said: 

defendant “shot out” a sliding glass door with a gun a few months prior; defendant told 

her he had another gun; defendant previously threw a gun “at the roof over [S. T.’s] 

house” to hide it from the police and defendant later retrieved it; and defendant told her 

“he shot somebody” previously. S. T. further told Officer Novak: defendant put a note 
9

on her door stating, “ ‘You need to come see me today by 10 o’clock. If you don’t, it’s 

gonna be a problem. That’s how women and kids,’ you know, ‘innocent people get 

hurt’ ”; defendant previously stabbed her tires; she once had a temporary restraining 

order against defendant; and defendant would chase her car if she did not pull over upon 

his demand and “we done been like high speed chases.” 

3

Defense’s Closing Argument

During closing argument, defense counsel attacked S. T.’s police statement on 

several grounds. Defense counsel focused on S. T.’s demeanor in the recording, which

the jury observed, suggesting she was under the influence when she made the statements, 

and pointing out S. T. testified that, at the time she gave the statements, she suffered from 

anxiety and depression, used large amounts of alcohol to medicate herself, and used 

methamphetamine, ecstasy, methadone, or any other drug she could find to make herself 

feel better. He noted defendant’s mother testified S. T. “was out of her head” and “all 

over the place.” 

Defense counsel also argued S. T.’s statements revealed she was paranoid and 

hallucinating, and S. T. had a motive to lie when she made the statement because she was 

angry with defendant for leaving her voice mails of him having sex with other women. 

As to S. T.’s domestic violence statements, defense counsel argued: “[The 

prosecutor] talked about this is a domestic violence issue and all of those things. Well, 

obviously in these times those catch phrases are inflammatory, no question. They are not 

right, that conduct, no doubt. But this is not morality court. This is not whether you like 

somebody. It’s whether these charges, these specific charges, have been proved. And 

you hear[d] [S. T.] go through over a third of the interview talking about all this stuff. 

Dudes down the street, this history of violence. She talks about I called the police before 

and they came and they arrested him, but he got let go, and the officers talk about, well, 

that’s a bummer and all these different things. She is making this stuff up.” 
10

Defense counsel further argued S. T.’s testimony at trial was that she had no 

memory of the night she gave the statements to the police and “all she could tell you as 

she sits here today honestly is I don’t remember any of that.” He said S. T. “pieced some 

things together, as she told you, based on her review of some reports, but she has no 

memory of that night.” 

B

The Record Reveals Trial Counsel Had A Strategy And Made Tactical Decisions

We collectively address defendant’s first two ineffective assistance of counsel 

arguments regarding S. T.’s testimony pertaining to her prior statements to police that 

defendant used methamphetamine and was paranoid, and she had observed him carrying 

a gun around the house while “ ‘tripping on meth.’ ” Defendant finds it inconceivable 

that any competent lawyer would fail to object to the foregoing portions of S. T.’s 

testimony. We find no merit in this argument.

We surmise defense counsel’s strategy in dealing with S. T.’s testimony was

twofold. First, counsel elicited from S. T. that her affirmative responses to the 

prosecution’s questions regarding her prior police statement were all in error because, as 

counsel said in closing argument, S. T. had “no memory of that night.” Thus, S. T. could 

neither confirm nor deny at trial what she had told the police that evening. Second, 

defense counsel sought to discredit S. T.’s statements to the police as a whole by 

suggesting S. T. was under the influence, paranoid, and hallucinating when she gave the 

statements, and focusing on her lack of credibility, bias, and motive to lie. Defense 

counsel painted S. T. as a liar and a vindictive person willing to falsely accuse another of 

a crime at the time she spoke to the police. We deduce counsel sought not to draw

attention to S. T.’s specific statements to the police by objecting to the individual 

questions.

“The choice of when to object is inherently a matter of trial tactics not ordinarily 

reviewable on appeal.” (People v. Frierson (1991) 53 Cal.3d 730, 749.) “Hindsight is 
11

‘highly deferential.’ [Citation.] ‘In evaluating defendant’s showing we accord great 

deference to the tactical decisions of trial counsel in order to avoid “second-guessing 

counsel’s tactics and chilling vigorous advocacy by tempting counsel to ‘defend himself 

against a claim of ineffective assistance after trial rather than to defend his client against 

criminal charges at trial . . . .’ ” ’ ” (People v. Padilla (1995) 11 Cal.4th 891, 936.) “ ‘In 

the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions 

do not appear on the record, we will not find ineffective assistance of counsel on appeal 

unless there could be no conceivable reason for counsel’s acts or omissions.’ ” (People v. 

Nguyen (2015) 61 Cal.4th 1015, 1051.) Here, the record reveals a tactical reason for not 

objecting to S. T.’s challenged testimony.

Defendant’s third claim of ineffective assistance of counsel centers on S. T.’s 

testimony pertaining to defendant’s prior acts of domestic violence. Defendant argues S. 

T. “testified that [defendant] had beaten her up multiple times, he called her names, 

flaunted his unfaithfulness, and engaged in mutual violence with her.” He concedes “her 

testimony regarding her relationship with [defendant], and whether she had been 

subjected to prior violence at his hands, was relevant” because S. T. had, in effect, 

recanted her prior statements to the police, which inculpated defendant. Defendant’s 

claim of error is that his counsel failed to seek a limiting instruction as to this testimony, 

and, in his view, there was no tactical or strategic reason for failing to do so. We 

disagree.

Defendant misstates the scope of S. T.’s testimony. S. T. did not testify that 

defendant “had beaten her up multiple times” or “called her names.” S. T. answered 

“[y]eah, I guess” when asked whether she “told the officers that [defendant] had beat you 

up you don’t know how many times and called you things like a whore.” (Italics added.) 

As explained ante, the record reveals defense counsel had a strategy in dealing with 

S. T.’s testimony regarding her prior police statement. During closing argument, defense 

counsel specifically addressed S. T.’s domestic violence statements to police, stating 
12

“[s]he’s making this stuff up.” Defense counsel may have reasonably considered a

limiting instruction as to this portion of S. T.’s testimony inconsistent with the defense’s 

theory that none of her statements to the police were truthful.

As to S. T.’s testimony that defendant “flaunted his unfaithfulness, and engaged in 

mutual violence with her,” even assuming a limiting instruction would have been 

justified (which we need not and do not decide), counsel could have reasonably believed 

a limiting instruction would have added little to the jury’s understanding of the case and 

would have done more harm than good by directing the jury to focus on S. T.’s 

testimony. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 934 [no ineffective 

assistance of counsel because “a limiting instruction would have added little to the jury’s 

understanding of the case [and] the decision not to request one was a reasonable tactical 

choice by defense counsel to avoid directing the jury to focus on the evidence”]; People 

v. Maury (2003) 30 Cal.4th 342, 394 [“A reasonable attorney may have tactically 

concluded that the risk of a limiting instruction . . . outweighed the questionable benefits 

such instruction would provide”].) We thus conclude defendant’s trial counsel was not 

ineffective for failing to request a limiting instruction as to this testimony.

We collectively address defendant’s fourth and fifth claims of ineffective 

assistance of counsel regarding S. T.’s recorded police statement, in which she said: 

(a) defendant previously possessed and discharged a gun and admitted to her that he had 

shot someone, and (b) defendant committed numerous acts of domestic violence against 

her. Assuming the objections and limiting instruction were warranted as defendant 

asserts (which we need not and do not decide), defendant did not receive ineffective 

assistance of counsel because the record reveals defense counsel had a tactical reason for 

not objecting or requesting a limiting instruction as to the recording, for the same reasons 

discussed ante. The strategy was to discredit S. T.’s entire police statement. We thus 

conclude defense counsel was not ineffective for failing to object or request a limiting 

instruction as to the challenged portions of the recording.
13

II

Defendant Fails To Show Ineffective Assistance Of Counsel Pertaining

To The Gunshot Residue Report And Testimony

Defendant argues his trial counsel was ineffective for failing to raise hearsay 

objections to the admissibility of the gunshot residue report and the expert’s testimony 

establishing particles consistent with gunshot residue found on defendant’s hands. He 

asserts the testing report was testimonial because it was prepared with the requisite 

formality and had the primary purpose of accusing a targeted individual of engaging in 

criminal conduct. He further believes the expert’s testimony that the gunshot residue 

results “ ‘purported to’ ” relate to defendant was case-specific hearsay, as found 

inadmissible in People v. Sanchez (2016) 63 Cal.4th 665, given the expert did not have 

personal knowledge relating to the facts. Defendant claims he was prejudiced by his trial 

counsel’s failure to object to the admissibility of this evidence because the evidence 

“corroborated [S. T.’s] recorded statement that [defendant] took a shower after the 

shooting and then hid the gun” and the prosecution relied on the gunshot residue test 

results several times during closing argument. Accordingly, defendant asserts there is a 

reasonable probability the outcome would have been different if his counsel had raised 

the hearsay objections. 

The People argue defendant “cannot establish that his counsel’s representation was 

deficient because counsel failed to object,” and, even if his counsel’s representation was 

deficient, defendant cannot establish prejudice. We conclude defendant cannot establish 

prejudice and thus we do not address the reasonableness of counsel’s performance. 

(Strickland v. Washington, supra, 466 U.S. at p. 697 [80 L.Ed.2d at p. 699] [“If it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, 

which we expect will often be so, that course should be followed”].)

The victim’s and S. T.’s statements to the police on the evening of the shooting 

were substantially similar. F. S. told the police someone driving a blue Chevy Tahoe 
14

parked on 15th Street drove past him as he was riding his bicycle on 64th or 65th 

Avenue, reversed to pursue him, turned the car around, shot at him, and collided with 

another vehicle. The blue Chevy Tahoe was defendant’s mother’s car, which defendant 

had borrowed earlier that evening and returned damaged about an hour later. S. T. told 

the police: she was driving with defendant that evening, they drove past a truck, the man 

in the truck pulled out a bicycle and started to pedal away, defendant put the car in 

reverse to “catch” the man, after defendant turned the car around, he told S. T. to move 

out of the way and shot at the man across S. T.’s body, defendant then drove into another 

vehicle, left the scene, and drove to defendant’s mother’s house, where he took a shower

and put the gun on top of the refrigerator. 

F. S.’s and S. T.’s substantially similar police statements were corroborated by the 

police finding a spent bullet casing on the front passenger floorboard of defendant’s 

mother’s car, a .45-caliber gun on top of defendant’s mother’s refrigerator with the 

rounds therein matching the bullet casing in the car, and a damaged vehicle in the area 

where the shooting occurred. Defendant’s flight from the scene of the vehicle accident, 

coupled with S. T.’s statement that defendant took a shower immediately after the 

incident, lead to the logical conclusion that defendant was seeking to avoid the police that 

evening and he was attempting to destroy evidence of the shooting.3

Based on the foregoing evidence, we conclude that, even if defendant’s trial 

counsel should have objected to the gunshot residue evidence on hearsay grounds, there 

is no reasonable probability the outcome in this case would have been different. (See 

People v. Mai (2013) 57 Cal.4th 986, 1009 [to establish prejudice for an ineffective 

assistance of counsel claim, a defendant must show “a reasonable probability that, but for 

counsel’s deficient performance, the outcome of the proceeding would have been 

3 The jury was given flight and destruction of evidence instructions. Defendant 

does not challenge the propriety of those instructions.
15

different”].) Thus, defendant suffered no prejudice and we conclude his ineffective 

assistance of counsel argument has no merit.

III

The Trial Court Did Not Err In Finding 

The 1995 Conviction Constituted A Prior Strike

Defendant contends his 1995 conviction was a juvenile adjudication and, as such, 

the trial court was required, among other things, to determine that he was over 16 years 

old at the time he committed the offense before the conviction could constitute a strike 

under section 667, subdivisions (a) and (d)(3)(A). Defendant argues the trial court 

violated his Sixth and Fourteenth Amendment rights by impliedly finding he was over 16 

years old at the time of the offense because defendant never admitted his age in the 

original plea and the record of conviction was devoid of such information. Defendant 

further argues that, to the extent an objection to the trial court’s determination of 

defendant’s age at the time of the 1995 offense was required, his trial counsel was 

ineffective for failing to object. 

The People disagree. The People argue defendant’s 1995 conviction was not a 

juvenile adjudication because defendant was sentenced in superior court, relying on 

People v. Cole (2007) 152 Cal.App.4th 230. Thus, in the People’s view, the fact that 

defendant was a juvenile at the time of his 1995 conviction is immaterial. In reply, 

defendant asserts Cole is distinguishable because “the record [here] revealed no evidence 

that [defendant] was found ‘unfit for handling in the juvenile court.’ ” 

We agree with the People that defendant’s 1995 conviction was not a juvenile 

adjudication. Thus, we find no merit in defendant’s argument.

A

Background

The prosecution introduced the following documents to prove defendant’s 1995 

conviction constituted a strike under section 667: (1) the August 18, 1995, complaint 
16

filed against defendant; (2) the November 30, 1995, Sacramento Superior Court abstract 

of judgment providing defendant pled guilty to and was convicted of assault with a 

firearm under section 245, subdivision (a)(2), and he admitted the firearm enhancement 

under section 12022.5 was true, resulting in a six-year sentence in state prison; (3) a 

minute order dated November 30, 1995; (4) minute orders for various dates in October 

1995; and, (5) various documents from the Department of Corrections and Rehabilitation. 

The trial court found the 1995 conviction constituted a strike within the meaning 

of section 667, subdivisions (a) through (i). 

B

The 1995 Conviction Was Not A Juvenile Adjudication

Section 667, subdivision (d)(3), upon which defendant relies, provides: “A prior 

juvenile adjudication constitutes a prior serious or violent felony conviction for purposes 

of sentence enhancement if: [¶] (A) The juvenile was 16 years of age or older at the 

time the juvenile 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 serious or violent felony. [¶] (C) The juvenile was found to be 

a fit and proper subject to be dealt with under the juvenile court law. [¶] (D) The 

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.” The plain language 

of the statute makes clear that this section applies only if the defendant previously had a 

juvenile adjudication.

Defendant’s 1995 conviction was not a juvenile adjudication. First, as defendant 

concedes, although he was a juvenile at the time of the offense, defendant “was 

prosecuted in adult court for reasons that are not reflected in the record.” The record of 

conviction shows the 1995 conviction was “a finding of criminal guilt in adult criminal 

court” not “a declaration of wardship by a juvenile court.” (People v. Smith (2003) 110 
17

Cal.App.4th 1072, 1080 [discussing differences between adult convictions and juvenile 

adjudications].) Second, juvenile adjudications are generally not convictions, and 

defendant sustained a conviction in 1995. (See People v. Thurston (2016) 244 

Cal.App.4th 644, 662, citing Welf. & Inst. Code, § 203 [“ ‘An order adjudging a minor to 

be a ward of the juvenile court shall not be deemed a conviction of a crime for any 

purpose, nor shall a proceeding in the juvenile court be deemed a criminal 

proceeding’ ”].) Third, defendant served his six-year sentence for the 1995 conviction in 

state prison under the supervision of the Department of Corrections and Rehabilitation; 

he was not committed to the California Youth Authority.4 Because defendant’s 1995 

conviction was not a juvenile adjudication, section 667, subdivision (d)(3), is 

inapplicable. 

To the extent defendant argues that, based on Cole, for the 1995 conviction to 

constitute a strike under section 667, the trial court first had to find defendant was found 

unfit for handling in the juvenile court, we disagree. (See People v. Cole, supra, 152 

Cal.App.4th at p. 237 [stating, “if the minor is found unfit for handling in the juvenile 

court and is found in adult court to have committed a serious or violent felony, that 

felony is a strike”].) Cole did not consider and is, therefore, not authority for the 

proposition that, where the record of conviction reveals a defendant suffered an adult 

conviction as a minor, a court must find the defendant was unfit for handling in the 

juvenile court before it may find that prior adult conviction qualifies as a strike offense. 

(In re Chavez (2003) 30 Cal.4th 643, 656 [a case is not authority for propositions not 

4 Pursuant to post-1995 amendments to the Welfare and Institutions Code, the 

Youth Authority is now known as the Division of Juvenile Justice in the Department of 

Corrections and Rehabilitation. (Welf. & Inst. Code, § 1703, subd. (c); Gov. Code, 

§ 12838.5.)
18

considered and decided].) We find no basis for imposing such a requirement not

otherwise specified in section 667.

In light of our conclusion, we do not address defendant’s alternative argument that 

his trial counsel was ineffective for failing to object to the trial court’s purported “posthoc judicial fact-finding regarding [defendant’s] age at the time of his juvenile 

conviction.” (Bolding and capitalization omitted.) 

IV

There Was No Cumulative Error

Defendant argues the cumulative effect of the errors in this case deprived him of 

due process and a fair trial in violation of his federal and state constitutional rights. 

“Under the ‘cumulative error’ doctrine, errors that are individually harmless may 

nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 

694, 772, fn. 32.) Because we concluded defendant did not receive ineffective assistance 

of counsel and his 1995 conviction properly constituted a strike, there was no cumulative 

error.

V

The One-Year Enhancement Is Stricken

Defendant argues the one-year enhancement imposed under section 667.5 must be 

stricken because the allegation was dismissed prior to judgment, the prosecution 

produced no evidence regarding the truth of the prior conviction, and, alternatively, the 

enhancement can no longer be imposed in light of Senate Bill No. 136 (2019-2020 Reg. 

Sess.). The People concede the one-year enhancement should be stricken because the 

prior conviction allegation supporting the enhancement was dismissed prior to judgment. 

The record confirms this fact. We accordingly accept the People’s concession and strike 

the one-year enhancement.
19

DISPOSITION

The judgment is modified to strike the one-year enhancement imposed under 

section 667.5, subdivision (b). The trial court is directed to amend the abstract of 

judgment to reflect this change and to forward a certified copy of the amended abstract to 

the Department of Corrections and Rehabilitation. In all other respects, the judgment is

affirmed.

/s/ 

Robie, J.

We concur:

/s/ 

Hull, Acting P. J.

/s/ 

Renner, J.