THE PEOPLE v. WILBERT LEE STREET (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Wilbert Lee Street shot Isidro Curiel.   A jury found him guilty of attempted willful, deliberate, and premeditated murder.   The court found true the allegations of two serious felony priors and the allegation of personal and intentional discharge of a firearm proximately causing great bodily injury.   On appeal, he argues improper denial of his request for juror identifying information, insufficiency of the evidence, improper admission of his attempted murder prior, and errors in the court's imposition of a fine and in the court's calculation of local conduct credit.   We modify the court's calculation of custody credits but otherwise affirm the judgment.

BACKGROUND

On February 27, 2009, a second amended information charged Street with committing attempted willful, deliberate, and premeditated murder (count 1;  Pen.Code, §§ 187, subd. (a), 664, subd. (a)) ¹ and felon in possession of a firearm (count 2;  § 12021, subd. (a)(1)) on June 2, 2008.   In count 1, the information alleged, inter alia, personal use of a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)), personal and intentional discharge of a firearm (§ 12022.53, subd. (c)), personal and intentional discharge of a firearm proximately causing great bodily injury (§ 12022.53, subd. (d)), and personal infliction of great bodily injury (§ 12022.7, subd. (a)).  In both counts, the information alleged, inter alia, two Nevada priors - a 1981 attempted murder and a 1968 rape - as serious felony priors (§ 667, subd. (a)(1)) and as serious and violent felonies (§§ 667.5, subds.(c)(3), (c)(12), (f), 1170.12, subd. (b)(2), 1192.7, subds. (c)(3), (c)(9)) within the scope of the three strikes law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)).

On May 26, 2009, the court bifurcated the allegations of the priors.   On June 1, 2009, a jury found Street guilty as charged and found the firearm and great bodily injury allegations true.   On June 3, 2009, the court found the bifurcated allegations of the priors true.

On October 30, 2009, the court imposed an aggregate 60-to-life sentence - an indeterminate term of 25 years to life for personal and intentional discharge of a firearm proximately causing great bodily injury consecutive to an indeterminate term of 25 years to life for attempted willful, deliberate, and premeditated murder consecutive to a determinate term of 5 years on one serious felony prior consecutive to a determinate term of 5 years on the other serious felony prior.   The court stayed sentence on the felon in possession of a firearm and on all other allegations.

ISSUES ON APPEAL

Street argues that (1) the denial of his post-conviction motion for access to juror identifying information to investigate possible juror misconduct for a new trial motion was an abuse of discretion, (2) an insufficiency of the evidence of premeditation and malice requires reversal of the judgment of conviction of attempted willful, deliberate, and premeditated murder, (3) the admission of his attempted murder prior on the issue of intent was an abuse of discretion and a due process violation, and (4) the imposition of a court facilities assessment violates the ex post facto clause.   Finally, (5) Street argues, the Attorney General agrees, and we concur that the court incorrectly calculated his local conduct credit.

DISCUSSION

1.  Juror Identifying Information

Street argues that the denial of his post-conviction motion for access to juror identifying information to investigate possible juror misconduct for a new trial motion was an abuse of discretion.   The Attorney General argues the contrary.

On June 3, 2009, two days after the jury's verdicts, Street's attorney voiced his “concern about the brevity of the jury deliberations,” stated his desire “to undertake an investigation” into deliberations lasting “only a total of 34 minutes,” and asked for “an order releasing contact information for the jury.”   The court set a filing schedule for a written motion and a written opposition.

On June 8, 2009, the defense filed a motion for the release of juror identifying information to “explore the possibility of an unduly prejudiced verdict.”  “At and after the time of verdict,” Street's attorney represented, he “was unable even to attempt to meet with jurors as several additional matters were discussed post verdict.”   He stated his opinion “that the jury did not deliberate as required by law.   Had they done so a different outcome could have been possible.”   He stated his belief “that there are appealable issues present, or potentially a motion for a new trial, based on the conduct of the jurors.”

On June 16, 2009, the prosecutor filed an opposition arguing that Street was “not entitled to the release of juror information in order to engage in a fishing expedition.”   The defense rationale, he argued, was simply “that the verdict was too quick, so there must have been juror misconduct.”   He characterized the defense motion as “purely speculation that lacks specificity and factual support.”

At the hearing on the motion on August 4, 2009, Street's attorney acknowledged “a quick verdict is not grounds itself” to suspect “anything improper in the jury room” but argued that “the complexities of this case and the fact that the jury was only out for about 35 minutes” indicate to a reasonable person “that there was no discussion of the case” and that the jury did nothing “except vote.”   He noted that “the jury came back at around 5:00 o'clock in the afternoon,” that the bifurcation was still pending, and that he “was not given time to go out and talk to the jury afterwards.”

In opposition, the prosecutor argued that the defense motion was “conjecture” without “any facts to support a reasonable belief of juror misconduct.”   With neither an “investigation” nor any “contact with the jurors,” he argued, the motion was “basically” a “fishing expedition,” adding that the defense investigator, who was present in court with Street's attorney, could have made contact with the jurors.

After hearing argument, the court summarized the chronology in the minutes, which showed that “the jury went out at approximately 3:55 in the afternoon,” “had a question in reference to lesser includeds that was addressed by the Court with both parties present at approximately 4:49,” and “returned at approximately 4:55 with a verdict.”   Noting, too, that “both counsel waived polling of the jury after the verdict was read,” the court found insufficient cause and denied the motion.

The statutory guidelines for the disclosure of juror identifying information are clear.  Code of Civil Procedure section 206 ² authorizes criminal defense counsel to make a request of the court pursuant to Code of Civil Procedure section 237,³ which authorizes disclosure only on a showing of facts sufficient to establish good cause.   The standard of review of a court's denial of a defense motion to compel disclosure of juror identifying information is abuse of discretion.  (People v. Jones (1998) 17 Cal.4th 279, 317.)

Street focuses on the comment by the court that “both counsel waived polling of the jury after the verdict was read.”   He infers from that comment a belief by the court that “defense counsel's waiver of polling of the jurors somehow should be treated as a forfeiture or ground for denying the request for access to the trial jurors,” and he argues, quoting from People v. Atkins (1988) 203 Cal.App.3d 15 (Atkins ),⁴ that “a waiver of polling the jury should not estop the defendant from bringing a motion for new trial.”  (Id. at p. 26.)   Inference, however, is quite different from “facts sufficient to establish good cause for the release of the juror's personal identifying information.”  (Code Civ. Proc., § 237, subd. (b).)  One could equally well infer from that comment nothing but frustration by the court that if only the defense not been mute on the day of the verdicts the issue could have been resolved at that time without the inefficiency of calendaring a later hearing for argument on the basis of written filings by both parties.

Dueling inferences aside, the record shows but a single fact in the defense showing - the brevity of the deliberations (which the court's review of the record put at roughly an hour).   Statutory guidelines for the disclosure of juror identifying information “indicate a legislative intent to require the defendant show good cause for disclosure and not engage in merely a fishing exhibition.”  (People v. Wilson (1996) 43 Cal.App.4th 839, 852.)   Here, as in Atkins, Street's showing of only “the brevity of the deliberations” fails to “demonstrate jury misconduct.”  (Atkins, supra, 203 Cal.App.3d at p. 25.)   The court's denial of his entirely speculative motion shows no abuse of discretion.

2. Sufficiency of the Evidence

Street argues that an insufficiency of the evidence of premeditation and malice requires reversal of the judgment of conviction of attempted willful, deliberate, and premeditated murder.   The Attorney General argues the contrary.

On appeal, our role on a challenge to the sufficiency of the evidence is limited.  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)   Our duty is to review the whole record in the light most favorable to the judgment for substantial evidence - that is, credible and reasonable evidence of solid value - that could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt.  (Jackson v. Virginia (1979) 443 U.S. 307, 318;  People v. Prince (2007) 40 Cal.4th 1179, 1251 (Prince ).)   By that standard, which applies to both circumstantial and direct evidence, our duty is to presume in support of the judgment the existence of every fact a reasonable trier of fact reasonably could have deduced from the evidence.  (Prince, supra, at p. 1251.)

So viewed, the evidence at trial established the following.   For a year or so, Street and Marianne Flores were next door neighbors.   When Street told her that he was a lonely man who wanted company, she told him that she was with somebody and that she didn't get involved with her neighbors.   Every time she went outside, Street “would pop up” and “just be watching” her.   Every time he did that, he made “noises like um.”

About a month before the shooting, Flores's boyfriend Curiel shouted at Street not to look at Flores.   Street yelled back that he could look at anyone whenever he wanted.   Curiel shouted back that he “was going to beat him up or strike him and call the police.”

On the day of the shooting, Flores was in her backyard with Curiel when she saw Street standing on something and staring over the fence at her.  “Oh, my God,” she said, “He's watching me,” and she ran back into the house.   Curiel reminded Street he had told him a month ago he “was going to beat him up or strike him and call the police.”   Street replied, “Well, let's go to the street.”

Anticipating a fistfight, Curiel walked toward the street, but he picked up a brick when he saw a hammer in Street's hand since he did not want to fight barehanded.   Curiel and Street began arguing.   Flores went outside after her nephew told her about the argument.   By the time she got outside, Street had gone inside.   Flores and Curiel, who still had the brick in his hand, started talking on the sidewalk with Street's aunt.

Suddenly, Street walked back outside with a gun in his hand.   Flores yelled, “He has a gun.”   Within moments, Street “lifted the gun up” and, from eight to 10 feet away, “started shooting.”   After two bullets struck Curiel, one in the chest and one in the arm, he threw the brick at Street, knocking him to the ground.

The crux of Street's argument is that he acted in self-defense in the heat of passion during a sudden quarrel in the honest and mistaken belief that a resort to deadly force was necessary to avert a threat of death or great bodily injury at the hands of Curiel, the initial aggressor and provocateur, who armed himself with a deadly weapon.   Yet substantial evidence supports the jury's findings to the contrary.   Even if we might have “drawn different inferences, we are not permitted to reverse the judgment if the circumstances reasonably justify those found by the jury.”  (People v. Perez (1992) 2 Cal.4th 1117, 1126.)  “The act of firing toward a victim at a close, but not point blank, range ‘in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill,’ ” which establishes express malice.  (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690, quoting People v. Lashley (1991) 1 Cal.App.4th 938, 945;  cf. § 188.)   Our review of the whole record persuades us that a sufficiency of the evidence of premeditation and malice is in the record.  (Prince, supra, 40 Cal.4th at p. 1251.)   Street's insufficiency of the evidence argument simply asks us to reweigh the facts.   That we cannot do.  (People v. Bolin (1998) 18 Cal.4th 297, 331-333.)

3. Admission of Attempted Murder Prior

Street argues that the admission of his attempted murder prior on the issue of intent was an abuse of discretion and a due process violation.   The Attorney General argues the contrary.

On February 24, 2009, the prosecutor filed a motion in limine seeking the admission of Street's attempted murder prior on the ground of relevance to proof of intent, not disposition, to commit the charged crime.  (Evid.Code, § 1101, subd. (b).) ⁵  On February 25, 2009, the court heard argument and ruled on the motion.   The court's minute order states, “Rulings stated for the record.”   The reporter's transcript of those rulings, as the parties here concur, was “irretrievably lost due to equipment failure.”

On March 3, 2009, the court, having previously asked the prosecutor “to try to obtain the jury trial transcript of the 1981 case involving the 1101(b) evidence,” granted a defense motion for a continuance to investigate the prior.   On May 26, 2009, the court, informed that the prosecutor was not able to obtain the jury trial transcript, confirmed the “prior ruling” to “allow the 1101(b) evidence as to the limited purpose.”

On May 27, 2009, Joe Kemp testified about the attempted murder prior.   He recalled leaving his leather jacket on a chair when he went to dance and finding the jacket gone when the dance was over.   After looking without success for his jacket inside the club, he ran outside and saw a man trying to leave the parking lot with his jacket.   He snatched his jacket from the man who, after a brief fistfight, stabbed him four or five times, collapsed a lung, and almost killed him.   He could not identify the man in court in California but recalled testifying against a man named Wilbert Street at trial in Nevada.

On May 28, 2009, the defense asked the court to strike Kemp's testimony on the ground of irrelevance to the issue of intent, a colloquy ensued about possible relevance to the issues of common plan and scheme, and the court observed that additional authorities “would certainly be helpful.”   On May 29, 2009, the court requested the filing of points and authorities.   On June 1, 2009, the prosecutor filed points and authorities arguing relevance to intent, common plan and scheme, and self-defense;  the defense filed points and authorities arguing irrelevance and prejudice;  and the court, after hearing argument, found the evidence admissible as more probative than prejudicial on the issues of intent and self-defense.  (Evid.Code, § 352.)

On September 4, 2009, Street filed a new trial motion arguing, inter alia, that the admission of his attempted murder prior was prejudicial error.   On September 11, 2009, the prosecutor filed an opposition.   On September 25, 2009, Street filed another new trial motion on, inter alia, the same ground.   On October 22, 2009, the prosecutor filed an opposition.   On October 27, 2009, the court heard argument and denied the motions.

On the premise that “the victims and/or methods of attack” of the charged crime and the prior “are not similar,” Street challenges the admission of his attempted murder prior as “not sufficiently relevant to outweigh the inherent potential for undue prejudice.”  (See, e.g., People v. Lewis (2001) 26 Cal.4th 334, 373, citing Evid.Code, § 352.⁶ )  “The admissibility of evidence of uncharged offenses ‘depends upon three principal factors:  (1) the materiality of the fact sought to be proved or disproved;  (2) the tendency of the uncharged crime to prove or disprove the material fact;  and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.’ ”  (People v. Carter (1993) 19 Cal.App.4th 1236, 1246, italics in original, quoting People v. Thompson (1980) 27 Cal.3d 303, 315 (Thompson ), questioned on another ground by People v. Rowland (1992) 4 Cal.4th 238, 260.)

Since the focus of Street's challenge to the admission of his prior on the issue of intent is similarity, the second factor in Thompson is in play.   On that factor, the “least degree of similarity” between the charged crime and the prior “is required in order to prove intent.”  (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt ), superseded by statute on another ground as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505.)   The “ ‘recurrence of a similar result,’ ” Ewoldt observes, “ ‘tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act.’ ”  (Ewoldt, supra, at p. 402, italics added.)

Elaborating on the showing necessary for a prior “to be admissible to prove intent,” Ewoldt notes that “the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘probably harbor[ed] the same intent in each instance.’ ”  (Ewoldt, supra, 7 Cal.4th at p. 402, italics added.)   Substantial prejudicial effect is inherent in that evidence, of course, so priors are admissible “ ‘only if they have substantial probative value.’ ”  (Id. at p. 404, quoting Thompson, supra, 27 Cal.3d at p. 318, italics in original.)

The deferential abuse of discretion standard applies to our review of the order admitting Street's attempted murder prior.  (People v. Hoyos (2007) 41 Cal.4th 872, 898;  Ewoldt, supra, 7 Cal.4th at p. 405.)   Our review of the record shows that, on voir dire, his attorney foreshadowed the evidence the jury was going to hear about his prior, asked the prospective jurors if anyone was going to hold that evidence against him, and received not one affirmative reply.   Counsel's opening statements likewise appropriately framed the evidence of his prior.   The prosecutor said Kemp was going to testify that after he confronted Street about taking his jacket at a night club Street stabbed him with a knife.   Street's attorney said the evidence was going to show that when he shot Curiel he “had a reasonable belief that his life was in danger” and “acted with a reasonable belief that he had to defend himself” since Curiel “was armed with a deadly weapon.”

The court carefully instructed on the limited use of the prior on the issues of intent and self-defense (CALCRIM No. 375), on the requirement of a finding of intent to kill as a prerequisite to a finding of guilt of attempted murder (CALCRIM Nos. 252, 600), and on the defense theory of self-defense (CALCRIM No. 505).   In argument to the jury, the prosecutor briefly analogized the attempted murder prior - “Fist to fist, then a knife,” he argued, “Street starts the fight” and then “ends the fight by stabbing the guy” - to the charged attempted willful, deliberate, and premeditated murder - “Street sees a brick, got to get my gun, all right.”   Street's attorney argued the intrinsic improbability that “what happened in 1981 ․ somehow proves the intent in this case, 28 years later,” adding, “We don't know what motivated us 28 years ago.”

Our review of the record by the deferential abuse of discretion standard satisfies us that the court's admission of Street's prior as substantially probative on the issue of intent was not an abuse of discretion.   Since the premise implicit in his due process argument is that the court's ruling was an abuse of discretion, his constitutional argument is equally meritless.  (See People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.)

4.  Imposition of Restitution Fines

Street argues that the imposition of a court facilities assessment violates the ex post facto clause.   The Attorney General argues the contrary.

Street's rationale is that although the effective date of the statute authorizing the imposition of a court facilities assessment “on every conviction for a criminal offense” was January 1, 2009, he committed the crimes on June 2, 2008.  (Gov.Code, § 70373, subd. (a)(1);  Stats.2008, ch. 311, § 6.5.) The date of conviction, not the date of the commission of the crime, controls the application of the statute.  (People v. Phillips (2010) 186 Cal.App.4th 475, 477.)   A court facilities assessment is a fee that implements the legislative intent to “ensure and maintain adequate funding for court facilities,” not a fine with a punitive purpose or a nexus to the gravity of the crime.  (Gov.Code, § 70373, subd. (a)(1);  People v. Knightbent (2010) 186 Cal.App.4th 1105, 1111-1112;  cf.  People v. Alford (2007) 42 Cal.4th 749, 755-759.)   His ex post facto argument is meritless.

5. Calculation of Local Conduct Credit

Street argues, the Attorney General agrees, and we concur that the court failed to calculate 77 days of local conduct credit which, with 516 days of actual custody credit, yield a total of 593 days of presentence credit, with the understanding the Department of Corrections and Rehabilitation might later determine he is statutorily ineligible for local conduct credit.⁷ (§ 2933.5;  People v. Goodloe (1995) 37 Cal.App.4th 485, 488-495.)   We so modify the judgment.⁸

DISPOSITION

The judgment is modified to show 77 days of local conduct credit which, with 516 days of actual custody credit, yield a total of 593 days of presentence credit, with the understanding the Department of Corrections and Rehabilitation might later determine that Street is statutorily ineligible for local conduct credit.   The matter is remanded with directions to issue an appropriately amended abstract of judgment and to send a certified copy to the Department of Corrections and Rehabilitation.⁹  Street has no right to be

present at those proceedings.  (See People v. Price (1991) 1 Cal.4th 324, 407-408.)   As modified, the judgment is affirmed.

Gomes, J.

WE CONCUR:

Cornell, Acting P.J.

Dawson, J.

FOOTNOTES

FN1. Later statutory references are to the Penal Code unless otherwise noted..  FN1. Later statutory references are to the Penal Code unless otherwise noted.

FN2. The statute provides:  “Pursuant to Section 237, a defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.   This information consists of jurors' names, addresses, and telephone numbers.   The court shall consider all requests for personal juror identifying information pursuant to Section 237.”  (Code Civ. Proc., § 206, subd. (g).).  FN2. The statute provides:  “Pursuant to Section 237, a defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.   This information consists of jurors' names, addresses, and telephone numbers.   The court shall consider all requests for personal juror identifying information pursuant to Section 237.”  (Code Civ. Proc., § 206, subd. (g).)

FN3. The statute provides:  “Any person may petition the court for access to these records.   The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information.   The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure.   A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm.   If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.”  (Code Civ. Proc., § 237, subd. (b).).  FN3. The statute provides:  “Any person may petition the court for access to these records.   The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information.   The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure.   A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm.   If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.”  (Code Civ. Proc., § 237, subd. (b).)

FN4. Overruled on another ground by People v. Jones (1990) 51 Cal.3d 294, 322..  FN4. Overruled on another ground by People v. Jones (1990) 51 Cal.3d 294, 322.

FN5. In relevant part, the statute provides:  “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident ․ ) other than his or her disposition to commit such an act.”  (Evid.Code, § 1101, subd. (b).).  FN5. In relevant part, the statute provides:  “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident ․ ) other than his or her disposition to commit such an act.”  (Evid.Code, § 1101, subd. (b).)

FN6. The statute provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”  (Evid.Code, § 352.).  FN6. The statute provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”  (Evid.Code, § 352.)

FN7. On February 4, 2010, Street's appellate counsel filed a motion in the superior court to so correct the calculation of local conduct credit, but the motion was denied on February 9, 2010..  FN7. On February 4, 2010, Street's appellate counsel filed a motion in the superior court to so correct the calculation of local conduct credit, but the motion was denied on February 9, 2010.

FN8. In a footnote in the respondent's brief, the Attorney General requests that we take judicial notice of the file in People v. Street (F059165), an appeal by the district attorney from the “imposition of an unlawful sentence” in the matter before us. (§ 1238, subd. (a)(10).)   The applicable rule of court requires:  “To obtain judicial notice by a reviewing court under Evidence Code section 459, a party must serve and file a separate motion with a proposed order.”  (Cal. Rules of Court, rule 8.252(a)(1).)   We deny the Attorney General's request but for judicial efficiency take judicial notice on our own motion of the record in People v. Street (F059165).  (Evid.Code, §§ 452, subd. (d)(1), 459, subd. (a).).  FN8. In a footnote in the respondent's brief, the Attorney General requests that we take judicial notice of the file in People v. Street (F059165), an appeal by the district attorney from the “imposition of an unlawful sentence” in the matter before us. (§ 1238, subd. (a)(10).)   The applicable rule of court requires:  “To obtain judicial notice by a reviewing court under Evidence Code section 459, a party must serve and file a separate motion with a proposed order.”  (Cal. Rules of Court, rule 8.252(a)(1).)   We deny the Attorney General's request but for judicial efficiency take judicial notice on our own motion of the record in People v. Street (F059165).  (Evid.Code, §§ 452, subd. (d)(1), 459, subd. (a).)

FN9. For judicial efficiency, the abstract of judgment should be modified concurrently with the modification of the abstract of judgment ordered in People v. Street (F059165)..  FN9. For judicial efficiency, the abstract of judgment should be modified concurrently with the modification of the abstract of judgment ordered in People v. Street (F059165).