P. v. Gomez

Filed 3/8/07 P. v. Gomez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Fredy Lebatique Gomez was found guilty of attempted premeditated murder (Pen. Code,  187, subd. (a), 664), possession of a short-barreled shotgun (id.,  12020, subd. (a)), assault with a firearm (id.,  245, subd. (a)(2)), and being a felon in possession of a firearm (id.,  12021, subd. (a)(1)). The jury found true the enhancement allegations of shotgun discharge causing great bodily injury (id.,  12022.53, subd. (d)), personal and intentional discharge of a firearm (id.,  12022.53, subd. (c)), personal use of a firearm (id.,  12022.5, subd. (a)(1)), and infliction of great bodily injury on a nonaccomplice (id.,  12022.7, subd. (a)). After the jury found the prior violent felony conviction allegation to be true, the trial court sentenced defendant to a determinate term of nine years in state prison, followed by an indeterminate term of 39 years to life.

Defendant raises evidentiary error, ineffective assistance of counsel and abuse of discretion in denying his Romero^[1]motion. We shall affirm the judgment.

FACTUAL BACKGROUND

On January 19, 2005, Mark Miguel was working as a door attendant at the Torch Club in Sacramento when defendant approached him and asked about the cover charge. Defendant hesitated when Miguel told him it was four dollars, then told Miguel not too many people like you around here, you know. Miguel ordered defendant to leave. After staring at Miguel for about 10 minutes, he did.

Defendant returned to the Torch Club the next night about 11:30 p.m., and again encountered Miguel at the door. Defendant asked Miguel if he was going to let him in, and Miguel responded by asking if he was going to be good. When defendant failed to answer, Miguel told him he could not come in. Defendant repeatedly asked and motioned for Miguel to come outside, but Miguel ignored him. After about 10 minutes, Miguel jumped up from the stool he had been sitting on, startling defendant, who assumed a martial arts-type fighting stance. Miguel then took defendants arm and pushed him out the door. Defendant fell and Miguel held him on the ground for a few minutes. Miguel returned to his position at the door, and defendant walked to the end of the block, where he stared for several minutes at Miguel before leaving.

At 12:30 a.m., Miguel went inside the bar to tend to his other responsibilities. He collapsed some boxes and gathered them together. On his way out, he told the bartender, Don Jensen, that he was going to take the boxes to the dumpster. Once outside, he saw defendant standing alone on the sidewalk in front of the bar next door to the Torch Club. As Miguel walked towards the dumpster, defendant spotted him and lifted his shirt, exposing the butt of a gun. Defendant pulled a sawed-off shotgun out of his pants as he quickly walked toward Miguel. Defendant got within two or three feet from Miguel, pointed the shotgun at him and shot him in the lower abdomen. Miguel fell backwards toward the building, hitting his head as he slid down the wall. Miguel recovered his footing and began to fight with defendant over the gun, fearing he would shoot him again.

Hearing a loud bang, Jensen went outside to investigate and saw Miguel laying on the ground with his head covered in blood and defendant standing over him. Miguel called out to Jensen for help. Jensen struggled with defendant for the gun and managed to wrest it away from him, as Miguel crawled to safety. Defendant walked over to where Miguel was lying, kicked him on the side of the leg, and when Miguel opened his eyes, defendant fled on foot. Defendant was arrested later that evening.

DISCUSSION

I. Exclusion of Defendants Statement to the Victim

Prior to trial, the People made a motion to exclude, as hearsay, defendants statement I could have killed you, made to Miguel soon after he shot him. Defendant maintained the statement was admissible to show his state of mind. Questioning what benefit defendant would obtain from admitting the statement, the trial court deferred ruling on the issue until another hearing could be conducted.

During cross-examination, defense counsel asked Miguel what else defendant did to him after the shooting. Miguel replied, He nudged me with his foot and I opened up my eyes, and he looked over me and glared at me and stared at me, and he said I could have killed‑‑ At that point the prosecutor interposed an objection. After a brief hearing outside the presence of the jury, the trial court ruled that defendants statement to Miguel would be excluded under Evidence Code section 352.^[2] Defendant assigns this ruling as prejudicial error, claiming the statement was admissible under the spontaneous declaration or state of mind exceptions to the hearsay rule and that its probative value clearly exceeded any prejudice.

We note at the outset that defendants arguments advancing the statements admissibility are off base, because the statement was not excluded as inadmissible hearsay, it was excluded as an exercise of the trial courts discretion under section 352.

Rulings under Evidence Code section 352 are reviewed under an abuse of discretion standard, and a trial courts determination will not be overturned on appeal in the absence of a clear abuse of that discretion, upon a showing that the trial courts decision was palpably arbitrary, capricious, or patently absurd, and resulted in injury sufficiently grave as to amount to a miscarriage of justice. (People v. Lamb (2006) 136 Cal.App.4th 575, 582, quoting In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.) Furthermore, error in excluding evidence justifies reversal only when, in the absence of the improper exclusion, a result more favorable to the complaining party would likely have occurred. ( 354; People v. Earp (1999) 20 Cal.4th 826, 880.)

We conclude that the ruling was not an abuse of discretion and that, even if it was, there is no reasonable probability it would have affected the outcome of the case.

Defendant claims the statement I could have killed you constituted strong circumstantial evidence that he did not intend to kill Miguel, a crucial issue in the case. But defendant did not say, I did not mean to kill you, or I decided not to kill you, though I certainly could have. He said, I could have killed you, a statement that was pregnant with ambiguity. On the one hand, the jury could have concluded, as defendant contends, that he had the ability to kill Miguel but chose not to. On the other, they could have also inferred that defendant indeed wanted to kill Miguel and would have, had not circumstances intervened. Thus, the beneficial effect of the evidence to the defense was doubtful‑‑the statement was equally susceptible of a damaging inference as a favorable one on the issue of defendants state of mind.

What is clear, is that defendant was stating the obvious. Every juror in the courtroom knew that defendant could have killed Miguel by shooting him in the stomach with a sawed‑off shotgun. Thus, the statement did not cast significant light on whether or not defendant had the specific intent to kill.

Accordingly, the trial court did not abuse its discretion in concluding that the evidence was potentially confusing and that its probative value was minimal. For the same reason, we find no reasonable probability defendant would have obtained a different verdict had the jury been permitted to hear the statement. Any error was harmless. (People v. Cahill (1993) 5 Cal.4th 478, 492; People v. Watson (1956) 46 Cal.2d 818, 836.)

II. Evidence of Defendants Suicidal Tendencies

In an effort to demonstrate that he lacked the requisite intent to kill and to provide an alternative explanation for his possession of a gun, defendant moved in limine to introduce evidence of his history of suicidal thoughts and suicide attempts. This evidence included statements made by defendant indicating depression and suicidal ideation, as well as a witness who saw defendant acting very oddly and in possession of a gun an hour or two before his encounter with Miguel. Following a hearing on the matter, the trial court excluded the evidence, stating under Evidence Code section 352 that the probative value is substantially outweighed by the following: It would tend to confuse and mislead the jury, and that the probative value is substantially outweighed by the undue consumption of time. Defendant moved to admit this and similar evidence on two subsequent occasions during the trial. Each time, the court reaffirmed its ruling excluding the evidence.

Defendant claims the trial court abused its discretion in excluding evidence of his suicidal tendencies because the evidence was strongly relevant to the jurys assessment of his mental state under section 1250.

The trial court did not abuse its discretion. First, the evidence was not sufficiently proximate in time to shed significant light on defendants state of mind at the moment he shot Miguel. In his pretrial motion, defendant offered evidence of an alleged suicide threat that occurred more than a year prior to the shooting incident. Two other incidents took place three months and two weeks prior, respectively. The last bit of evidence, offered midtrial, was the proffered statement of a witness at the Torch Club who thought she saw defendant try to stab himself minutes after he told bystanders that he shot Miguel.

Second, as the events at Columbine High School and on September 11, 2001, vividly illustrate, suicidal and homicidal tendencies can certainly coexist simultaneously and are not inherently incompatible. In sum, defense counsels premise that suicidal ideation negates the element of premeditation, was unsound. Accordingly, the trial court could reasonably have concluded that evidence of defendants suicidal inclination was collateral, misleading and potentially confusing to the jury.

III. Ineffective Assistance of Counsel

On the fifth day of trial, defense counsel sought to admit the results of blood tests conducted at the Veterans Affairs Hospital almost three hours after the shooting, which indicated that defendants blood alcohol level was 0.1462 percent. Defense counsel offered the evidence in furtherance of his theory of diminished capacity, owing to intoxication. The prosecutor objected to the admission of the records on timeliness grounds, and questioned the reliability of the test results. The prosecutor also noted that there were other statements in the same records that would favor the Peoples case. The court initially denied defendants request to introduce this evidence.

Later that same day, the prosecutor agreed to stipulate to the results of the blood alcohol test, but noted that he would also introduce evidence from the same records that indicated defendant was comfortable, alert and oriented when he entered the hospital. The court indicated it would permit defense counsel to introduce the results of the blood alcohol test and the prosecution to introduce the observations concerning defendants demeanor.

Subsequently, the court asked defense counsel if he wished to reopen his case and present the hospital records. Counsel replied that he was withdrawing his motion to have the evidence admitted, stating at this point for tactical reasons I believe it would be a distraction to the jury.

Defendant now asserts that defense counsel was incompetent for two reasons: (1) he should have properly reviewed the records earlier in the proceedings, so as to avoid a timeliness objection; and (2) he fell below the standard of care in withdrawing his motion to have the records admitted.

To prevail on a claim of ineffective assistance of counsel, the defendant must show counsels performance fell below a standard of reasonable competence, and that prejudice resulted. (People v. Anderson (2001) 25 Cal.4th 543, 569.) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)

Clearly, no harm resulted from counsels failure to review the records in a timely fashion, since the trial court was prepared to admit them based on the prosecutors stipulation. Thus the only issue is whether counsels withdrawal of his motion is explainable as a reasonable choice of tactics.

By the time the issue of the admissibility of the hospital records arose during the trial, the defense had already introduced copious evidence relating to defendants intoxication at the time of the shooting. Defense witnesses recounted how defendant was drinking as early as seven hours before the shooting and continued throughout the night. The defense also presented testimony that defendant was intoxicated four hours prior to the shooting, and appeared to be even more so within an hour after the shooting. Evidence that defendants blood alcohol level was 0.14 percent was thus cumulative of the observations of defendants witnesses. However, the same records contained a poison pill. Defendant was described as comfortable at rest, alert and oriented, when he entered the hospital, and it was noted that he daily consumed six to twelve beers. Thus, although the hospital records provided further evidence of defendants intoxication, they also contained damaging evidence that he consumed alcohol on a regular basis and was able to function normally after having consumed great quantities of beer.^[3]

Defense counsel cannot be faulted for choosing the lesser of two evils. There is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. (People v. Burnett (1999) 71 Cal.App.4th 151, 180, quoting People v. Bunyard (1988) 45 Cal.3d 1189, 1215 and Strickland v. Washington (1984) 466 U.S. 668, 689 [80 L.Ed.2d 674, 694].) Because there is a plausible tactical explanation for defense counsels act of withdrawing his motion to admit the hospital records, defendants ineffective assistance claim must fail.

IV. Cumulative Error

Defendant asserts that the combined effect of the trial errors he assigns denied him his constitutional right to present a defense. Because none of his claims of error is individually meritorious, defendant has no foundation on which to base this argument. (See People v. Jones (1998) 17 Cal.4th 279, 315.)

V. Romero Motion

Prior to sentencing, defendant filed a Romero motion to strike his 1978 armed robbery conviction. Following a hearing on the issue and after considering the relevant factors, the trial judge denied the motion.

Defendant asserts that the court abused its discretion in refusing to strike the prior serious felony. He claims that the strike should have been dismissed because it was remote in time and not violent in nature, his criminal record was not that serious, and his history of mental illness and alcohol abuse combined to take him out of the spirit of the three strikes law. Defendant fails to make a persuasive argument.

[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, 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 schemes 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.)

[A] trial courts refusal or failure to dismiss or strike a prior conviction allegation under [Penal Code] section 1385 is subject to review for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) Under this standard, a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.) Moreover, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from this norm . . . . In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. (Id. at p. 378.)

The seriousness of the present offense and defendants prior criminal record alone justify the courts refusal to grant leniency in this case. In committing the present offense, defendant walked up to the victim and shot him point blank with a sawed-off shotgun. The shooting was unprovoked and premeditated, and the jury rejected defendants intoxication defense.

Defendant also has an extensive criminal history. His first criminal conviction occurred in 1970 for receiving stolen property. In 1973 and 1995, he was convicted of reckless driving and driving under the influence. In 1978, he was convicted of armed robbery and served six years in prison. Defendant was also arrested for robbery in 1980 and felony possession of methamphetamine in 1994.

Defendants criminal background as well as the serious and violent nature of the current offense support the trial courts implied finding that defendant has proven himself to be a threat to public safety. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981.) As such, defendant is representative of the kind of revolving door career criminal to whom the Three Strikes law is addressed. (People v. Carmony, supra, 33 Cal.4th at p. 379.) The trial courts denial of the Romero motion was not an abuse of discretion.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

DAVIS , Acting P. J.

ROBIE , J.

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^[1]People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

^[2] Undesignated statutory references are to Evidence Code.

^[3] Defendant does not dispute the propriety of the courts ruling that if the blood alcohol test were introduced, the observations of the hospitals staff could also be admitted. (See  356 [Where part of [a] . . . writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence].)