P. v. Gomez-Estrada
Filed 1/22/13 P.
v. Gomez-Estrada CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS A.
GOMEZ-ESTRADA,
Defendant and Appellant.
B240537
(Los Angeles County
Super. Ct. No.
BA378668)
APPEAL
from a judgment of the Superior Court of
County. William C.
Ryan, Judge. Affirmed.
Carlos
A. Gomez-Estrada, in pro. per.; and Joy A. Maulitz, under appointment by the
Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
__________________________________
An information charged Carlos
Gomez-Estrada with one count of corporal injury to a spouse in violation of
Penal Code section 273.5, subdivision (a).
Maria
Soto testified at trial. She and Gomez-Estrada
married in 2008. On October 28, 2010, during an argument with Gomez-Estrada about money, Gomez-Estrada
hit her on both cheeks with his fists and hit her on the forehead with his
forehead. This occurred in the kitchen
of their apartment. After hitting Soto,
Gomez-Estrada left the kitchen and went to a bedroom to find Soto’s
brother. As he went, Gomez-Estrada was
yelling that Soto had hit herself with a plate.
Gomez-Estrada returned to the kitchen and lifted his hands as if he was
going to grab Soto. Soto punched him on
the mouth. Gomez-Estrada put his arm
around Soto’s neck and began squeezing Soto’s neck. Soto bit his arm. Gomez-Estrada threw Soto to the ground.
Soto
stated she sustained bruising and swelling on her cheeks and forehead as a
result of Gomez-Estrada hitting her on October 28, 2010. The bruising and swelling lasted about two
weeks. Soto’s daughter (from a prior
relationship) took photographs of her mother’s injuries the same night as the
incident and the following afternoon.
The prosecutor showed the photographs to the jury. Two days after Gomez-Estrada hit Soto on the
face and squeezed her neck, Soto reported the incident to the police. Soto testified Gomez-Estrada had harmed her
physically on occasions prior to October 28, 2010,
but she had not reported the prior incidents to the police.
Gomez-Estrada
testified on his own behalf at trial. He
stated, during his argument with Soto on October 28, 2010, she inflicted
injuries on herself after he indicated he was going to write her a letter
telling her he would divorce her.
According to Gomez-Estrada, Soto punched her cheeks with her fists three
or four times. She tried to take a phone
out of Gomez-Estrada’s hand and she hit him on the mouth. Gomez-Estrada left the kitchen to tell Soto’s
brother that Soto was hitting herself.
When Gomez-Estrada returned to the kitchen, Soto took a plate and hit
herself on the forehead. Gomez-Estrada
asked Soto why she was hitting herself.
She told him he “was going to remember her because she had her detective
who would defend her.†According to
Gomez-Estrada, Soto was referring to a man named Detective Vargas. Gomez-Estrada testified, during arguments,
Soto would tell Gomez-Estrada she was going to call Detective Vargas and
Detective Vargas “would come just like that if she called†and “have
[Gomez-Estrada] put in jail.†Detective
Vargas was the investigating officer on this case. He did not testify at trial.
On
cross-examination, Gomez-Estrada
denied he followed his wife in a car after the incident in an attempt to
intimidate her before trial. On rebuttal
Soto testified, three days before trial, she was driving to pick up her
daughter from school when she saw Gomez-Estrada swerve his truck into her lane
so that his truck ended up behind her car when she stopped at a red light. Soto looked in her rearview mirror. Gomez-Estrada was laughing and making faces like
he wanted to talk to her. Soto picked up
her cell phone and pretended she was talking to someone. According to Soto, Gomez-Estrada “was acting
like a good person.†Soto drove straight
and Gomez-Estrada turned left.
Soto
also testified on rebuttal about a prior occasion (after the incident) when she
saw Gomez-Estrada while she was driving with her daughter. She was exiting an alley and she stopped at a
stop sign behind two other cars.
Gomez-Estrada stopped and allowed the two cars in front of Soto to exit
the alley. Then he motioned for Soto to
proceed in front of him. According to
Soto, “very gentlemanly or lovingly, he gave [her] the right-of-way.†Soto was frightened when she saw him.
Over
Gomez-Estrada’s objection, the trial court allowed the prosecutor to ask
Gomez-Estrada if he had a 1996 conviction and a 1998 conviction for corporal
injury to a spouse. The trial court
ruled the prosecutor could impeach Gomez-Estrada’s credibility with these
crimes of moral turpitude. Gomez-Estrada
testified he had sustained these two prior convictions.
The jury found
Gomez-Estrada guilty of corporal injury to a spouse. The trial court sentenced him to the middle
term of three years in prison.
Gomez-Estrada
appealed. We appointed
filed an opening brief raising no issues and asking this court to review the
record independently pursuant to People
v. Wende (1979) 25 Cal.3d 436. On September 21, 2012, we advised Gomez-Estrada that he personally had 30 days to submit
any contentions or issues he wished us to consider. We also directed his appointed counsel to
send the record and opening brief to Gomez-Estrada immediately. On October 1, 2012,
Gomez-Estrada filed a handwritten letter brief.
Gomez-Estrada
raises ineffective assistance of counsel.
“‘To establish ineffective assistance of counsel, a [defendant] must
demonstrate that (1) counsel’s representation was deficient in falling below an
objective standard of reasonableness under prevailing professional norms, and
(2) counsel’s deficient representation subjected the [defendant] to prejudice,
i.e., there is a reasonable probability that, but for counsel’s failings, the
result would have been more favorable to the [defendant]. [Citations.]
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.â€
[Citation.]’ [Citation.]†(In re
Jones (1996) 13 Cal.4th 552, 566.)
Gomez-Estrada
asserts his counsel “fail[ed] to press certain issues that were relevant to
[his] defense†and these issues “helped to sway the jury against [him] and in
[Soto’s] favor.†First, Gomez-Estrada
faults his counsel for failing to explore Soto’s relationship with Detective
Vargas, the investigating officer on the case.
Gomez-Estrada states the issue as follows: “Thus making Detective Vargas and his
testimony not only in conflict, but a possible manipulation of fact and
testimony.†Detective Vargas did not
testify at trial. The prosecutor did not
present any evidence regarding Detective Vargas’s investigation. The jury heard Soto’s testimony and
Gomez-Estrada’s testimony. The jury saw
photographs of Soto’s injuries taken by Soto’s daughter before Soto reported
the incident to the police. Any
relationship between Soto and Detective Vargas was not germane to the issues
presented at trial. Accordingly, defense
counsel’s decision not to press Soto about her relationship with Detective
Vargas does not constitute deficient representation.
Second,
Gomez-Estrada faults his counsel for “weak cross examination†of Soto regarding
her testimony about the two occasions after the incident when Gomez-Estrada
drove behind her (discussed above).
Gomez-Estrada does not explain what he would have liked his counsel to
ask Soto on cross-examination. Based on
our review of the record, we do not find counsel’s performance to be deficient.
Third,
Gomez-Estrada cites his counsel’s “failure to even try in persuading the Judgeâ€
to exclude his 1996 and 1998 convictions for corporal injury to a spouse. The record demonstrates defense counsel
objected to the admission of these prior convictions, arguing they were “highly
prejudicial†and “remote in time.â€
Counsel’s representation was not deficient. Gomez-Estrada does not argue the trial court
abused its discretion in admitting these prior convictions, and we find no
error here.
Gomez-Estrada
also makes a vague assertion his counsel was “‘unprepared.’†We have found nothing in the record
supporting this assertion.
Gomez-Estrada’s
ineffective assistance of counsel claim fails.
He has not shown his counsel’s representation was deficient. Nor has he shown a reasonable probability
that any of the things his attorney “failed†to do would have resulted in a
more favorable outcome for him.
We
have examined the entire record and are satisfied that Gomez-Estrada’s counsel
has fully complied with her responsibilities and that no
v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra,
25 Cal.3d at p. 441.)
DISPOSITION
The judgment is
affirmed.
NOT TO BE PUBLISHED.
CHANEY,
J.
We concur:
MALLANO, P. J.
JOHNSON, J.
During
cross-examination of Soto, defense counsel asked Soto if she saw Detective
Vargas in the courtroom. Soto identified
Detective Vargas, who was sitting at counsel table with the prosecutor. Defense counsel asked Soto if she knew
Detective Vargas before the October 28, 2010 incident and she said she did. Soto
denied she talked to Detective Vargas “often,†but agreed he would return her
calls “because of the case.†When
defense counsel asked her if she trusted Detective Vargas, Soto responded
affirmatively. Soto denied telling Gomez-Estrada
that Detective Vargas would “come just like that†if she called him.
Gomez-Estrada
testified he was working three days before trial at the time Soto claimed he
drove his truck behind her car. He
stated he was at a pre-scheduled appointment with other people present.
