Filed 9/21/23 P. v. Mercado CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. DANIEL PATRICK MERCADO, Defendant and Appellant. H046930 (Santa Clara County Super. Ct. No. C1776749)

A jury found defendant Daniel Mercado guilty of f ive armed robberies, assault with a firearm, and multiple instances of being a felon in possession of a firearm. He
contends the evidence i s insuffi cient to support the assault conviction and most of the firearm possession counts. He also contends the jury was incorrectly instructed on the
elements of assault and was allowed to consider inadmissible testimony from two
witnesses . Finally, he asserts the case must be remanded for resentencing based on new legislation that was enacted after he was sentenced and is applicable retroactively. We will reverse the judgment and vacate three firearm possession conviction s not supported by substantial evidence

. We will also remand for resentencing under the current standards

. I. BACKGROUND

Defendant committed a string of convenience store robberies in September and
October 2017. On a Saturday night in September, he and a man named Anthony Garcia , both carrying guns, entered a 7

- Eleven store in San Jose around 2:00 a.m. and ordered the2

clerk to o pen the cash register. They fled with over $300

. A n hour and a half later they
robbed another 7

- Eleven store in essentially the same way , taking another $400 t o $500. The following month , defendant and a man named Derek Cornell robbed two more 7

- Eleven stores at gunpoint. Then they robbed a liquor store. All five robberies were captured on video by security cameras.
Earlier in October , defendant and Cornel l were in an altercation with two men in a liquor store parking lot . Defendant drew a gun and pointed it at the men, chasing after them as they ran away. That part of the confrontation was recorded by a security camera. Out of frame, two shots were fired and the bullets shattered the window of a nearby hair salon, striking an interior wall next to where one of the hairstylist s was standing.
Police identified defendant as one of the robber s by comparing images from the security camera footage with photos from defendant’s social media profile , and they
located him in San Jose on October 31, 2017. As police approached, defen dant ran, tossing a gun into a nearby yard. Officers retrieved the gun, which looked like the one used in the convenience store robberies. F orensic testing later confirmed it was the gun that fired the bullets into the hair salon.
Defendant and Anthon y Garcia were tried jointly. (Derek Cornell was initially joined as a co defendant , but his case was severed when proceedings were suspended to determine his competency to stand trial.) The jury convicted defendant of five counts of robbery (Pen. Code, §§ 211, 212.5, subd. (c)), one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and found true special allegations that he personally used a firearm in committing each offense. It also convicted defendant of four counts of possessing a fire arm as a felon (Pen. Code, § 29800, sub. (a)), and one count of possessing ammunition as a felon (Pen. Code, § 30305, subd. (a)(1)). In a bifurcated proceeding, the court found true that defendant has two prior convictions resulting in prison terms and a prior serious felony conviction. (Pen. Code, §§ 667, subdivision (b); 667.5, subd. (a).) The court imposed an aggregate prison term of 45 years, eight months.3 II. DISCUSSION
A. S UFFICIENCY OF E VIDENCE
Defendant contends the evidence is insufficient to support three of the four charged counts of being a felon in possession of a firearm because he p ossessed the same

gun continuously and can therefore be convicted of only one count. As the Attorney General concedes, the evidence shows a single continuing offense without the interruption in possession ne cessary for separate crimes. (See People v. Mason (2014) 232 Cal.App.4th 355, 365.) ( Indeed, to help prove identity of the perpetrator, the prosecutor relied on the fact that the same gun was used in all the offenses. ) We will therefore reverse the judgment and order all but one firearm possession conviction
vacated.
Defendant also contends the evidence is insufficient to convict him of assault with
a firearm because there is no evidence he was aware the shots he fired would likely result in force being applied to the two men he chased after the parking lot altercation. Here we
are mindful of the deferential standard we must apply where sufficiency of the evidence is challenged . We review the record in the light most favorable to the judgment for
evidence from which a rational trier of fact could find the elements of the crime established beyond a reasonable doubt. ( Pe ople v. Tripp (2007) 151 Cal.App.4th 951, 955.) We presume the existence of every fact in favor of conviction that th e jury could reasonably infer

. ( People v. Medina (2009) 46 Cal.4th 913, 919 .) And t o overturn a conviction, “it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.” ( People v. Redmond (1969) 71 Cal.2d 745, 755.)
Assault is committed when a person does something knowing it will likely result in physical force being applied to another. (See People v. Williams (2001)
26 Cal.4th 779, 788; People v. Chance (2008) 44 Cal. 4th 1164, 1169.) Defendant argues
the evidence does not establish he knew the two shots he fired would l ikely cause harm to
the victims . He points to the partial video of the encounter , which shows him chasing the4

men in the direction away from the hair salon where the bullets were recovered. Because
the video does not reveal where he was standing or where the victims were when the
shots were fired , d efendant argues the jury should have found the evidence inadequate to

prove he was firing toward the victims or in a ny manner likely to physically harm them. We acknowledge the logic of defendant’s argument , but conclude the jury

r ationally could infer from footage of defendant chasing t he men while pointing a gun at them that the shots fired from that gun moments later were fired toward those men , including the further inference that they changed direction a t some point while fleeing

. Applying our deferential standard of review, we find sufficient evidence support s the jury’s decision to convict defendant of assault with a firearm. B. A DMISSIBILITY OF E VIDENCE 1. Opinion Testimony Identifying Defendant in the Videos Defendant contends the trial court improperly allowed a police officer to testify about the identity of the perpetrators shown in the videos of the convenience store robberies and the shooting. The officer testified that one of the people shown in the
videos appeared in photographs on defendant’s social media account, and she recognized the person in the photographs as defendant. The officer explained she reached that
conclusion based on both the person’s physical characteristics and certain artic les of clothing ( shoes and a hat ) worn in the videos and the social media photographs. Defendant argues th e testimony is inadmissible because the officer did not have adequate personal knowledge regarding defendant’s appearance. We review the decision to a llow the testimony for abuse of discretion. ( People v. Virgil ( 2011) 51 Cal.4th 1210, 1253.) The identity of an individual seen in photographic evidence is an appropriate subject for lay opinion testimony and is properly admitted if the witness’s opi nion is predicated on “ ‘ contacts with defendant, their awareness of his physical characteristics on the day of the robbery, and their perception of the film taken of the events. ’ ” ( People
v. Leon (2015) 61 Cal.4th 569, 601, citing People v. Perry (1976) 60 Cal.App.3d 608,5

613.) It is irrelevant whether the witness’s contact with the defendant was before or after the crimes were committed. ( Leon , at p. 601.) Questions about familiarity with the defendant’s appearance go to the weight of the testimony n ot its admissibility. ( Ibid .) Accordingly, “ decisions have long upheld admission of testimony identifying defendants in surveillance footage or photographs. ” ( Ibid .) The testimony here was adequately supported by the requi site awareness of defendant’s physical characteristics and was based on the officer’s perception of the images. We see no abuse of discretio n in allowing the testimony.

2. Testimony About Gunshots and Bullet Holes in the Salon Defendant contends the trial court improperly admitted testimony from a hairstylist who worked at the salon that was struck by bullets

. The stylist first described hearing gunshots and seeing the front window shattered and bullet holes in the wall. She

t hen testified that she was hit by broken glass, that a bullet hole in the wall was close to where her head had been, that she felt frightened , and that police told her the bullet would have gone into her head had she not ducked. Defendant argues th e later , more descriptive , testimony is inadmissible because it is not relevant and, alternatively, that its probative value is outweighed by its prejudicial effect. A trial court has broad discretion
to decide what evidence is relevant and to assess whether und ue prejudic e significantly outweighs probative value. ( People v. Merriman (2014) 60 Cal.4th 1, 82). We review
such a decision for abuse of discretion. ( Ibid .)
Part of a trial court’s broad discretion to determine relevancy and weigh prejudic e is the abi lity to permit background information that can help a jury understand the circumstances surrounding the relevant event. (See People v. Edwards (1991)
54 Cal.3d 787, 818 , overruled on unrelated grounds as stated in People v. McDaniel (2021) 12 Cal.5th 97, 138

. ) The trial court was not required to sanitize the hairstylist’s testimony to the extent requested by defendant, who asserts she should have been limited

to merely stating s he saw glass shatter and later found bullet ho les in the wall. Th e6

decision to allow the more emotional description merely included a “slight touch of humanity” in the narrative and was not an abuse of discretion. ( People v. Edwards , supra , at p. 818.) C. J URY I NSTRUCTIONS Defendant contends the trial court improperly in structed the jury on the offense of
assault with a firearm because the instruction allowed the jury to convict him without finding every element of the offense beyond a reasonable doubt. In reviewing the propriety of jury instructions, we evaluate whether there is a reasonable likelihood that the jury applied the challenged instruction in a manner contrary to law. ( People v . Young (2005) 34 Cal. 4th 1149 , 1202 .) We consider the instruction in the context of the entire record, including the arguments of co unse l , as i nstructional ambiguity can be clarified through closing argument. ( Ibid. )
Defendant asserts the assault instruction was flawed because it state s the prosecution must prove application of force to “a person” and the jury could find defendant guilty if he knew his conduct was likely to result in force to “someone.” In defendant’s view, given that he was alleged to have assaulted the two men he was chasing in the parking lot, the nonspecific language regarding victim identity allowed the jury to find him guilty without finding it was those particular men he assaulted. Reading the instruction in the context of this record, we see no reasonable likelihood of juror confusion. We note at the outset that trial counsel did not object to the instruction as given nor suggest that clarification was n ecessary , which undercuts the

a ssertion that the instruction is as confusing as defendant now suggest s . (See People v

. Young , supra , 34 C al. 4th 1149 , 1203.) And more importantly, arguments of counsel sufficiently clarified the point. The prosecution proceeded on the theory that the victims
of the assault were the two men being chased in the parking lot (identified in the charging
document s as “John Does”) . T hat is precisely what the prosecutor argued to the jury: “He’s firing at the people that he pulled out the gun and chased across the street. They7

came looking for a fight. There is no question. T hey are coming down that alley, coming to that liquor store, and Mr. Mercado repeatedly checks that he has his gun with him

... . The evidence is that he was shooting at people. We don ’ t know their names. We don ’ t have to. They ’ re alleged in the complaint as ‘John Doe.’ ” The prosecut or’s closing argument dispelled the potential for juror confusion , and we find no instructional error.
D. P ROSECUTION S TATEMENTS IN C LOSING A RGUMENT Defendant contends the prosecutor misstated the law during closing argument by saying that a warning shot is enou gh to constitute assault with a firearm. The statement
was made in the prosecutor’s rebuttal argument, after defense counsel argued the shots fired by defendant in the parking lot could have been warning shots, not intended to strike anyone, and therefore could not be an assault

. In response to that argument , the prosecutor told the jury a warning shot “is an assault that is likely to produce an impact. When you shoot a warning sho o t [ sic ] , you are very likely to hit someone. [ ¶ ] There’s nothing in [ th e instructions] that

... says a warning shot is a defense to count 3. It’s not. It is inherently dangerous to human life, and it is a violation of Penal Code section 245.” A prosecutor has wide latitude to argue the case during closing and is free to suggest inferences and deductions the jury should draw from the evidence. ( People v.
Wharton (1991) 53 Cal.3d 522, 567.) The gist of the rebuttal argument here wa s that the jury should not acquit merely because the shots could have been intended as warning shots, since any shots fired in the direction of a person

— whether as a warning or not

— are likely to cause harm. The challenged statements raised a fair point in response to the defense argument for acquittal , and it was not error for the trial court to overrule defendant’s objection to that portion of the closing argument. E. A PPLICATION OF N EW S ENTENCING L AWS

1. Presumptive Low Term Where Offender ’s Youth a Factor The trial court imposed the middle term of six years for the robb ery designated as the principal offense for sentencing purposes. After defendant was sentenced, Assembly8

Bill No. 124 was enacted which amended Penal Code section 1170, subdivision (b) to
mandate the low term under certain circumstances, including where t he defendant was under age 26 at the time of the offense and youth was a contributing factor in the offense. (See Pen

. Code, § 1170, subdivision (b)(6).) Because that new provision is ameliorative, it applies retroactively to this nonfinal judgment. ( Pe ople v. Flores (2022) 73 Cal.App.5th 1032, 1039.) The Attorney General does not dispute defendant was under 26 at the time of the offenses but argues resentencing is not required because there is no evidence youth was a contributing factor and the aggrava ting factors found by the court outweigh the mitigating
factors such that the court would not have imposed the l o w term in any event. But when a court has imposed a sentence wh ile unaware of the extent of its discretion

— in this case because the legislatio n was not yet in effect

— re sentencing is required unless the record clearly indicates the court would have imposed the same sentence under the new
standard . ( People v. Gerson (2022) 80 Cal.App.5th 1067, 1096.) The new legislation potentially constrained t he scope of the trial court’s authority , not merely permitting the low term in certain situations but mandating it.
T his record does not clearly indicate the trial court would have imposed the same

sentence under the new law . We are not persuaded that a lack of evidence showing youth
contributed to the offense obviates the need for remand , as b efore the enactment of the

new law , counsel may have had less incentive to present mitigation on the point , and
defendant should now be allowed the opportunity to do so. (See People v. Gerson , supra , 80 Cal.App.5th 1067, 1096.)

2. Enhancement for Prior Serious Felony Defendant’s sentence was increased based on the finding that he was convicted in
2012 of a serious f

elony. The prior conviction is for assault under former Penal Code section 245, subdivision (a)(1), which qualified as a prior serious felony because it was found to have been committed to benefit a criminal street gang under Penal Code9

section 186.22. D efendant contends the prior serious felony enhancement must be vacated because legislation enacted after his sentencing ( Assembly Bill No. 333) added
several elements to the gang enhancement statute , and if the current standard is applied to his 2012 convi ction , the evidence is insufficient to prove the new elements.
D efendant’s argument fails because the changes to the gang statute apply retroactively only to judgments that are not yet final. ( People v. Burgos (2022)
77 Cal.App.5th 550, 563 .) T he convic tion from 2012 to which defendant seeks to apply
the new statute is final. The amended statute does not apply to defendant’s 2012
conviction and therefore affect s neither the conviction nor the collateral consequences that flow from it. (See People v. Foster (2019) 7 Cal. 5 th 1202, 1211 [rule that ameliorative statutes apply retroactively to nonfinal judgments does not negate collateral consequences of convictions that are fin al].)

3. Enhancements for Prior Prison Term s Applying the version of Penal Code section 667.5 in effect at the time of defendant’s sentencing in 2019, the trial court imposed and stayed two one

- year enhancements for prior prison terms. The offenses for whic h defendant served the prior prison terms are assault with force likely to cause great bodily injury and being a felon in possession of a firearm. E ffective January 1, 2020, Penal Code section 667.5 was
amended to limit prior prison term enhancements to s entences that were served for sexually violent offenses as defined in Welfare and Institutions Code section 6600, subdivision (b). (Senate Bill No. 136, (2019

– 2020 Reg. Sess.; Stats. 2019, ch. 590, § 1.) The Attorney General concedes the amendment applie s retroactively and requires the prior prison term enhancements to be vacated because they were not based on sexually
violent offenses. We will remand the case for resentencing under the current standards

.

4. Application of Amended Penal Code S ection 1385

D efendant correctly notes that effective January 1, 2022 , Senate Bill No. 81
amended Penal Code section 1385 to limit sentencing enhancements by requiring, for10

example, dismissal of all special allegations that would result in imposition of more than a single enhancement. (Pen. Code, § 1385, subdivision (c)(3)(B).) B y its terms, amended Penal Code section 1385 applies to all sentencings after January 1, 2022 , which will include defendant’s resentencing . (See Pen. Code, § 1385, subdivision (c)(7) [“ This subdivision shall apply to all sentencings occurring after January 1, 2022. ”].)

5. The Term for Ammunition Possession Must Be Stayed The Attorney General points out that the trial court imposed a concurrent prison
term for possessing ammunition , which should have been stayed under Penal Code
section 654 because the ammunition offense i s based on the same conduct as unlawfully possessing a firearm, for which the court also imposed a prison term. Defendant agrees
th e ammunition possession term sh ould have been stayed. W he n resentencing defendant , the trial court shall apply Penal Code section 654 to stay any prison terms arising from conduct for which punishment is otherwise imposed. III. DISPOSITION The judgment is reversed. All but one conviction for violating Penal Code
section 29800, subdivision (a) are vacated. Defendant’s other convictions shall remain.
The matter is remanded to the trial court with dire ctions to resentenc e defendant under

current law

.____________________________________ Grover, J.

WE CONCUR:

____________________________ Greenwood, P. J.

____________________________ Danner, J.

H046930 The People v. Mercado