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P. v. Gonzalez

P. v. Gonzalez
07:10:2010



P. v. Gonzalez



Filed 5/28/10 P. v. Gonzalez CA4/2



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA





FOURTH APPELLATE DISTRICT





DIVISION TWO



THE PEOPLE,



Plaintiff and Respondent,



v.



JERRY ANTHONY GONZALEZ,



Defendant and Appellant.



E048708



(Super.Ct.No. FVI900219)



OPINION



APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed with directions.



Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.



Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.



Defendant, Jerry Gonzalez, was sentenced to six years in prison after a jury convicted him of battery resulting in serious bodily injury ( 243, subd. (d))[1]and assault by means likely to produce great bodily injury ( 245, subd. (a)(1)), and found true the allegation that he personally inflicted great bodily injury in the course of the assault ( 12022.7, subd. (a)). In this appeal, defendant argues that his trial counsel provided ineffective assistance when he stipulated to the jury that the three other assailants initially identified by the victim had all pled guilty to the assault. As discussed below, we find that this issue is not properly brought on direct appeal, and so affirm the judgment. We do order the abstract of judgment to be modified as described below.



Facts and Procedure



In an amended information filed April 22, 2009, the People charged defendant with battery resulting in serious bodily injury and assault by means likely to produce great bodily injury. The People also alleged defendant personally inflicted great bodily injury in the course of the assault.



On January 20, 2009, Jose Anaya was incarcerated at the Adelanto Detention Center in San Bernardino County. Anaya wanted to trade two postal envelopes to another inmate for a package of soup. An inmate leader told Anaya he could not make the trade. Soon thereafter, another inmate came to Anayas cell and told him he should go to the bathroom if he wanted to make the trade and that he would find the soup there. Several inmates followed Anaya into the bathroom and began to beat him with their fists in his ribs, head and eyes. Someone slammed his head against the sink. When he fell to the floor, the inmates began kicking him in the ribs. The beating lasted for ten to fifteen minutes, while most of the inmates on the cellblock watched. The inmates then told Anaya to clean the blood off the floor, wash himself up, go back to his bunk and cover his face so the deputy on duty would not know about the beating.



When Anaya returned to his cell, he was still bleeding and was in pain. Anaya uncovered himself when the deputy came by about 90 minutes later so the deputy could see him and help me out. Anaya gave the deputy the bunk numbers of the four people he could remember who were involved. These four people were William Telles, Miguel Marquez, Jose Noriega, and defendant. Anaya identified the four inmates out of four separate photographic lineups. Anaya specifically told the deputy that defendant had hit him in the back and head and slammed his head into the sink. Anaya was in the hospital for three or four days, and suffered bruises to the head, a laceration near one of his eyes requiring surgery, and a subarachnoid hemorrhage (bleeding in the brain) that had to be monitored.



Trial began on April 20, 2009. At trial, Anaya testified through an interpreter that there were four or five people or more who beat him. Anaya identified a picture of the defendant and said not only was defendant present when Anaya was assaulted, but that he was one of the ones that assaulted me. Anaya stated on cross-examination that a lot and five or six people were beating him, but that it was not possible to see all of them because I was the victim of them. Anaya would not agree with defense counsel that the only people who beat him were the four he initially identified. Also on cross-examination, defense counsel asked Anaya to tell me specifically what Jerry did to you? Anaya replied, Well, I cannot say everything. As I said, there were many, and I cannotI was not able to be counting or identifying who was giving me which hit. Anaya stated that, while he was not sure of the bunk numbers on that day of trial, he was sure of the bunk numbers when he gave them to the deputy on the day of the beating.



Defense counsel asked Anaya if he had told the treating doctor that you were jumped by three of four other inmates. Anaya replied, Maybe I did, yes. Defense counsel then said, Is that because you werent sure if it was three or four people. Anaya replied, Yeah, because I was all confused, you know, but I knew it was like three or four people; right. Defense counsel asked Anaya if he was hit by more than five people and Anaya answered, Yes and later, The ones that I marked down are the ones that I was able to see while I was able to, you know, while I was able to. Anaya also stated that defendant was standing behind the others at the beginning of the beating.



The trial court asked Anaya a few questions to clarify his testimony:



Q THE COURT: Is it your testimony that you actually saw the [defendant] hit you?



A THE WITNESS: I did not see him hit me. . . .  []  . . .  []  . . .  I saw him right there with the bunch of them.



Q THE COURT: Did you see him kick you?



A THE WITNESS: No.



Q THE COURT: But you saw him with the other people that hitthat you did see had hit you; is that correct?



A THE WITNESS: Yes.



Q THE COURT: Was he behind them or was he right there along with them?



A THE WITNESS: He was behind them.



On further examination by the prosecution:



Q [THE PROSECUTOR]: Mr. Anaya, when I asked you before if the defendant hit you, you said yes; is that right?



A THE WITNESS: Maybe, yes. Yes. I said yes.



Q [THE PROSECUTOR]: Okay. So the defendant did hit you?



A THE WITNESS: Like I said before, he was good to me, so he didnt hit me like the other ones did. Maybe he just a little, like he might have just pushed me, so why would I say something against him?



Q [THE PROSECUTOR]: So you dont want to say anything against him because he was nice to you before?



A THE WITNESS: Not really, but I dont see why he should be charged with maybe something that he didnt do.



Q: [THE PROSECUTOR]: But when I asked you before if he hit you, you said yes?



A THE WITNESS: What would you consider maybe just a slap just like that? []  . . .  []



Q [THE PROSECUTOR]: So he did hit you?



A: THE WITNESS: Well, yes.



Anaya was recalled to the stand later that day to testify that, while traveling on a jail bus and while waiting in a jail holding tank, several people told him not to testify and not to be a snitch or a rat, including one of those who had pled guilty to beating him. Anaya testified that he was not afraid of defendant, but that he was afraid of the three who had pled guilty.



The deputy who responded to Anaya in his cell testified that he approached Anayas bunk while making his rounds and he heard a voice say deputy. He saw Anaya sitting on his bunk with a towel covering most of his face and he was just blood-soaked. The deputy immediately pulled Anaya out of the cell and summoned a nurse. While waiting for the nurse to arrive, Anaya described to the deputy what happened and gave him the bunk numbers of four of the people who assaulted him. Anaya stated he did not know their names at that time. Anaya appeared shaken up, but did not hesitate when giving the bunk numbers. The deputy questioned each of the four individuals named by their bunk number, then generated a six-pack picture lineup for each individual. Anaya picked out the four individuals from these lineups. Anaya initialed each photo lineup and described to the deputy what each individual did to him. After looking at his report, the deputy testified that Anaya told him defendant hit him in the back and in the head, and then slammed his head into the sink. The deputy also testified that, two days prior to his testimony, Anaya told him that two of the men who had beat him had told him not to testify, and that he was afraid to testify.



After the People rested, the parties stipulated to the jury that William Telles, Miguel Marquez and Jose Noriega had all pled guilty to assaulting Anaya. The defense then rested based on the state of the evidence.



The jury found defendant guilty of all charges. On May 26, 2009, the trial court sentenced defendant to six years in prison. This appeal followed.



Discussion



Defendant argues his trial counsel provided prejudicial ineffective assistance of counsel by stipulating to the jury that the other three assailants initially identified by Anaya had pled guilty to the assault. Defendant further contends this issue can be brought on direct appeal because no reasonable attorney would consider this decision to be sound trial strategy.



To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsels performance fell below a standard of reasonable competence, and that there is a reasonable probability the result would have been more favorable to the defense in the absence of counsels deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Dennis (1998) 17 Cal.4th 468, 540-541.) When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426.)



The record here does not show the reason why defense counsel agreed to the stipulation, nor does defendant point to any such reason on the record. Further, defendant has not established that there could be no satisfactory explanation for defense counsel to enter into the stipulation. As the People point out, defense counsel may well have agreed to the stipulation in exchange for the prosecution not calling the three men to testify that defendant participated in beating Anaya. We do not know for sure, but this certainly could be a satisfactory explanation. This is why such claims are better brought on habeas corpus, where a defendant can go outside the record to establish deficient performance by defense counsel and prejudice there from.



We agree with the parties that the abstract of judgment should be corrected to reflect that defendant was convicted of assault by means likely to produce great bodily injury, rather than assault with a deadly weapon.



Disposition



The conviction is affirmed. The abstract of judgment is to be modified to reflect that that defendant was convicted of assault by means likely to produce great bodily injury, rather than assault with a deadly weapon.



NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RAMIREZ



P.J.



We concur:



McKINSTER



J.



MILLER



J.



Publication courtesy of California free legal advice.



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San Diego Case Information provided by www.fearnotlaw.com







[1] All further references are to the Penal Code unless otherwise indicated.





Description Defendant, Jerry Gonzalez, was sentenced to six years in prison after a jury convicted him of battery resulting in serious bodily injury ( 243, subd. (d))[1]and assault by means likely to produce great bodily injury ( 245, subd. (a)(1)), and found true the allegation that he personally inflicted great bodily injury in the course of the assault ( 12022.7, subd. (a)). In this appeal, defendant argues that his trial counsel provided ineffective assistance when he stipulated to the jury that the three other assailants initially identified by the victim had all pled guilty to the assault. As discussed below, we find that this issue is not properly brought on direct appeal, and so affirm the judgment. Court do order the abstract of judgment to be modified as described below.

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