Opinion
E071395
04-28-2020
THE PEOPLE, Plaintiff and Respondent, v. FRED CLINTON GOMEZ, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1600607) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted defendant and appellant, Fred Clinton Gomez, of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 1). The jury also found true the allegations that defendant had two prison priors (§ 667.5, subd. (b)) and two prior strike convictions (§§ 667, subds. (c)-(d), 1170.12, subd. (c)(2)(A)). Defendant was sentenced to 25 years to life.
Unless otherwise noted, all further statutory references are to the Penal Code.
On appeal, defendant contends the trial court prejudicially erred by (1) admitting a jailhouse letter allegedly written by defendant to certain witnesses directing them to coordinate their stories, (2) refusing to strike his 2006 strike conviction for insufficient evidence, and (3) refusing to strike his 2006 strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We reject defendant's contentions and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Around 1:00 a.m. in May 2016, a Hemet Police Department detective ran the license plate of a car driving by him. Defendant was in the front passenger seat. After running the license plate, the detective learned that the vehicle's registration had been expired for over a year, so he attempted to stop it, but it sped off. According to the detective, as the car drove away into incoming traffic, defendant threw a rifle out of the passenger window. The car's occupants, including defendant, then jumped out of the car while it was still moving and ran in different directions.
Defendant was found hiding in the backyard of a nearby house. Defendant denied having been in the car and claimed he was "just walking around looking for his girlfriend." When arresting defendant, officers found a bag of heroin by his feet. Another officer went to where the rifle was thrown from the vehicle and recovered the rifle, which was found in the middle of the street. Upon searching the car, officers observed that all of the windows were rolled up except for the front passenger window.
While defendant was in custody awaiting trial, a correctional officer found a letter he believed defendant had written in an attempt to "coordinate" the stories of his friend and girlfriend, who would testify on his behalf. The letter said in relevant part that "[my friend] is my other witness," and he and defendant's girlfriend "can coordinate stories."
Defendant was charged with one count of being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 1), and one count of possession of heroin while armed with a firearm (Health & Saf. Code, § 11370.1; count 2). The information also alleged that defendant had two prison priors within the meaning of section 667.5, subdivision (b), and two prior strike convictions within the meaning of section 667, subdivisions (c) and (e)(2)(A), and section 1170.12, subdivision (c)(2)(A). The jury convicted defendant of count 1, but could not reach a verdict as to count 2, so the trial court declared a mistrial as to that count. The jury, however, found true all of the prison prior and strike allegations.
The information alleged defendant had three prison priors, but the People dismissed one allegation.
Defendant timely appealed.
III.
DISCUSSION
A. The Trial Court Did Not Prejudicially Err By Admitting the Letter
Defendant contends his conviction on count 1 must be reversed because the trial court erroneously admitted the letter he allegedly wrote trying to "'coordinate'" witnesses, which he asserts was inadmissible. We disagree.
While in pretrial custody, a correctional officer found a letter on a scrap of paper in an inmate's cell. The letter stated in relevant part, "D if you got phone time you may want to call my lil bro Guy [Davis] [at this number] to let him know the angle took. He has been hunting her down since she messengered him about not being at my last court date cuz she was busted. He is my other witness and they can coordinate stories. My lawyer will tell her exactly what to say. D if you can get her out of that pad and closer to home, I would greatly appreciate it. If possible investigate a little more about that Lil Kid Isaac cuz I would bet something has happened." Defendant moved to exclude the letter as inadmissible for lack of foundation and under Evidence Code section 352. The trial court denied the motion and admitted the letter into evidence with some redactions, including redacting the line "My lawyer will tell her exactly what to say."
In determining whether the trial court erred in admitting the letter, we must determine whether the trial court abused its discretion in finding the letter more prejudicial than probative. "Under Evidence Code section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Cole (2004) 33 Cal.4th 1158, 1195.) Because the decision to admit or exclude evidence under Evidence Code section 352 is committed to the trial court's discretion, we will not disturb a trial court's exercise of that discretion "'"except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."'" (Uspenskaya v. Meline (2015) 241 Cal.App.4th 996, 1000-1001.)
We conclude the trial court did not abuse its discretion by admitting the letter. The trial court did not err in finding that the letter was properly authenticated. "Authentication of a writing is required before it may be received in evidence." (Evid. Code, § 1401, subd. (a).) "Authentication" means "(a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (Evid. Code, § 1400.) We review the trial court's determination that evidence has been properly authenticated for an abuse of discretion. (People v. Rodriguez (2017) 16 Cal.App.5th 355, 373 ["We review the trial court's evidentiary rulings on authentication, foundation, and hearsay for an abuse of discretion."].)
To authenticate the letter, the People called the correctional officer to testify at a hearing under Evidence Code section 402. He explained that he believed defendant wrote the letter based on his experience and familiarity with defendant, including other letters defendant had written that the officer had intercepted and listening to telephone calls defendant had made. The officer testified that he knew the "Guy" referred to in the letter was Guy Davis and that Davis's number listed in the letter was the same number defendant had previously used to call Davis. The letter also referred to "'Lil Kid Isaac'" and someone named "'Crow,'" who the officer knew were defendant's associates because he had referred to them in two other letters defendant wrote that the officer had found, as well as in telephone calls defendant made.
"[I]n a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests." (Evid. Code, § 402, subd. (b).)
Given the circumstances of where the letter was found, its contents, and the officer's familiarity with defendant, we conclude the officer's testimony was sufficient evidence to authenticate the letter. (People v. Gibson (2001) 90 Cal.App.4th 371, 383 ["Circumstantial evidence, content, and location are all valid means of authentication."].) The trial court therefore did not abuse its discretion in admitting it into evidence. We agree with the trial court that there is "no doubt" that the letter "itself is relevant." The letter provided circumstantial evidence of defendant's guilt in that it tended to prove that he attempted to influence the testimony of Davis—who testified on defendant's behalf— and his girlfriend, who defendant intended to call as a witness. The letter therefore was relevant not only to defendant's guilt, but to the credibility of defendant, Davis, and Ramirez. The trial court did not err in finding the letter was relevant. (See CALCRIM No. 371 ["If the defendant tried to create false evidence or obtain false testimony, that conduct may show that [he] was aware of [his] guilt."]; Evid. Code, § 210 ["'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness . . . ."].)
Ramirez did not testify at trial.
Nor was the letter unduly prejudicial. As the People correctly note, "[t]here was nothing inherently prejudicial about the letter, and [defendant] does not point to any specific portion of the letter that he claims necessitated an undue consumption of time, confused the issues, or otherwise misled the jury." In short, defendant fails to explain how the letter was unduly prejudicial under Evidence Code section 352.
B. The Trial Court Did Not Err in Denying Defendant's Motion to Strike His 2006 Prior Strike
1. Background
In 2005, defendant was charged with, among other things, one count of assault in violation of section 245, subdivision (a)(1). The information alleged that defendant committed an assault "with a deadly weapon other than a firearm, to wit: STABBING TOOL and WOODEN STICK, and by means of force likely to produce great bodily injury." In 2006, defendant pled guilty to the charge. As part of the agreement, defendant "agree[d] that [he] did the things that are stated in the charges that [he was] admitting." Defendant also agreed that he would enter a guilty plea to the following charges and enhancements, "count 1 PC 245(a)(1) + admit 'strike' to wit: stabling tool (as strike)." The abstract of judgment identifies the conviction as falling under "PC" "245(A)(1)," then describes it as "ASSLT W/ WEPON LIKELY TO INDUCE GBI."
The People argued defendant's 2006 conviction for violation section 245, subdivision (a)(1) qualified as a strike. Defendant moved to strike the conviction on the grounds that (1) there was insufficient evidence that it qualified as a strike and (2) he did not knowingly and voluntarily enter his guilty plea. The trial court denied the motion.
2. Substantial evidence supports the trial court's finding that defendant's 2006 conviction was a strike
We review the trial court's finding that defendant's 2006 conviction was a strike for substantial evidence. (People v. Roberts (2011) 195 Cal.App.4th 1106, 1132.) In this context, substantial evidence is that which is "reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Id. at p. 1133.) Specifically, we review the record to determine whether there was substantial evidence "that a deadly weapon was in fact used during the commission of defendant's 2006 assault offense. (People v. Banuelos (2005) 130 Cal.App.4th 601, 606.)
The version of section 245, subdivision (a)(1) in effect at the time of defendant's 2006 conviction made it a felony to "commit[] an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." (Stats. 1999, ch. 129, § 1.) For strike purposes, "a conviction under the deadly weapon prong of [former] section 245(a)(1) is a serious felony, but a conviction under the [great bodily injury (GBI)] prong is not." (People v. Delgado (2008) 43 Cal.4th 1059, 1065.)
The People concede the abstract of judgment for defendant's 2006 assault conviction is ambiguous as to whether it "was under the deadly weapon prong or force likely [to cause GBI] prong of former section 245, subdivision (a)(1)." We agree with the People, however, that there is substantial evidence in the record that the conviction was under the deadly weapon prong. (See People v. Delgado, supra, 43 Cal.4th at p. 1065 [appellate courts may consider entire record of conviction to determine whether a section 245 offense is a strike].)
The information alleged defendant violated section 245, subdivision (a)(1) by committing an assault "with a deadly weapon other than a firearm, to wit: STABBING TOOL and WOODEN STICK." Defendant's plea agreement confirms that defendant admitted to having committed the offense with a "stabbing tool" and that he was admitting to the offense "as [a] strike." We conclude substantial evidence supports the trial court's finding that defendant's 2006 assault conviction was for committing the offense with a deadly weapon, which the trial court correctly found qualified as a strike.
3. The Trial Court Did Not Err in Finding Defendant's 2006 Guilty Plea Was Knowing and Voluntary
Defendant argues the trial court erred in concluding his 2006 plea on the assault charge was knowing and voluntary. We disagree.
A criminal defendant who pleads guilty waives three constitutional rights: (1) the privilege against self-incrimination, (2) the right to a jury trial, and (3) the right to confront one's accusers. A waiver of these fundamental constitutional rights must be made knowingly, intelligently, and voluntarily. (Boykin v. Alabama (1969) 395 U.S. 238, 243.) The same rule applies to admitting a prior conviction. (In re Yurko (1974) 10 Cal.3d 857, 863.)
The California Supreme Court in In re Tahl (1969) 1 Cal.3d 122, 132-133, held that the trial court must advise a defendant, on the record, of his or her rights against self-incrimination, to a jury trial, and to confrontation, and the defendant must waive these rights, on the record, before the trial court accepts a guilty plea. (Ibid.) The court later clarified that the requirement of such advisements is a matter of the courts' own supervisory powers and not a matter of federal constitutional law. (People v. Howard (1992) 1 Cal.4th 1132, 1175.) Therefore, even when a trial court fails to advise a defendant of his or her constitutional rights, a guilty plea "is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (Ibid.)
When "the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of 'the entire proceeding' to assess whether the defendant's admission of the prior conviction was intelligent and voluntary in light of the totality of the circumstances." (People v. Mosby (2004) 33 Cal.4th 353, 361.) The "totality of the circumstances test applies in all circumstances where the court fails, either partially or completely, to advise and take waivers of the defendant's trial rights before accepting a guilty plea." (People v. Farwell (2018) 5 Cal.5th 295, 303.) "The focus is not on whether a prior would have been found true, but on whether the defendant knew of his constitutional rights." (People v. Stills (1994) 29 Cal.App.4th 1766, 1770; accord, People v. Mosby, supra, at p. 361.)
In Mosby, "immediately after the jury found defendant guilty . . . [he] was told he had a right to a jury trial on the prior conviction allegation." (People v. Mosby, supra, 33 Cal.4th at p. 364.) He thereafter admitted the prior conviction. (Id. at pp. 357-359.) The Mosby court reasoned that "[the] defendant, who was represented by counsel, had just undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation." (Id. at p. 364.) In addition, the Mosby court pointed out that "'a defendant's prior experience with the criminal justice system' is . . . 'relevant to the question [of] whether he knowingly waived constitutional rights.'" (Id. at p. 365, citing Parke v. Raley (1992) 506 U.S. 20, 37.) On that basis, Mosby concluded that the "defendant voluntarily and intelligently admitted his prior conviction despite being advised of and having waived only his right to jury trial." (People v. Mosby, supra, at p. 365, fn. omitted.)
Defendant argues his 2006 plea on the assault charge was not knowing and voluntary because (1) the handwriting on his plea where he agreed to admit the charge was a strike is different from the handwriting in the same section where he admitted he committed the offense with a "'stabbing tool'"; (2) he was represented by a different attorney at the plea hearing; and (3) his attorney did not sign his plea form.
We disagree. Defendant does not cite, and we cannot find, any authority that supports defendant's position. The fact that two different people seemingly filled out the terms of defendant's plea form does not mean his plea was not knowing and voluntary. Nor does it mean that the form was altered after he signed it, as defendant speculates. Similarly, the fact that defendant's attorney did not sign the plea is not evidence that the plea was not knowing and voluntary. Likewise, it does not follow that defendant's plea was involuntary because he was represented by a different attorney at the plea hearing. We therefore conclude the trial court did not err in finding that defendant's plea was valid.
C. The Trial Court Did Not Err in Denying Defendant's Romero Motion
Defendant contends the trial court erred by denying his Romero motion to strike his 2006 strike conviction for assault. We disagree.
1. Legal Principles and Standard of Review
"As the Supreme Court explained in Romero, section 1385 permits a trial court to strike an allegation of a prior felony conviction in cases brought under the '"Three Strikes'" law, in the interests of justice." (People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213, citing Romero, supra, 13 Cal.4th at pp. 529-530.) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation . . . the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
The purpose of the Three Strikes law is "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious or violent felony offenses." (§ 667, subd. (b).) The Three Strikes law "establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike," unless the trial court determines the defendant falls outside the scheme's spirit. (People v. Strong (2001) 87 Cal.App.4th 328, 337-338.) "[E]xtraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack." (Id. at p. 338.) Thus, the Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm." (People v. Carmony (2004) 33 Cal.4th 367, 378.)
"The trial court is not required to state reasons for declining to exercise its discretion under section 1385." (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.) The trial court "is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
A trial court's decision not to strike a prior conviction allegation is reviewed under the abuse of discretion standard. (People v. Carmony, supra, 33 Cal.4th at p. 371.) "This standard is deferential . . . it asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (People v. Williams, supra, 17 Cal.4th at p. 162.) "Under that standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance." (People v. Myers, supra, 69 Cal.App.4th at pp. 309-310.)
2. Analysis
At the outset, we reject defendant's argument that the trial court misunderstood its discretion under Romero. Although the trial court expressed its policy disagreement with the fact that defendant could receive 25 years to life for committing the current offense, the trial court recognized its disagreement was not a valid basis to ignore the applicable law. The trial court explained that it was not appropriate for the court "to render its determination based solely upon the fact that I think that 25-to-life is excessive in this matter." The trial court observed that "defendant has been in custody most of the time since having suffered the previous convictions," and therefore it was "difficult to say that he falls [outside] the spirit of the three-strikes law," which the trial court recognized would have been a proper basis to grant defendant's Romero motion.
Consistent with Romero, the trial court recognized that it had to consider defendant's entire criminal history in deciding whether to strike his 2006 strike conviction. Defendant's criminal history is extensive, dating back to 1991. As the People correctly noted at the hearing on defendant's Romero motion, defendant "has a consistent behavior of committing crimes, being paroled for one or two months, [and] going back into the system." And although defendant's priors were old, the trial court did not abuse its discretion in finding that they had "not washed out." In other words, nothing in the record suggests defendant falls outside the spirit of the Three Strikes law. The trial court therefore did not abuse its discretion in denying defendant's Romero motion.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.