Filed 2/17/15 P. v. Moran 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                       E061307

v.                                                                       (Super.Ct.No. FVI1201177)

GERARDO GODOY MORAN,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret and

Debra Harris, Judges. Affirmed.

         Law Offices of Lawrence S. Strauss and Lawrence S. Strauss for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V.

Hawley, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       A jury1 convicted defendant and appellant Gerardo Godoy Moran of assault by

means of force likely to produce great bodily injury (Pen. Code,2 § 245, subd. (a)(4),

count 1)3 and criminal threats (§ 422, count 2). After conviction, the trial court denied

defendant’s motion for new trial on the basis of ineffective assistance of counsel and

ruled that defendant’s prior felony conviction was a serious felony for purposes of three

strikes sentencing. During sentencing, the court refused to dismiss defendant’s prior

strike conviction under section 1385 and sentenced him to an aggregate term of 14 years

four months in state prison.

       On appeal, defendant challenges the trial court’s denial of his motion for new trial,

arguing that his former trial counsel’s failure to call as a witness the victim’s ex-girlfriend

(and a friend of defendant) constitutes ineffective assistance of counsel. Defendant also

challenges the court’s refusal to dismiss his prior serious felony conviction under section

1385, arguing that the court failed to properly consider the issue. For the reasons

explained post, we affirm the judgment.




       1  The abstract of judgment incorrectly states that defendant was convicted by
court trial.

       2   Unless stated otherwise, all further statutory references are to the Penal Code.

       3 The jury found the enhancement allegation not true as to count 1 that defendant
personally inflicted great bodily injury on the victim within the meaning to section
12022.7, subdivision (a).


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                  FACTUAL AND PROCEDURAL BACKGROUND

       At trial in September 2012, the People presented the following evidence: On the

morning of May 9, 2012, defendant’s friend ended a romantic relationship with the

victim in a phone conversation. During the conversation, the victim and his ex-girlfriend

agreed that he could retrieve his property from her home. When the victim called her a

few hours later, she threatened him and his family and refused to give him his property.

       The victim contacted the police to request an escort to supervise the property

transfer. Following the police’s recommendation, the victim brought a friend and drove

to a location a couple of blocks away from his ex-girlfriend’s house. He then informed

the police that he was near the house and waited for a deputy to arrive. At some point

while the victim was parked near the house, he spoke with his ex-girlfriend over the

phone and told her that he had called the police to supervise the transfer. She responded

that she would bring the victim’s property to him.

       Defendant accompanied the victim’s ex-girlfriend to the location where the victim

was parked. Defendant was driving her car and she was in the passenger seat. Defendant

pulled up to the victim’s car, parked, and approached the driver’s side of the car where

the victim was seated. He yelled at the victim for calling the police and threatened him.

The victim’s ex-girlfriend told defendant to pull the victim out of the car and “fuck him

up.”

       Defendant tried to punch the victim through the driver’s side window. He then

opened the door, pulled the victim out of the car and flung him to the ground. The



                                             3
defendant began punching, kicking, and stomping on the victim’s face and head. The

victim put his forearms up to his face to protect himself and tried to stand up, but was

unable to. The victim recalls losing consciousness for some period of time while

defendant was punching and kicking him.

       As this was happening, the victim’s friend got out of the car to try and help him.

The victim’s ex-girlfriend approached the friend and began hitting him and pulling his

hair. When the friend tried to call the police, she broke his phone. She and defendant

then got into her car and drove away.

       The victim sustained serious injuries to his jaw, chest, ears, and face. After the

incident, his face and right ear were swollen and he was bleeding from his eyes, lips, and

right ear. Since the incident, the victim has experienced an echoing sensation in his right

ear for which he was referred to a specialist. Defendant’s injuries consisted of a swollen

right hand and cuts on his feet. The deputy who arrived at the scene and who later

interviewed defendant and the victim’s ex-girlfriend testified that, after the incident,

defendant was “laughing about the situation” and appeared to be intoxicated. He also

testified that defendant’s injuries did not appear consistent with mutual combat. Defense

counsel called as a witness the physician’s assistant who examined the victim’s right ear

after the incident. The physician’s assistant testified that he examined the victim’s ear

canal and eardrum and did not see any rupturing, swelling, or “any other injury” to his

right ear. He also testified that he referred the victim to an ear, nose, and throat specialist

for further examination.



                                               4
       Defendant and the victim’s ex-girlfriend were charged with, among other counts,

felony assault under section 245, subdivision (a)(4). The victim’s ex-girlfriend entered

into a plea agreement before trial.

       During trial, defense counsel requested a self-defense and a mutual combat jury

instruction based on evidence indicating mutual combat and evidence impeaching the

People’s witnesses. The court ruled that there was insufficient evidence to give these

instructions.

       On September 10, 2012, the jury convicted defendant of assault by means of force

likely to produce great bodily injury (§ 245, subd. (a)(4), count 1) and criminal threats

(§ 422, count 2). Following the verdict, defendant waived his right to a jury in order to

have the court determine whether a prior conviction from 2006 constitutes a serious

felony for three strikes sentencing. The court heard oral argument4 and ruled that the

2006 conviction is a serious felony under the three strikes law.5 On December 10, 2012,


       4  At the hearing, defendant argued that the 2006 conviction should not count as a
strike because it did not involve a deadly weapon. Defendant attempted to distinguish
People v. Semien (2008) 162 Cal.App.4th 701, which concluded that a conviction for
assaulting a police officer (a violation of section 245, subdivision (c)) constitutes a strike,
even when the assault did not involve a deadly weapon. While noting that this
conclusion was technically dicta, the trial court found it was nevertheless bound to it and
agreed with it. Defendant does not raise this issue on appeal.

       5 The court also found that the other special allegations in the information
regarding enhancements for prior convictions were true, i.e., that: (1) as to counts 1 and
2, the 2006 conviction and a 1998 drug charge conviction are prior convictions under
section 667.5, subdivision (b); and (2) as to count 2, the 2006 conviction constitutes a
prior conviction under section 667, subdivision (a).



                                               5
defendant, in. pro. per.,6 filed a motion to dismiss the 2006 conviction pursuant to section

1385. On December 5, 2013 defendant retained current counsel, who is defendant’s third

counsel in this matter.7

       On January 21, 2014, defendant filed a motion for new trial, arguing that his

former counsel’s failure to call the victim’s ex-girlfriend as a witness constitutes

ineffective assistance of counsel. On March 20, 2014, after hearing argument regarding

former counsel’s performance, the court concluded that the decision not to call her as a

witness was “based on trial strategy,” and denied the motion for new trial.

       During the sentencing proceeding on May 29, 2014, defendant again asked the

court to dismiss the 2006 conviction. After hearing argument on the issue, the court

refused to dismiss the conviction and explained to defendant, “You allowed yourself to

be involved in a situation that was none of your concern. In hindsight, I believe you

when you say that you think you would know how to handle it differently, but one would

expect from someone who has a criminal history and who was on a very good road—I

read all of the letters in support. You have a good support system. This is an individual




       6 The court granted defendant’s Faretta motion on October 19, 2012, after
hearing argument and ruling on the prior strike issue. (Faretta v. California (1975) 422
U.S. 806.)

       7 After representing himself in pro. per., defendant retained new counsel on
February 15, 2013, then, on December 5, 2013, defendant relieved that attorney and hired
present counsel.



                                              6
that we would expect to know how to handle situations like this.” The court sentenced

defendant to an aggregate term of 14 years four months in state prison.

                                        ANALYSIS

       1. The motion for new trial

       Defendant contends that the trial court erred when it denied his motion for new

trial because there is “no conceivable reason” for former counsel’s failure to call the

victim’s ex-girlfriend as a witness. We disagree.

       The standard of review for a trial court’s ruling on a motion for new trial is abuse

of discretion. (People v. Homick (2012) 55 Cal.4th 816, 894 [appellate court must uphold

trial court’s ruling on a motion for new trial based on ineffective assistance of counsel

unless defendant establishes a “ ‘ “ ‘manifest and unmistakable abuse of

discretion’ ” ’ ”].)

       To succeed on an ineffective assistance of counsel claim, defendant must

demonstrate that counsel’s performance was deficient (i.e., it fell below an objective

standard of reasonableness) and that the deficiency prejudiced defendant (i.e., there is a

reasonable probability that but for counsel’s failings, defendant would have obtained a

more favorable result). (Strickland v. Washington (1984) 466 U.S. 668, 687-695

(Strickland); People v. Bolin (1998) 18 Cal.4th 297, 333; People v. Osband (1996) 13

Cal.4th 622, 700 [the standard is the same under the federal and state Constitutions].)

Review of counsel’s performance is highly deferential and should employ a “strong

presumption” that the defendant received reasonable professional assistance of counsel.



                                             7
(Strickland, supra, 466 U.S. at pp. 689-690; see People v. Leonard (2014) 228

Cal.App.4th 465, 484.)

       Where, as here, the claim is based on an alleged omission by counsel and the

record on appeal does not contain an explanation for the omission, we must reject the

claim unless there could be “ ‘ “no satisfactory explanation” ’ ” for counsel’s conduct.

(People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [reversing a holding of

ineffective assistance of counsel where record did not show why counsel failed to move

to suppress evidence obtained during a warrantless search because counsel was “perhaps”

aware that the officer had a justification for the search].) In other words, if there could be

a reasonable explanation for counsel’s decision, the claim of ineffective assistance of

counsel must fail.

       In this case, defendant admitted that he does not know how the victim’s ex-

girlfriend would have testified,8 and there are a number of reasonable explanations as to

why former counsel did not call her as a witness. At the hearing, the court stated that

even if defendant did have an offer of proof as to how the victim’s ex-girlfriend would

testify, such an offer would not be dispositive. The court then found that former

counsel’s reason for not calling her as a witness “was one based on trial strategy, not in

ignorance of self-defense being a viable defense.”




       8  When asked at the hearing on the motion how the victim’s ex-girlfriend would
have testified, current defense counsel admitted that he could not answer because he had
not spoken with her.


                                              8
       The trial court’s finding that counsel’s reason was based on trial strategy is

reasonable. The transcripts indicate that former counsel’s trial strategy was to attack the

victim’s credibility and present an alternate theory of the case that the victim had

provoked defendant.9 Given this trial strategy, there are a number of reasonable

explanations as to why former counsel did not call the victim’s ex-girlfriend to the stand.

For starters, there are many uncertainties surrounding her testimony, the chief of which is

that—despite defendant’s assumption that her testimony would have been

“exculpatory”—it is entirely possible she would not have testified that defendant acted in

self-defense. As a result of these uncertainties and the fact that the victim’s ex-girlfriend

was initially a codefendant in this case, counsel could reasonably have believed he had a

higher chance of success weakening the People’s case and creating reasonable doubt.

       We need not elaborate on other potential reasonable explanations for counsel’s

decision. Because there is at least one satisfactory explanation, the trial court did not

abuse its discretion in finding counsel’s performance was not deficient and, accordingly,

in denying the motion for new trial. We therefore affirm the trial court’s ruling.


       9  For example, counsel tried to attack the victim’s credibility by using his
testimony at previous proceedings to contradict his description of the incident and raising
the issue of a jealousy motive by questioning him about his use of the internet to look at
pictures of defendant and his ex-girlfriend. Counsel also called two of his own witnesses:
a physician’s assistant to discredit the victim’s claimed injuries and the daughter of the
victim’s ex-girlfriend to contradict the victim’s description of his encounter with her after
the incident. We note here that defense counsel admitted at the hearing that “[t]he record
shows the cross-examinations and the things [former counsel] did do in trial . . . were up
to a professional standard. He went down the same avenues of attack on the witnesses I
think any experienced defense lawyer would go to.”


                                              9
       2. The prior strike conviction

       The trial court refused to dismiss the 2006 conviction (which it had previously

determined was a serious felony for purposes of three strikes sentencing) under section

1385 and sentenced defendant to an aggregate term of 14 years four months in state

prison. Specifically, for count 1, defendant received the mid-term of three years, doubled

for the prior serious felony. For count 2, defendant received the mid-term of one year

four months, to be served consecutively. For the first section 667.5, subdivision (b)

enhancement (for the 2006 conviction), defendant received one year, to be served

consecutively. For the second section 667.5, subdivision (b) enhancement (for the 1998

conviction), defendant received one year, to be served consecutively. For the section

667, subdivision (a)(1) enhancement (for the 2006 conviction), defendant received five

years, to be served consecutively.

       Defendant argues that the trial court erred when it refused to dismiss his prior

strike conviction because it made a “spur-of-the-moment decision” and did not consider

the “disparity between the instant fight and the facts of [defendant’s] prior conviction.”

We conclude that the court did consider the nature of the two convictions, as well as

defendant’s criminal history, and therefore made a reasoned decision.

       The California Supreme Court has held that section 1385 gives a trial court the

discretion to dismiss a prior strike conviction if the dismissal is in the furtherance of

justice. (§ 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497,

529-530 (Romero).) We review such a ruling for abuse of discretion and will uphold the



                                              10
decision unless it “ ‘falls outside the bounds of reason.’ ” (People v. Williams (1998) 17

Cal.4th 148, 152, 162.) Review of a trial court’s refusal to dismiss a prior strike is

extremely deferential: “ ‘[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 must affirm the trial court’s ruling, “ ‘even if we might have ruled differently

in the first instance.’ ” (People v. Carmony (2004) 33 Cal.4th 367, 378.) Thus, if the

court made an impartial decision about whether to dismiss a prior strike that takes into

account the relevant facts and arguments, we will uphold that decision.

       Here, the trial court “[became] familiar with [the] case in talking with counsel,”

thoroughly reviewed defendant’s probation report, read all of the letters filed in support

of defendant seeking leniency, and listened to defense counsel’s argument as well as

defendant’s own statement to the court.

       Based on its review of the probation report, the court noted that defendant has a

criminal history. Not counting the present felony assault conviction, in the past 20 years

appellant had been convicted of three felonies and two misdemeanor batteries. The 2006

conviction, which the court had previously ruled was a serious felony under the three

strikes law, involved an assault on a peace officer. The current conviction, despite

defendant’s characterization of the incident as a mere “fist fight,” is also a violent felony.

       The court also found defendant’s argument for leniency unconvincing. In

response to defense counsel’s admission that “his case and my position maybe don’t have

strictly legal merit,” and his position that “his first strike should be disallowed because



                                              11
it’s totally unrelated,” the court reasoned that while “it [did] look like [the present

incident was] an aberration . . . most violent crimes are an aberration.” The court further

reasoned that “we would expect [defendant] to know how to handle situations like this.”

       The record described above shows that the court’s refusal to dismiss the 2006

conviction is a far cry from “spur-of-the-moment.” Before making its decision, the court

considered defendant’s prior convictions, as well as counsel’s arguments, defendant’s

own statement to the court, and the letters describing defendant’s rehabilitation. The

court commented on the difficulty of the case but determined that, on balance, defendant

fell within the spirit of the three strikes law. Accordingly, we hold that the court reached

a reasoned and impartial decision and did not abuse its discretion in refusing to dismiss

the 2006 conviction.

       Defendant’s assertion that his sentence was grossly disproportionate to his crime10

is unpersuasive. A trial court may not dismiss a prior strike based on “ ‘a personal

antipathy for the effect that the three strikes law would have on a defendant,’ while

ignoring ‘defendants background,’ ” or the “ ‘the nature of his present offenses.’ ”

(Romero, supra, 13 Cal.4th at p. 531.) Here, the record shows that defendant has a

history of violent offenses and that his current offense was also violent. The People


       10 In his opening brief, defendant states that his sentence “is cruel and unusual
punishment . . . in violation of the Eighth and Fourteenth Amendments.” Because
defendant provides no authority or analysis to support this contention, we only address
whether the trial court abused its discretion by refusing to dismiss the 2006 conviction.
(See People v. Islas (2012) 210 Cal.App.4th 116, 128 [“Assertions unsupported by
authority or reasoned argument need not be considered”.])


                                              12
presented evidence that the victim suffered serious injuries when defendant pulled him

out of his car, threw him to the ground, and repeatedly punched and kicked him in the

face and head as the victim tried to stand up. The deputy testified that defendant’s

injuries were not consistent with mutual combat and that he appeared jovial and

intoxicated after the incident. After hearing the evidence, the jury convicted defendant of

felony assault. Defendant’s claim that his sentence was grossly disproportionate to his

crime is based on his characterization of the incident as a fist fight and ignores the jury’s

verdict.

       Defendant’s assertion that “absent the strike prior, the instant conviction merits at

most a county jail sentence” is also unavailing. A court does not abuse its discretion by

denying a motion to strike a prior conviction where the present offense is arguably minor.

(People v. Carmony, supra, 33 Cal.4th at 367 [trial court did not abuse its discretion in

refusing to dismiss prior strikes where defendant received 26 years to life under three

strikes sentencing for failing to register as a sex offender].) And, as just discussed,

defendant’s minimization of his crime disregards the jury’s verdict.

       The trial court’s decision not to dismiss defendant’s prior strike conviction was

reasoned and impartial, and we uphold it




                                             13
                                       DISPOSITION

       The clerk of the superior court is directed to amend the abstract of judgment to

correctly reflect that defendant was convicted pursuant to a jury trial. In all further

respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                 RAMIREZ
                                                                                          P. J.


We concur:


HOLLENHORST
                           J.


MILLER
                           J.




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