Error and/or relief
Substantial evidence does not support the true finding on the prior strike allegation. At trial, the prosecution introduced documentary evidence that the defendant was convicted in 2019 of violating section 246.3(a) along with another offense, and the defendant admitted the convictions. The evidence did not prove whether he violated section 246.3(a) by personally using a firearm, or instead if his guilt was based on his vicarious liability as an aider and abettor. The prosecution therefore failed to introduce substantial evidence that his conviction for violating section 246.3(a) constituted a strike as defined by Penal Code section 1192.7.
First Holding:
The evidence was insufficient to prove personal use, so the prior conviction was not proved as a strike.
Authority:
People v. Watts (2005) 131 Cal.App.4th 589, 596
Second Holding:
Penal Code section 246.3 is a strike under as any felony in which the defendant personally uses a firearm or as any felony in which the defendant personally used a dangerous or deadly weapon.
Authority:
PEN 1192.7(c)(8)
PEN 1192.7(c)(23
Third Holding:
Section 246.3 can be used as a strike only if the defendant personally used the firearm.
Authority:
People v. Golde (2008) 163 Cal.App.4th 101, 111-112
Fourth Holding:
Where the prior conviction is for an offense that can be committed in multiple ways, one or more of which would not qualify it as a strike, and 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.
Authority:
People v. Watts (2005) 131 Cal.App.4th 589
Fifth Holding:
On reversal for insufficiency of evidence of a prior conviction, the issue may be retried.
Authority:
People v. Barragan (2004) 32 Cal.4th 236, 239