Commercial Litigation and Arbitration

Instagram Authentication — Contents, Including Photos with Kids, Sufficient Evidence of Authenticity — Burden on Opponent to Show Hacking — “To Agree Evidence Is Weak Is Not to Agree It Is Speculative or Untenable” (Good Quote)

People v. Taylor, 2017 Cal. App. Unpub. LEXIS 3247 (Cal. Ct. App. May 12, 2017):

Following a joint trial, a jury convicted Ruben Ramon Guajardo, the shooter, and his cousin Gino Wayne Taylor, an aider and abettor, of the first degree murder of Victor Aranda. Guajardo confessed during the investigation and the jury rejected his claim of self-defense. Both defendants challenge the admissibility of Instagram posts on multiple grounds. We conclude the trial court did not abuse its discretion by admitting the social media evidence; nor did the admission of the evidence violate either defendants' constitutional right to due process. We accept the Attorney General's concession that Guajardo's prior juvenile adjudication does not qualify as a strike under the three strikes law and remand for resentencing. We reject, however, the remaining instructional and sentencing challenges, and in all other respects, affirm the judgments.


In January of 2014, Guajardo had little to do and no permanent place to live. He smoked marijuana and was thinking about starting a digital entertainment company, Cash Me Out. Taylor had three children but no longer lived with his children's [*2]  mother, Amanda Skific. Nevertheless, he visited regularly with the children, as he did on the morning of January 25. Skific testified that Guajardo also stopped by that morning for about 45 minutes.

The shooting took place in a neighborhood inhabited by many family members and acquaintances. Taylor and his nephew, Victor Lopez, spent some time at Lopez's friend Jeremy's house, a house next door to the shooting. Guajardo's grandparents lived close by, and he was en route to his aunt's house when he encountered his cousin Taylor socializing on a driveway in the neighborhood. Sergio Cortez was a friend of the victim, Aranda, and was cooking flautas for sale at his mother's house, the house next door to Jeremy's. Cortez invited Aranda to come to the house to purchase flautas.

Aranda was accompanied by a woman he was dating, Marissa Mesa, her friend, Yvette Arguello, and Derrick (D.J.) Kamekona. Kamekona ran away after the shooting and, despite the prosecution's multiple attempts to secure his attendance, did not testify at trial. Mesa and Arguello did. Both testified to the events that preceded the shooting.

They testified that three or four Hispanic men approached the house from Jeremy's. [*3]  Taylor and his nephew Lopez walked up the driveway and talked to Aranda, Cortez, Kamekona, and others. A third male wearing a dark-colored sweatshirt and a beanie did not walk up the driveway, but walked back and forth in front of the house. The conversation appeared friendly. Cortez testified that Taylor asked him if he knew anyone who had some coke. Cortez said he could not help him. According to Cortez, Mesa, and Arguello, Taylor asked Aranda if he would step away to talk. While the two men discussed prices, they moved away from the house and cars parked in the driveway and closer to the street. No one saw Aranda with a gun that day.

Arguello heard footsteps approaching. Several witnesses heard someone shout, "What's up nigger?" Aranda replied, "What's up?" The shooter shouted, "All right, bitch ass, nigger," and the shooting started. Cortez saw what he thought was a warning shot. The witnesses' accounts of the number of shots varied from five to 12. According to Arguello, the shooter was firing the gun at Aranda with his arm extended from about five feet away from Aranda. Once the shooting began, everyone started running and some of what they heard was from inside the house.

Aranda [*4]  died from multiple gunshot wounds. All the entrance wounds were consistent with the gun's muzzle being four or five feet away from Aranda when he was shot. He had gunshot residue on his palms and the backs of both of his hands. The residue was consistent with someone being shot while his palms of his hands were up. Eight, nine-millimeter casings were found near his body and all of the casings were fired from the same gun. A bullet recovered from his body could have been fired from the same gun.

Cortez believed Taylor was the shooter. Taylor was arrested first. Guajardo was interrogated on January 29. During the initial phase of the interrogation, he denied being present during the shooting. He insisted he was at Skific's house.

Taylor was brought into the interrogation room. The detectives told Taylor and Guajardo that they knew one of them was the shooter. Taylor said he had three children and could not be in jail. Guajardo continued to maintain he was not there. Taylor was distressed about his children. Guajardo then stated that three masked men had walked up and started shooting and he and Taylor fled.

The interrogators pressed their subjects. Taylor continued to express his love for [*5]  his children. Ultimately, Guajardo stated, "I did it. I did it." He told the interrogator to let Taylor go. The interrogator explained he needed to know why Guajardo shot Aranda. Guajardo did not claim to have seen Aranda with a gun that day. He did, however, tell the interrogator that Aranda gave him the look of death and he feared for his life. He lived in a dangerous neighborhood and needed a gun for protection. He had seen Aranda with guns in the past and Aranda never treated him like everyone else. He thought he saw him reach into his pants. He told the interrogator, "If it wasn't him, it was gonna be me. Just put it like that."

Arguello and Cortez testified they heard two different types of guns fired. Guajardo's attorney urged the jury to conclude that Kamekona, the missing witness, had run away with one of the guns. He speculated that the missing gun was a revolver because there were no additional casings found at the scene.

The evidence of aiding and abetting was circumstantial and certainly not overwhelming. The prosecution relied on Instagram posts on what it asserted was Taylor's Instagram account to prove motive. We will describe the facts related to authentication in the [*6]  discussion that follows. As relevant here, the prosecution introduced an exchange of messages between Taylor and Aranda two months before the shooting. Smackcityboy, who the prosecution alleged was Taylor, wrote: "A cuz we need to talk about some paper. That didn't get payed." Vickfukndamone, who was presumably Aranda, responded: "[H]it me 9178798361. And last time I checked it don't got shit to do with you so YOU have Chris call me not his wife!!!" Smackcityboy (Taylor) wrote: "I don't no why she called. But don't pay no mind to her. But on that it does have to do wit me that half my. So whatever u niggas got goin on together if he dont get payed I don't get payed. So I will hit u." Vickfukndamone responded: "You got my number I ain't wit all this IG shit bruh hit me."

The prosecution thus argued that Taylor planned the shooting with his cousin over a debt gone bad and lured Aranda down the driveway to facilitate a clear shot. Taylor had met with his cousin early in the day thus providing an opportunity for planning. And when left with Guajardo alone in the interrogation room, Taylor told Guajardo, "You should have went with my gut fool," and "You should've went with my gut when I said, [*7]  'No, nigga, let's not go.'" In the prosecution's view, this was additional evidence the shooting had been preplanned.

Taylor's lawyer discounted the meager evidence of aiding and abetting. He insisted that the meeting at the Cortez house was fortuitous and unplanned. Taylor had been visiting his nephew's friend next door. Guajardo had been in the neighborhood visiting family members. According to Taylor's lawyer, the Instagram posts were old, ambiguous, and insufficient to motivate a murder. He urged the jurors to find his client was not guilty beyond a reasonable doubt because there simply was little, if any, evidence that he planned or facilitated the shooting.

Taylor and Guajardo both appeal.



Admissibility of Instagram Posts1

1. Authentication

Taylor argues the Instagram posts were not admissible because they had not been properly authenticated. He insists that the admissibility of social media raises troubling concerns about authenticity thereby impinging on his right to due process and a fair trial. While it may be true that in some cases social media presents new and different issues with respect to authentication, this is not one of those cases. We turn to well established [*8]  rules of authentication and defer to the trial court's broad exercise of discretion. (In re K.B., supra, 238 Cal.App.4th 989, 995.)

While the scope of the trial court's discretion is exceedingly broad, the scope of the foundational question presented is quite narrow. "The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered. [Citation.] Essentially, what is necessary is a prima facie case. 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' [Citation.]" (People v. Goldsmith (2014) 59 Cal.4th 258, 267.)

"Importantly, 'the fact that the judge permits [a] writing to be admitted in evidence does not necessarily establish the authenticity of the writing; all that the judge has determined is that there has been a sufficient showing of the authenticity of the writing to permit the trier of fact to find that it is authentic.' [Citation.] Thus, while all writings must be authenticated before they are received into evidence ([Evid. Code, ]§ 1401), the proponent's burden of producing evidence to show authenticity [*9]  ([Evid. Code, ]§ 1400) is met 'when sufficient evidence has been produced to sustain a finding that the document is what it purports to be. [Citation.]' [Citation.] The author's testimony is not required to authenticate a document ([Evid. Code, ]§ 1411); instead, its authenticity may be established by the contents of the writing ([Evid. Code, ]§1421) or by other means ([Evid. Code, ]§ 1410 [no restriction on the 'means by which a writing may be authenticated'])." (People v. Valdez (2011) 201 Cal.App.4th 1429, 1434-1435 (Valdez).)

During pretrial motions in limine, Taylor sought to exclude any mention of a drug debt owed to Skific's father and Instagram communications between Taylor and Aranda mentioning the debt. The prosecutor took the position that the contentious exchange on Instagram between Taylor and Aranda regarding a drug debt was relevant to show a motive for homicide. The trial court excluded evidence of rumors of a drug debt on the street based on relevancy and hearsay, but concluded the Instagram exchange was relevant to show some type of argument and relationship, and therefore possibly motive.

The issue resurfaced at trial when the prosecution decided to introduce the Instagram messages and the defense objected. The trial court overruled the defense objections explaining as follows: "I believe first [*10]  of all the uploading of the Instagrams as to the victim, 'vickfukndamone' is [sic] guess is his screenshot name with pictures is relevant. Shows the name, pictures of the victim, and the picture of the victim apparently is he's also there with two kids, his kids, I don't know."

The trial court continued: "[T]he alleged victim is having a conversation with 'smackcityboy', when you download 'smackcityboy', the pictures that pop up are pictures of Mr. Taylor. So one could assume that 'smackcityboy' is Mr. Taylor.

"Could somebody else have typed that in? Certainly. There's ways to hack in, but it is circumstantial evidence that that is Mr. Taylor. So the common denominator is we have a conversation between the alleged victim and Mr. Taylor. The conversation seems to talk about money being owed to somebody. Whether or not it's owed to Mr. Taylor or not, Mr. Taylor is getting involved in that conversation and involved in retrieving that debt. So it is relevant for that as it goes to the motive. Then it shows the pictures of Mr. Taylor, which shows that that is his account.

"I find that — because of the dates, the date of the downloading of the message appears to be a month or two prior to the death [*11]  of Mr. Aranda, correct?" After the prosecutor answered affirmatively the court concluded: "So I find it is within a time frame, that the names and pictures that come up with these names is relevant, and I will allow it."

A detective testified that he logged into Instagram on February 3, 2014, and pulled up the account by the user name vickfukndamone and determined from the photos on the account that it belonged to Aranda. The detective found a post from another user with the screen name smackcityboy regarding some paper that did not get paid. From photos on smackcityboy's Instagram account, the detective opined the account was Taylor's.

The detective read the exchange of posts between Aranda and Taylor to the jury.

Taylor complains that no one authenticated the Instagram posts. He did not testify that he had written the posts; nor did anyone from Instagram testify. He insists there is no evidence that the messages were sent from his computer or that he even had a computer. He contends that no one testified about the creation of the Instagram messages or accounts, the accuracy of the dates and times, the ability of third parties to access the accounts, or the certainty of determinations [*12]  as to who owns a page.

A similar claim was made and rejected in Valdez, supra, 201 Cal.App.4th 1429. The court looked to indicia on the defendant's MySpace social media Internet page including photographs and personal comments and content to authenticate it. There were pictures of the defendant on the page, greetings to him from his sister, and comments that were either addressed to him by name or relation. The defendant did not dispute that he was the person depicted in the photographs, including the photograph of his face serving as the MySpace page icon identifying the owner of the page. (Id. at p. 1435.) The court explained: "[T]he writings on the page and the photograph corroborated each other by showing a pervading interest in gang matters, rather than an anomalous gesture. Importantly, this consistent, mutually reinforcing content of the page helped authenticate the photograph and writings, with no evidence of incongruous elements to suggest planted or false material. Other key factors include that the evidence strongly suggested the page was Valdez's personal site . . . and that the page was password protected for posting and deleting content, which tended to suggest Valdez, as the owner of the page, controlled the posted material." [*13]  (Id. at p. 1436.)

The court concluded: "Although Valdez was free to argue otherwise to the jury, a reasonable trier of fact could conclude from the posting of personal photographs, communications, and other details that the MySpace page belonged to him. Accordingly, the trial court did not err in admitting the page for the jury to determine whether he authored it." (Valdez, supra, 201 Cal.App.4th at p. 1435.)

Similarly, in In re K.B., supra, 238 Cal.App.4th 989, the court found photographs from a cell phone, including website screenshots, had been sufficiently authenticated, explaining the "ultimate determination of the authenticity . . . is for the trier of fact, who must consider any rebuttal evidence and balance it against the authenticating evidence in order to arrive at a final determination . . . ." (Id. at p. 997.)

The same is true here. The numerous photographs of Taylor, including photographs with his children, is circumstantial evidence that the smackcityboy Instagram account belonged to him. As in Valdez, Taylor was free to argue otherwise to the jury or to introduce evidence it was not his account or that someone had hacked his account. But the content of the Instagram account was sufficient to uphold an ultimate jury determination of authenticity and for us to conclude, as the [*14]  courts did in Valdez and In re K.B., the trial court did not abuse its discretion by admitting the evidence.

Relying on People v. Beckley (2010) 185 Cal.App.4th 509 (Beckley), Taylor insists that the photographs on smackcityboy's account were not legally sufficient for authentication. In Beckley, the court observed that digital photographs can be altered and "'[a]nyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content of any web-site from any location at any time.'" (Id. at pp. 515-516, quoting St. Clair v. Johnny's Oyster & Shrimp, Inc. (S.D.Tex. 1999) 76 F.Supp.2d 773, 775.) In the absence of testimony from a police officer that the photograph truly portrayed the girlfriend flashing a gang sign or from an expert that the picture was not a composite or faked, the court in Beckley concluded it was not properly authenticated, and therefore, was not admissible. (Beckley, at pp. 514-516.)

Beckley has been distinguished and its rationale rejected. The court in Valdez distinguished Beckley. "Here, in contrast, evidence of the password requirement for posting and deleting content distinguishes Beckley, as does the pervasive consistency of the [*15]  content of the page, filled with personal photographs, communications, and other details tending together to identify and show owner-management of a page devoted to gang-related interests." (Valdez, supra, 201 Cal.App.4th at p. 1436.)

The court in In re K.B. was more critical. "To the extent Beckley's language can be read as requiring a conventional evidentiary foundation to show the authenticity of photographic images appearing online, i.e., testimony of the person who actually created and uploaded the image, or testimony from an expert witness that the image has not been altered, we cannot endorse it. Such an analysis appears to be inconsistent with the most recent language in Goldsmith which explained that in authenticating photographic evidence, the evidentiary foundation 'may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded. [Citations.]' (Goldsmith, supra, 59 Cal.4th at p. 268.) . . . [¶] Furthermore, reading Beckley as equating authentication with proving genuineness would ignore a fundamental principle underlying authentication emphasized in Goldsmith. In making the initial authenticity determination, the court need only conclude that a prima facie showing has been made that the photograph [*16]  is an accurate representation of what it purports to depict. The ultimate determination of the authenticity of the evidence is for the trier of fact, who must consider any rebuttal evidence and balance it against the authenticating evidence in order to arrive at a final determination on whether the photograph, in fact is authentic." (In re K.B., supra, 238 Cal.App.4th 989, 997.)

We agree. The content contained in smackcityboy's Instagram account was a sufficient prima facie showing to justify the trial court's admission of the evidence. While the potential weaknesses of the evidence presented perfect fodder for argument to the jury, the weaknesses go to the weight, not to the admissibility of the evidence. On this record, we can find no abuse of discretion.

2. Violations of Due Process

Both defendants challenge the admissibility of the Instagram posts on constitutional grounds much graver than the lack of authentication. Taylor argues the evidence constituted unreliable hearsay, and in the absence of particularized guarantees of trustworthiness, violated his right to due process under the Fourteenth Amendment. Both defendants contend the admission of speculative and untenable motive evidence also violated their Fourteenth Amendment right to due process. We will not [*17]  nullify the jury's verdict based on supposed constitutional challenges that are nothing more than a challenge to the weight of the evidence.

We begin with the hearsay objection. Defendants insist the Instagram posts were inherently unreliable, and therefore, in the absence of special indicia of reliability, the admission of the evidence violated their right to due process. We have already rejected defendants' notion that the Instagram evidence is unreliable and lacks trustworthiness. The content of the smackcityboy's Instagram account was sufficient evidence of trustworthiness.

The jurors were instructed that the Instagram posts was evidence they could consider only against Taylor, not Guajardo. Nevertheless, Guajardo maintains the limiting instruction could not ameliorate the prejudice he suffered as a result of the admission of the speculative and untenable evidence of motive purportedly contained in Taylor's Instagram posts. Again both defendants' premise is that the evidence was speculative and untenable.

This argument has little to do the admissibility of social media evidence as a matter of constitutional law. Rather, it speaks to the appropriate weight to be assigned the evidence [*18]  as proof of motive. We agree with defendants that the evidence of motive was weak. The only evidence of motive was one brief exchange between Taylor and Aranda two months before the shooting in which Taylor said nothing contentious or threatening. Moreover, the drug debt apparently was owed to Skific's father, not directly to Taylor. But to agree the evidence is weak is not to agree that it is speculative or untenable. In other words, the argument suffers from the same flaw—it attempts to magnify weak evidence into a constitutional transgression.

There is no dispute that the prosecution did not have the burden to prove motive, but evidence of motive is relevant and admissible. The prosecution's theory in this case was that Taylor and Guajardo had preplanned the shooting because of the outstanding debt, a part of which Taylor claimed would be paid to him. As part of that theory, the prosecutor argued that Taylor lured Aranda down the driveway to give Guajardo a clear shot. There were, of course, many other theories as to how and why defendants both ended up at the Cortez house that evening and their lawyers clearly made the case to the jury that their meeting was fortuitous and unplanned. [*19]  It was the jury's prerogative, not ours, however, to reject the notion that Taylor would plan a shooting to collect on a debt to his girlfriend's father and any weakness in the evidence of motive does not impinge on the defendants' right to due process.


Argument on Reasonable Doubt

Defendants contend the trial court erred as a matter of law by requiring Taylor's lawyer to confine his closing argument regarding reasonable doubt to the terminology set forth in the standardized jury instructions. Defendants urge us to review the trial court's ruling de novo. The Attorney General, on the other hand, points out that the trial court has considerable discretion in monitoring closing argument, and therefore, we must review the trial court's ruling for an abuse of discretion. Because the California Supreme Court has endorsed the reasonable doubt instruction and appellate courts have admonished trial courts not to stray too far from the approved language, we cannot say the trial court abused its discretion by disallowing defense counsel's request to argue to the jury that beyond a reasonable doubt means to a "near certainty." Nor can we say that restricting argument to the law embodied in the [*20]  standardized instruction constitutes a mistake of law.

Before trial, Taylor's lawyer asked permission to argue that the reasonable doubt standard requires the prosecution to prove its case to a near certainty. The trial court denied the motion, explaining: "Court is uncomfortable with certainty or near certitude. I believe [the] Supreme Court has spoken with regard to the way that beyond a reasonable doubt can be argued. I believe that the best way to argue it is to use the language within the actual instruction with regard to that. So near certainty and near certitude I feel may be confusing to a jury and may run contrary to what the actual definition of reasonable doubt is. I will not allow that."

Penal Code section 10962 defines reasonable doubt. "'It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.'" Because a jury cannot discharge its essential role in the administration of criminal justice without a clear [*21]  understanding of reasonable doubt, the Legislature has furthered declared: "In charging a jury, the court may read to the jury Section 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given." (§ 1096a.) In accordance with these principles, the jury was instructed in the language of CALCRIM No. 220 that "[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt."

It is true that there are old cases in which the courts have equated proof beyond a reasonable doubt with "near certainty." (See, e.g., In re Roderick P. (1972) 7 Cal.3d 801, 808-809; People v. Redmond (1969) 71 Cal.2d 745, 756; People v. Hall (1964) 62 Cal.2d 104, 112; People v. Wade (1971) 15 Cal.App.3d 16, 26.) Before 1995, however, section 1096 also included the language "to a moral certainty," which was eliminated from the statute in 1995. (See Historical and Statutory Notes, 50B West's Ann. Pen. Code (2004 ed.) foll. § 1096, p. 287.) CALCRIM No. 220 embodies the changes in the law.

In People v. Carrillo (2008) 163 Cal.App.4th 1028, 1039, the defendant objected to the use of CALCRIM No. 220, arguing that the instruction should have been modified to also state that "abiding conviction" means "convincing you to a near certainty of the truth of the charge." The court held it was not error for [*22]  the trial court to refuse the modification because the propriety of the instruction had been upheld many times. (Carrillo, at p. 1039.)

Defendants advance the argument one step further. They do not challenge the instruction per se, but insist the trial court erred by refusing their request to stray from the approved language "abiding conviction" and to argue the prosecution must prove its case to a "near certainty." They fail to cite any authority to support the proposition that the failure to allow counsel to embellish on the standardized definition of reasonable doubt constitutes reversible error. If, as defendants assert, abiding conviction is the equivalent of near certainty, we disagree that the trial court's ruling lessened the prosecution's burden of proof and allowed the prosecution a short cut to conviction thereby violating their rights to a fair trial and due process.

Moreover, courts have cautioned against any elaboration or attempt to clarify or improve the language of the standard instructions. (People v. Johnson (2004) 119 Cal.App.4th 976, 986; People v. Castro (1945) 68 Cal.App.2d 491, 497.) "Trial courts have been repeatedly admonished to follow the [reasonable doubt] instruction and subsequently the language of section 1096. Failure to do so is simply inviting error. This is emphasized by the [*23]  act of the Legislature in permitting the section to be read, in which case no further definition need be given." (Castro, at p. 497.) As the United States Supreme Court stated a century ago, "attempts to explain the term 'reasonable doubt' do not usually result in making it any clearer to the minds of the jury." (Miles v. United States (1880) 103 U.S. 304, 312 [26 L.Ed. 481].) By restricting argument to the language perfected in the statute and embodied in CALCRIM No. 220, the trial court was merely following the sage advice of these courts.

We therefore conclude that the trial court did not error as a matter of law by limiting the defense closing argument to the terminology approved in the standardized instruction on reasonable doubt—an instruction that has been time tested and sanctioned by the Supreme Court. Nor can we say the trial court abused its discretion. Although defense counsel should be allowed considerable latitude in fashioning closing argument to advance the defense, we simply cannot say the trial court's decision to insure the jury would not be confused and the law would not be misunderstood was arbitrary, capricious, or patently absurd. And we certainly cannot conclude that the ruling resulted in any manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)


Juvenile Adjudication [*24]  of Attempted Robbery with a Weapon as a Strike

Guajardo argues, and the Attorney General agrees, that the trial court erroneously doubled his sentence by finding a prior juvenile adjudication of attempted robbery with a weapon constituted a strike under the three strikes law. Whether an adjudication constitutes a strike is a question of law we review de novo. (People v. Cromer (2001) 24 Cal.4th 889, 894.)

For a juvenile adjudication to be counted as a strike, the prior offense must be listed in section 707, subdivision (b) of the Welfare and Institutions Code or listed in section 1170.12, subdivision (b) of the Penal Code. Although section 707 of the Welfare and Institutions Code lists 30 different offenses, attempted robbery is not listed. Thus, the attempted robbery cannot form the basis for the strike.

Guajardo also admitted the use of a deadly or dangerous weapon during the attempted robbery, an enhancement under section 12022, subdivision (b)(1) and potentially a serious felony under section 1192.7, subdivision (c). An enhancement pursuant to section 12022, subdivision (b)(1) applies to a person who "personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony." A second, and only remaining qualifying offense, is set forth at Welfare and Institutions Code section 707, subdivision (b)(18), which specifically includes felony offenses in which a minor personally used a weapon as described in section 16590. Section 16590 lists 26 weapons including "a leaded cane or an instrument or weapon of the kind commonly known as a billy, blackjack, [*25]  sandbag, sandclub, sap, or slungshot." (§ 16590, subd. (m).) The Attorney General concedes there are two insurmountable problems.

Guajardo admitted an allegation under section 12022, subdivision (b)(1). He did not admit the use of a particular type of weapon. While disclaiming reliance on the probation report to prove the type of weapon Guajardo used during the attempted robbery, the Attorney General nevertheless points out "for informational purposes only" that the weapon was a baseball bat and sticks. She concedes baseball bats and sticks are not encompassed by section 16590, subdivision (m). The sentencing court is, of course, constitutionally prohibited from fact-finding to enhance a sentence beyond the maximum term. (Descamps v. United States (2013) 570 U.S. ____ [186 L.Ed.2d 438].)

Secondly, section 12022, subdivision (b)(1) enhances a sentence for the use of a deadly or dangerous weapon, but it does not define "deadly" or "dangerous". We accept the Attorney General's concession that a section 12022, subdivision (b)(1) enhancement does not necessarily fit within the parameters of Welfare and Institutions Code section 707, subdivision (b)(18). Here there were no facts stated in support of the plea or established at trial that the weapon Guajardo used fit within the parameters of section 16590. Thus, the trial court erred by utilizing Guajardo's prior juvenile adjudication for attempted robbery with the use of a deadly or dangerous weapon as a strike. His case [*26]  must be remanded for resentencing.

Because we agree with Guajardo and the Attorney General that the trial court's finding that Guajardo had a strike based on a juvenile adjudication must be reversed, Guajardo's additional challenge to the use of the juvenile adjudication for three strikes purposes is moot.


The trial court's determination that Guajardo's juvenile adjudication constituted a strike is reversed. The judgments are otherwise affirmed.


"Instagram is a Web-based photograph sharing platform through which users share user-generated content. Among other things, it provides an application that allows users to upload photos, and share them with others. . . . [W]hen Instagram users create accounts, they create or are assigned usernames and passwords." (In re K.B. (2015) 238 Cal.App.4th 989, 998.)

Further undesignated statutory references are to the Penal Code.

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