Filed 3/7/16 P. v. Gonzales CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069892
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF150237A)
                   v.
                                                                                         OPINION
FRANK ANTHONY GONZALES,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
         William Malloy, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




         *Before     Poochigian, Acting P.J., Peña, J., and Smith, J.
                                    INTRODUCTION
       Frank Anthony Gonzales was convicted of several crimes after he robbed a
restaurant and threatened to kill an employee if he called the police. Appellate counsel
did not identify any arguable issues. Upon our inquiry, Gonzales identified three issues
he believed entitled him to a new trial.
       We find no merit to the issues identified by Gonzales. Our review of the record
leads us to agree with appellate counsel that there are no arguable issues. Accordingly,
we affirm the judgment.
                        FACTS AND PROCEDURAL HISTORY
The information
       The first-amended information charged Gonzales with second-degree robbery
(Pen. Code,1 § 212.5, subd. (c)), making a criminal threat (§ 422), misdemeanor
possession of drug paraphernalia (Health & Saf. Code, § 11364.1), and second-degree
burglary (§ 460, subd. (b)). Gonzales’s lengthy criminal history resulted in numerous
enhancements to these charges: (1) a prior conviction that constituted a strike within the
meaning of section 667, subdivision (b)-(i) (counts one, two, and three); (2) a prior
serious felony conviction within the meaning of section 667, subdivision (a) (counts one
and two); and (3) three convictions resulting in a prior prison term within the meaning of
section 667.5, subdivision (b) (counts one, two, and three). Prior to trial, Gonzales pled
no contest to misdemeanor possession of drug paraphernalia.
The testimony
       The remaining counts arose out of a single incident. Sixteen-year-old A.U.
worked with his father at a family restaurant on the day in question. He was in the




       1Subsequent   statutory references are to the Penal Code unless otherwise noted.


                                             2.
kitchen area when Gonzales walked into the restaurant.2 A.U. walked to the front
counter of the restaurant to attend to the customer. He asked Gonzales if he could help
him, and Gonzales gave A.U. a note that read, “This is a robbery. Stay quiet and give me
all the money in the cash register and your personal cell phone. I got a gun; so do as I
ask.” A.U. asked Gonzales if he was serious, and Gonzales replied, “Oh, yeah.” A.U.
never saw a gun but was in fear. He opened the cash register and started gathering the
money. Gonzales became impatient and grabbed the money in A.U.’s hand and some
more money that was still in the cash register. Before leaving the restaurant, Gonzales
then told A.U. to wait 20 minutes to call the police or he would come back and shoot
A.U. in the head.
       A.U. told his father J.U. they had been robbed, and J.U. called the police. A.U.
was taken in the squad car to another location where he identified Gonzales as the man
who robbed him.
       J.U. was working in the kitchen on the day in question when he noticed a man
come into the restaurant and then leave the restaurant. After the man left, A.U. told J.U.
the restaurant had been robbed. J.U. called the emergency operator to report the crime.
The recording of that conversation was played for the jury.
       J.U. then went outside to see if he could locate the perpetrator. He eventually saw
him in front of another restaurant and followed him at a distance. When a police officer
arrived, J.U. pointed to Gonzales. J.U. watched the officers arrest Gonzales and then
returned to the restaurant. J.U. identified a photograph of Gonzales as the perpetrator.
The officers returned the money that was stolen in the robbery after they arrested
Gonzales.



       2A.U. was not asked to identify Gonzales in court, but he did identify the
individual depicted in a photograph (Exhibit 7A) as the perpetrator, and an officer
confirmed the photograph was of Gonzales.


                                             3.
          The People called several City of Bakersfield police officers who confirmed the
above sequence of events and confirmed that Gonzales was the individual detained on the
day in question and was also the individual positively identified by A.U. Finally, a phone
call Gonzales made to his mother shortly after he was arrested was played for the jury. In
the portion of the phone call played for the jury, Gonzales stated he tried to rob someone
and clarified that he “got busted for robbery.”
Arguments, verdict, and sentencing
          The prosecutor argued the evidence overwhelmingly proved that Gonzales had
robbed the restaurant and that he had threatened A.U. as Gonzales left. Defense counsel
admitted Gonzales was there but claimed the prosecution had not met its burden of proof
to establish either a robbery or a criminal threat because it had failed to establish that
A.U. was in actual fear during the events.
          The jury found Gonzales guilty as charged. In the bifurcated portion of the trial,
the court found the enhancements true. The trial court sentenced Gonzales to the
aggravated term of five years for the robbery (§§ 212.5, subd. (c) and 213, subd. (a)(2)),
doubled because of the strike prior (§ 667, subds. (b)-(i)), added five years because
Gonzales had a prior serious-felony conviction (§ 667, subd. (a)), and added two years
for the two prior-prison-term enhancements (§ 667.5, subd. (b)), for a total term of 17
years. The sentences on the remaining felony counts were stayed pursuant to section 654,
and the misdemeanor sentence was imposed consecutively.
                                          DISCUSSION
          Appellate counsel filed a brief stating that, after he reviewed the file, he did not
identify any arguable issues in this case. (People v. Wende (1979) 25 Cal.3d 436.) On
March 9, 2015, this court sent a letter to Gonzales inviting him to identify any issues he
wished to have this court address. Gonzales identified three issues he felt entitled him to
relief.



                                                 4.
       The first issue was “why [defense counsel] admitted to the jury in closing
arguments that his client was guilty.” We interpret Gonzales’s letter to be a claim that
defense counsel was ineffective.
       A defendant is entitled to a new trial if he received ineffective assistance of
counsel at trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.)

       “Establishing a claim of ineffective assistance of counsel requires the
       defendant to demonstrate (1) counsel’s performance was deficient in that it
       fell below an objective standard of reasonableness under prevailing
       professional norms, and (2) counsel’s deficient representation prejudiced
       the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s
       failings, defendant would have obtained a more favorable result.
       [Citations.] A ‘reasonable probability’ is one that is enough to undermine
       confidence in the outcome. [Citations.] [¶] Our review is deferential; we
       make every effort to avoid the distorting effects of hindsight and to evaluate
       counsel’s conduct from counsel’s perspective at the time. [Citation.] A
       court must indulge a strong presumption that counsel’s acts were within the
       wide range of reasonable professional assistance.… Nevertheless,
       deference is not abdication; it cannot shield counsel’s performance from
       meaningful scrutiny or automatically validate challenged acts and
       omissions. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-
       541.)
       We reject Gonzales’s claim because he cannot establish either element of an
ineffective-assistance-of-counsel claim. During closing argument, defense counsel was
faced with a daunting task. Gonzales had been positively identified by A.U. and J.U. as
the perpetrator minutes after the robbery took place. He was found with cash stuffed into
the pockets of his pants. The amount of cash recovered from Gonzales was the same
amount that was stolen from the restaurant. Finally, Gonzales admitted to his mother he
committed the robbery shortly after he was arrested.
       In closing argument, defense counsel made a tactical choice to admit Gonzales
was the perpetrator but attempted to argue he was not guilty of robbery or making
criminal threats because the evidence did not prove that A.U. was in fear as a result of
Gonzales’s actions. Had he been successful, Gonzales would not have been convicted of


                                              5.
robbery, but of a lesser offense, and would have avoided any conviction on the criminal-
threat count. Given the state of the evidence, we cannot say that defense counsel’s
tactical decision fell below an objective standard of reasonableness. Moreover, since the
evidence overwhelmingly established Gonzales’s guilt, even if defense counsel had not
made this tactical choice, there is no possibility Gonzales would have obtained a better
result. Therefore, there is no merit to this claim.
       The second issue identified by Gonzales is a claim that the trial court abused its
discretion when it denied his invitation to the trial court to dismiss his prior-strike
conviction. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The trial court
denied the request finding that Gonzales fell “squarely within” the Three Strikes
legislative scheme.
       The principles governing the trial court’s exercise of discretion when a defendant
invites it to dismiss a prior conviction are well established. Section 1385 permits the trial
court to dismiss an action in furtherance of justice on its own motion. The Supreme
Court held in Romero that this section permitted the trial court to dismiss a prior
conviction that constituted a strike within the meaning of section 667, subdivisions (b)-
(i), subject “to strict compliance with the provisions of section 1385 and to review for
abuse of discretion.” (Romero, supra, 13 Cal.4th at p. 504.) Romero also summarized
the applicable principles for utilization of the authority granted trial courts in
section 1385.

               “‘The trial court’s power to dismiss an action under section 1385,
       while broad, is by no means absolute. Rather, it is limited by the
       amorphous concept which requires that the dismissal be “in furtherance of
       justice.” As the Legislature has provided no statutory definition of this
       expression, appellate courts have been faced with the task of establishing
       the boundaries of the judicial power conferred by the statute as cases have
       arisen challenging its exercise. Thus, in measuring the propriety of the
       court’s action in the instant case, we are guided by a large body of useful
       precedent which gives form to the above concept.



                                               6.
               “‘From the case law, several general principles emerge. Paramount
       among them is the rule “that the language of [section 1385], ‘in furtherance
       of justice,’ requires consideration both of the constitutional rights of the
       defendant, and the interests of society represented by the People, in
       determining whether there should be a dismissal. [Citations.]” [Citations.]
       At the very least, the reason for dismissal must be “that which would
       motivate a reasonable judge.” [Citations.]’ [Citation.] ‘Courts have
       recognized that society, represented by the People, has a legitimate interest
       in “the fair prosecution of crimes properly alleged.” [Citation.] “‘[A]
       dismissal which arbitrarily cuts those rights without a showing of detriment
       to the defendant is an abuse of discretion.’ [Citations.]”’ [Citation.]

              “From these general principles it follows that a court abuses its
       discretion if it dismisses a case, or strikes a sentencing allegation, solely ‘to
       accommodate judicial convenience or because of court congestion.’
       [Citation.] A court also abuses its discretion by dismissing a case, or a
       sentencing allegation, simply because a defendant pleads guilty. [Citation.]
       Nor would a court act properly if ‘guided solely by a personal antipathy for
       the effect that the three strikes law would have on [a] defendant,’ while
       ignoring ‘defendant’s background,’ ‘the nature of his present offenses,’ and
       other ‘individualized considerations.’ [Citation.]

              “A court’s discretionary decision to dismiss or to strike a sentencing
       allegation under section 1385 is also reviewable. ‘[W]here the court’s
       action lacks reason it may be invalidated upon timely challenge.’
       [Citation.] Section 1385 anticipates, and facilitates, appellate review with
       the requirement that ‘[t]he reasons for the dismissal must be set forth in an
       order entered upon the minutes.’ [Citation.] ‘The statement of reasons is
       not merely directory, and neither trial nor appellate courts have authority to
       disregard the requirement. It is not enough that on review the reporter’s
       transcript may show the trial court’s motivation; the minutes must reflect
       the reason “so that all may know why this great power was exercised.”’”
       (Romero, supra, 13 Cal.4th at pp. 530-531.)
       In People v. Williams (1998) 17 Cal.4th 148, the Supreme Court provided further
guidance for ruling on an invitation to dismiss a prior conviction. “We therefore believe
that, in 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(a), or in reviewing such a ruling, the court
in question must consider whether, in light of the nature and circumstances of his present



                                              7.
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.” (Id. at p. 161.)
       We are not in this case reviewing a trial court’s decision to strike a prior-
conviction allegation, but its refusal to do so. In People v. Carmony (2004) 33 Cal.4th
367, 374 (Carmony), the Supreme Court confirmed that a trial court’s refusal to exercise
its discretion is reviewable for an abuse of discretion. Once again, the Supreme Court
provided guidance for trial courts and appellate courts in addressing the issue.

               “In reviewing for abuse of discretion, we are guided by two
       fundamental precepts. First, ‘“[t]he burden is on the party attacking the
       sentence to clearly show that the sentencing decision was irrational or
       arbitrary. [Citation.] In the absence of such a showing, the trial court is
       presumed to have acted to achieve the legitimate sentencing objectives, and
       its discretionary determination to impose a particular sentence will not be
       set aside on review.”’ [Citations.] Second, a ‘“decision will not be
       reversed merely because reasonable people might disagree. ‘An appellate
       tribunal is neither authorized nor warranted in substituting its judgment for
       the judgment of the trial judge.’”’ [Citations.] Taken together, these
       precepts establish that a trial court does not abuse its discretion unless its
       decision is so irrational or arbitrary that no reasonable person could agree
       with it.

              “Because ‘all discretionary authority is contextual’ [citation], we
       cannot determine whether a trial court has acted irrationally or arbitrarily in
       refusing to strike a prior conviction allegation without considering the legal
       principles and policies that should have guided the court’s actions. We
       therefore begin by examining the three strikes law.

              “‘[T]he Three Strikes initiative, as well as the legislative act
       embodying its terms, was intended to restrict courts’ discretion in
       sentencing repeat offenders.’ [Citation.] To achieve this end, ‘the Three
       Strikes law does not offer a discretionary sentencing choice, as do other
       sentencing laws, but establishes a sentencing requirement to be applied in
       every case where the defendant has at least one qualifying strike, unless the
       sentencing court “conclud[es] that an exception to the scheme should be
       made because, for articulable reasons which can withstand scrutiny for


                                              8.
abuse, this defendant should be treated as though he actually fell outside the
Three Strikes scheme.”’ [Citation.]

        “Consistent with the language of and the legislative intent behind the
three strikes law, we have established stringent standards that sentencing
courts must follow in order to find such an exception. ‘[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(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 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.’
[Citation.]

        “Thus, the three strikes law not only establishes a sentencing norm,
it carefully circumscribes the trial court’s power to depart from this norm
and requires the court to explicitly justify its decision to do so. In doing so,
the law creates a strong presumption that any sentence that conforms to
these sentencing norms is both rational and proper.

       “In light of this presumption, a trial court will only abuse its
discretion in failing to strike a prior felony conviction allegation in limited
circumstances. For example, an abuse of discretion occurs where the trial
court was not ‘aware of its discretion’ to dismiss [citation], or where the
court considered impermissible factors in declining to dismiss [citation].
Moreover, ‘the sentencing norms [established by the Three Strikes law
may, as a matter of law,] produce[] an “arbitrary, capricious or patently
absurd” result’ under the specific facts of a particular case. [Citation.]

        “But ‘[i]t is not enough to show that reasonable people might
disagree about whether to strike one or more’ prior conviction allegations.
[Citation.] Where the record is silent [citation], or ‘[w]here 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’ [citation]. Because the circumstances must be ‘extraordinary …
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’ [citation], the circumstances where no reasonable
people could disagree that the criminal falls outside the spirit of the three

                                       9.
       strikes scheme must be even more extraordinary. Of course, in such an
       extraordinary case—where the relevant factors described in [People v.
       Williams,] supra, 17 Cal.4th 148, manifestly support the striking of a prior
       conviction and no reasonable minds could differ—the failure to strike
       would constitute an abuse of discretion.” (Carmony, supra, 33 Cal.4th at
       pp. 376-378.)
       Carmony makes clear that the refusal to strike a prior conviction will constitute an
abuse of discretion in only rare cases. This is not such a case. Gonzales’s argument is
based on the assertion that his prior conviction should not be considered a serious or
violent felony, and thus did not qualify as a prior-strike conviction. (§ 667, subds. (c) &
(d).) The record shows the prior conviction was for residential burglary (§ 460,
subd. (a)), which is a serious felony. (§ 1192.7, subd. (c)(18).) Gonzales acknowledges
these facts but asserts that, because he broke into a detached garage, the crime he actually
committed was second-degree burglary which is not a serious felony.
       Neither the facts nor the law supports Gonzales’s argument. First, the documents
submitted by Gonzales to support his argument in the trial court establish he pled guilty
to first-degree burglary as part of a plea agreement. He included with his invitation to the
trial court a copy of the reporter’s transcript from the plea agreement for the burglary, as
well as a police report from that crime. The reporter’s transcript establishes that
Gonzales pled to residential (first-degree) burglary and was advised the conviction would
constitute a strike within the meaning of section 667, subdivisions (b)-(i), and as a result
he would receive additional punishment should he commit a felony in the future. By
accepting the offer made by the People, Gonzales was sentenced to a low term for the
burglary (two years) and a prior prison-term enhancement was dismissed. Because
Gonzales obtained the benefit of his bargain, and his bargain included the provision that
the burglary conviction would be a strike in future felony prosecutions, he is now
prohibited from arguing the prior conviction is not a strike. (People v. Segura (2008) 44
Cal.4th 921, 930-931 [plea agreement a form of contract, the terms of which are binding
on both parties].)


                                             10.
       Second, the police report submitted to the trial court by Gonzales shows that the
detached garage into which he broke had been converted into a bedroom and was
occupied at the time of the burglary. As such, it was a residence within the meaning of
section 460, subdivision (a). (People v. Cruz (1996) 13 Cal.4th 764, 776 [inhabited
dwelling is place used as sleeping quarter and occupant intends to continue to do so in
future].)
       Finally, as the trial court observed, Gonzales falls squarely within the legislative
scheme for the three strikes law. Section 667, subdivision (b), declares the Legislature’s
intent to provide increased punishment for those convicted of a felony and who had
previously been convicted of a prior serious or violent felony. Gonzales had been
convicted of a serious felony and had an extensive criminal history beginning in 1989 and
continuing up until the current conviction. While most of the convictions were for
misdemeanors, the probation report indicates there were at least three felony convictions
that resulted in commitments to the Department of Corrections. The report also indicates
Gonzales violated his parole or probation on numerous occasions. This report provides
no evidence to suggest Gonzales fell outside the three strikes legislative scheme.
Accordingly, the trial court acted well within its discretion when it refused to dismiss the
prior-strike conviction.
       The third issue identified by Gonzales is that the “robbery does not bare the
elements of force or threat by force.” We interpret Gonzales’s letter to assert there is not
substantial evidence to support the robbery conviction because there is no evidence A.U.
was in fear when he gave Gonzales the money from the cash register, the same argument
defense counsel made in closing argument.3


       3We  reject Gonzales’s assertion the prosecutor referred to the crime as a theft
during her rebuttal argument. No citation to the record is provided, and a review of the
closing argument unequivocally confirms the prosecutor argued A.U. was in fear and
therefore the crime was a robbery.


                                             11.
       To assess the evidence’s sufficiency, we review the whole record to determine
whether any rational trier of fact could have found the essential elements of the crime or
special circumstances beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th
342, 403.) The record must disclose substantial evidence to support the verdict—i.e.,
evidence that 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. 396.) In
applying this test, we review the evidence in the light most favorable to the prosecution
and presume in support of the judgment the existence of every fact the jury could
reasonably have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412,
480, superseded by statute [§ 29.4] on other grounds.) “Conflicts and even testimony
[that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is
the exclusive province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination depends. [Citation.] We
resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]” (Maury, supra, at p. 403.) A reversal for insufficient evidence “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support’” the jury’s verdict. (People v. Bolin (1998) 18 Cal.4th
297, 331.)
       The record provides ample evidence that A.U. was in fear when Gonzales robbed
him. For our purposes, it is sufficient to note that A.U. testified he was afraid when he
read the note given to him by Gonzales which stated Gonzales had a gun and which
demanded the money in the cash register. Although there is additional evidence in the
record on this element of the crime, this testimony is sufficient by itself to support the
judgment.
       We have reviewed the entire record and agree with appellate counsel there are no
arguable issues in this case. This was an uncomplicated prosecution based on a single
act. The identification of Gonzales was unequivocal, and the undisputed facts established

                                              12.
each element of the charged crimes. The jury was properly instructed and the trial court
acted well within its sentencing discretion.
                                      DISPOSITION
       The judgment is affirmed.




                                               13.
