Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA321091. Charlaine F. Olmedo, Judge.
Alan Mason, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, Acting P. J.
Carlos Galvan appeals from the judgment after a jury convicted him of two counts of carjacking, one count of assault with a semiautomatic firearm, and one count of evading a peace officer and the trial court sentenced him to prison for 20 years 8 months.
Galvan argues his firearm assault conviction must be reversed because the trial court committed prejudicial error in failing to instruct the jury sua sponte that guilt under Penal Code section 245, subdivision (b) required their finding that the firearm was a semiautomatic, as alleged in the information, and in failing to define the term “semiautomatic firearm.” He also contends his one-year sentence enhancement for a prior prison term must be reversed because insufficient evidence supports either that his prior conviction was for a felony or that he served a term in prison for the crime. We affirm the judgment as to the conviction and reverse the one-year enhancement.
FACTS AND PROCEEDINGS BELOW
Because this is an unreported opinion and the parties are familiar with the facts we will dispense with their recitation here. To the extent they are relevant, the facts are discussed in our resolution of the issues below.
DISCUSSION
I. INSTRUCTIONAL ERROR: SEMIAUTOMATIC FIREARM
Count 2 of the information charged Galvan with “an assault upon Gisella Salazar with a semiautomatic firearm” and on the verdict form the jury found Galvan “guilty of the crime of assault with a semiautomatic firearm.” (Capitalization omitted.) The trial court, however, did not instruct the jury that for Galvan to be guilty of count 2 it had to find that the firearm was a semiautomatic. Nor did it instruct the jury on the definition of a semiautomatic firearm. Rather, the court instructed the jury in relevant part: “The defendant is charged with assault with a firearm, in violation of Penal Code section 245. To prove that the defendant is guilty of this crime, the People must prove that: The defendant did an act with a firearm....” The court further instructed the jury “[a] firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.”
CALCRIM No. 875 states: “A semiautomatic firearm extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger.”
Galvan maintains the court’s instructional errors denied him his constitutional right to have the prosecution prove every element of the crime charged. (People v. Cole (2004) 33 Cal.4th 1158, 1208.) Use of a semiautomatic firearm is a critical element of a firearm assault charge under Penal Code section 245 because it carries more severe terms of punishment than use of a nonsemiautomatic firearm. (Cf. Pen. Code, § 245, subd. (a)(2) with subd. (b).)
All future statutory references are to the Penal Code.
Respondent agrees that use of a semiautomatic firearm was an element of the assault offense as pleaded and the court erred in failing to instruct the jury that it must find the assault was committed with such a weapon. Respondent does not, however, agree that the court was obligated to define the term semiautomatic. In any event, respondent argues, failing to instruct the jury that it must find Galvan used a semiautomatic firearm was harmless beyond a reasonable doubt (see People v. Palmer (2005) 133 Cal.App.4th 1141, 1157 [error in omitting an element of the offense is reviewed under the Chapman standard]) and, if the failure to define “semiautomatic” was error, it was harmless under the reasonable probability standard. (Ibid.)
We agree with the parties that when a defendant is charged with assault with a semiautomatic firearm the prosecution must prove that the weapon was indeed a semiautomatic firearm and that failure to so instruct the jury is constitutional error. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) But we agree with respondent that in this case the error was harmless beyond a reasonable doubt.
Uncontroverted evidence showed that the gun Galvan used to assault the victim, Salazar, was a semiautomatic. Salazar testified that the gun was an “automatic” as opposed to a “revolver” and that it had a silver and black handle. She stated it looked “similar” to the gun depicted in People’s exhibit 5. The prosecution produced evidence that Galvan discarded two semiautomatic firearms during a car chase with police a few days after the assault on Salazar and that one of the firearms was a Smith and Wesson nine-millimeter semiautomatic handgun with a silver and black handle. At trial, Detective Hernandez testified this gun is depicted in People’s exhibit 14. The gun in exhibit 14 appears identical to the gun pictured in exhibit 5 identified by Salazar as looking similar to the gun used by Galvan in the assault.
Given the strength of this evidence it is not reasonably probable that Galvan would have obtained a more favorable result had the jury been given a definition of a semiautomatic firearm. (See fn. 1.)
II. SUBSTANTIAL EVIDENCE OF A PRISON PRIOR
The court sentenced Galvan to a consecutive one-year prison term under Penal Code section 667.5, subdivision (b) for having previously served a prison term for a felony. The problem with this sentence is that Galvan did not admit, and there was no evidence, that he was convicted of a felony or that he served a prison term for the conviction.
After Galvan’s counsel announced his client would admit to a “prior conviction, ” the following colloquy took place between Ms. Ritchey the prosecutor, Galvan and the court.
“Ms. Ritchey: Okay. Mr. Galvan, you have a right to a formal hearing regarding your prior conviction in case No. BA272446. You were charged with vandalism, in violation of Penal Code section 594(a), and convicted in the Los Angeles Superior Court on November 3rd, 2004. Do you waive your right to a formal hearing in which you would have the right to confront and cross-examine the witnesses the People were to present, a defense [sic] to bring any other witnesses you may feel necessary, and also the right to remain silent?
“The Defendant: Yes.
“Ms. Ritchey: Okay. And do you admit the prior conviction on November 3rd, 2004, in case No. BA272446?
“The Defendant: Yes.
“The Court: Okay.
“Ms. Ritchie: Is there anything else?
“The Court: No.”
After the court asked Galvan some additional questions to establish his knowing and intelligent waiver of his right to proof of the prior beyond a reasonable doubt and other rights, the court accepted Galvan’s admission of the prior.
As the colloquy shows, Galvan never admitted that he was convicted of felony vandalism or that he served a prison term for that crime. In the absence of either an admission or proof of the prison term elements, the prosecutor did not carry her burden of proving the section 667.5, subdivision (b) allegations beyond a reasonable doubt.
Vandalism that does more than $400 in damage is a wobbler. Vandalism that does less than $400 in damage is a misdemeanor. (Pen. Code, § 594, subd. (b).)
The People point out that the information alleged Galvan had suffered a prior conviction “pursuant to Penal Code section 667.5(b)” so that when Galvan admitted he suffered a prior conviction “it must be assumed that he knowingly admitted that he served the sentence as alleged in the information.” (People v. Franco (1970) 4 Cal.App.3d 535, 540.) But Franco is distinguishable. In Franco, immediately before admitting the prior conviction, the defendant was advised that the information charged him both with having suffered a prior conviction and with having served a prior term of incarceration for that conviction. (Id. at p. 539.) Unlike Franco, here the record does not show that the information was read to Galvan prior to his admission or that he was ever advised that by simply admitting the prior crime he was also admitting that it was a felony and that he had served a prison term. Thus, his admission that he sustained a prior conviction for “vandalism” cannot be construed as an admission of the allegations that he served a prior prison term for that conviction. (Cf. People v. Lopez (1985) 163 Cal.App.3d 946, 951.)
Accordingly, the one-year enhancement imposed by the trial court must be reversed. On remand, the People may retry the allegation. (Monge v. California (1998) 524 U.S. 721, 734.)
DISPOSITION
The judgment of conviction is affirmed. The one-year enhancement under Penal Code section 667.5, subdivision (b) is reversed. Should the People choose to retry that enhancement allegation, the defendant has the right to be present at the trial.
We concur., CHANEY, J., JOHNSON, J.