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People v. Gentle

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Jan 13, 2012
A129447 (Cal. Ct. App. Jan. 13, 2012)

Opinion

A129447

01-13-2012

THE PEOPLE, Plaintiff and Respondent, v. ANTOINE MARQUISE GENTLE, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Sonoma County Super. Ct. No. SCR568718)

Antoine Gentle was convicted of assault, with enhancements due to his personal infliction of great bodily injury and prior convictions. He contends the trial court erred when it refused to dismiss the case under the "two-dismissal rule" of Penal Code section 1387 and denied his motion to suppress evidence. He further contends there was insufficient evidence to support the great bodily injury enhancement. None of these contentions is meritorious, so we affirm.

BACKGROUND


The Attack

Victor Hernandez and another man were walking on the Joe Rodota Trail around 4:00 or 4:30 p.m. on February 26, 2009, when Hernandez was grabbed by two African-American men. The shorter of the two men pointed a gun at Hernandez's temple and demanded his wallet. The taller man chased Hernandez's companion, who jumped a fence and fled. The gunman struck Hernandez on the top of the head with the gun, knocked him to the ground and kicked him repeatedly. The taller man kicked Hernandez once. The gunman took Hernandez's wallet, and both assailants ran off toward a black SUV that was parked nearby.

Alberto Sandoval was also with a couple of friends on the Joe Rodota Trail that afternoon. Hernandez was there too, drinking with a friend. After Hernandez left, Sandoval saw a black Ford Explorer with tinted windows in the area. He noticed the Explorer because it was driven by an African-American, whom he identified at trial as defendant, and who fought with Hernandez's friends earlier in the day. Defendant drove away in the Explorer but later returned with another man, a taller African-American, and parked nearby. The taller man started to approach Sandoval, but defendant said, "no, no, no, no." The two African-American men walked to the trail and Sandoval lost sight of them. He wrote down the Explorer's license plate number because he "thought they were going to fight somebody or hurt somebody; maybe one of my friends." About 35 minutes later, Hernandez returned, bloodied and bleeding from his head. Sandoval called the police.

Sonoma County Deputy Sheriff Brian Covington responded. Hernandez was bleeding from a large bump on the back of his head, his right eye was red and swollen shut and there was a large dusty footprint on the front of his shirt. Sandoval gave Covington the Explorer's description and license number. Using the computer in his police car, Covington determined the car was associated with defendant and alerted other units in the area to be on the lookout for it. He pulled up a photograph of defendant on his computer and showed it to Sandoval, who said he thought it was one of the men he had seen.

The next day Deputy Sheriff Carole Jaap drove Sandoval to a parking lot for an infield show up. Jaap drove within 50 feet of defendant, who was standing next to a patrol car in the parking lot. Sandoval said "Oh my God. That's him. I'm afraid. Get out of here. That's him. I'm positive that's him."

The next day Deputy Covington contacted Detective Shawn Murphy about the case. Murphy determined the Explorer was registered to a woman named Tajmah Beauchamp. He went to Beauchamp's address and saw a black Explorer backed into a parking stall, but there was no front plate so he could not see the license number. After about 15 minutes an African-American male left an apartment and got into the Explorer. When he drove away, Murphy was able to see that the license number was the number reported by Deputy Covington. Murphy recognized the driver as defendant from prior contacts and photographs. The Explorer was stopped and defendant was arrested.

Codefendant Julian Johnson was arrested after Sandoval identified him in a photo lineup. Johnson is approximately six feet, four inches tall and 200 pounds, while defendant is five feet, ten inches tall and around 170 pounds.

Johnson testified that he was with defendant and a man he knew only as Josh the day of the crime. Defendant and Josh picked Johnson up and drove to a barber's shop, where Johnson had his hair cut. Afterwards Josh picked them up again. He said there was a problem "about some Mexican calling him a nigger." The three men drove to a local Dollar Tree store. Johnson jumped out of the passenger seat and approached a Mexican man, but Josh said "No, that's not him." The three got back in the Explorer and went over by the trail behind the Dollar Tree. There were three or four Mexican men, but Josh pointed out two of them as "the actual people." Johnson chased one of them for about 35 or 40 feet, leaving the other man with Josh and defendant. When Johnson returned he saw Hernandez dusting off his clothes and bleeding. Defendant was in the car. Johnson did not see him hit Hernandez.

Johnson had never seen Josh before that day, did not know his last name, and had not mentioned him when he was interviewed by police. He did recall telling Detective Murphy that it was just himself and defendant on the trail, and that he saw defendant hit the Mexican man. He also told Detective Murphy that he saw defendant load and shoot the gun and put it in his shorts before they went to the trail intending to rob someone. At trial, Johnson said he only saw defendant with a little plastic BB gun the day Hernandez was assaulted but could not remember if he saw defendant load or shoot it.

Defendant was charged with robbery and assault with a deadly weapon, with great bodily injury allegations as to each count. The information also alleged three prior felony convictions and a prior prison term. A jury acquitted defendant of robbery, found him guilty of the assault charge, and found the great bodily injury enhancement to be true. Defendant waived his right to a jury trial on the prior felony and prison term allegations, which the court found to be true. He was sentenced to a total prison term of six years. This timely appeal followed.

DISCUSSION


I. Two-Dismissal Rule

Defendant contends the trial court erred when it denied his request to dismiss the case under Penal Code section 1387 on the ground that it had previously been twice dismissed. His contention is unpersuasive.

Unless otherwise specified, further statutory citations are to the Penal Code.

Background

Defendant was originally charged in felony complaint SCR-556426, filed March 3, 2009. The complaint alleged defendant personally used a firearm with respect to both the robbery and assault. This complaint was dismissed on the People's motion on April 6, 2009.

Defendant's unopposed request for judicial notice of the complaint and other documents filed in the trial court in this matter is granted. (See Evid. Code, §§ 452, subd. (d), 459.)

That same day, charges were refiled in felony complaint SCR-560027, with an additional great bodily injury allegation as to both counts. A preliminary hearing was held on April 14 and 15. Defendant was held to answer for robbery and assault, but the court dismissed the firearm use and great bodily injury allegations for reasons that do not appear in the portions of the record before this court. On June 26 the case was dismissed on the People's motion when it was discovered that Sandoval had been deported by Immigration and Customs Enforcement (ICE) on June 12.

Although it appears the only evidence concerning the firearm at the preliminary hearing is that it was a BB gun.

On August 26, the People filed the third felony complaint in this case, SCR-568718. Defendant moved to dismiss on the ground that the People failed to show the excusable neglect necessary to file charges a third time after two prior dismissals. The court disagreed. It explained that "[w]hether neglect was on the part of the prosecution for not securing Mr. Sandoval's availability or on the part of the jail officials for releasing him to I.C.E. authorities, it is excusable neglect that occurred which resulted in the dismissal." Accordingly, it denied defendant's motion.

Analysis

"Section 1387, subdivision (a) states in relevant part: 'An order terminating an action pursuant to this chapter, or Section . . . 995, is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section . . . 995 . . . .' . . . This section sets forth what is sometimes referred to as the 'two-dismissal rule': Two dismissals of a felony action bars further prosecution, except in certain specified circumstances." (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 738-739 (Miller).)

Section 1387.1 provides an exception to this rule under specified circumstances. In prosecutions for violent felonies as defined in section 667.5, the prosecution may file a third time if either of the prior dismissals was due solely to excusable neglect and the prosecution did not act in bad faith. (§ 1387.1; Miller, supra, 101 Cal.App.4th at p. 739.) We review the trial court's finding of excusable neglect for abuse of discretion. (Miller, supra, at p. 745.) "The application of section 1387.1 is generally a discretionary determination for the judge which should be afforded great weight unless clear abuse of discretion is demonstrated. [Citation.] Courts recognize, however, that remedial statutes, such as section 1387.1, require that a lower court's decision denying relief be more carefully scrutinized than an order granting relief. [Citation.] Thus, '[u]nless inexcusable neglect is clear, the policy favoring trial on the merits prevails.' " (People v. Massey (2000) 79 Cal.App.4th 204, 211.)

In full, section 1387.1 provides: "(a) Where an offense is a violent felony, as defined in Section 667.5 and the prosecution has had two prior dismissals, as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 were due solely to excusable neglect. In no case shall the additional refiling of charges provided under this section be permitted where the conduct of the prosecution amounted to bad faith. [¶] (b) As used in this section, 'excusable neglect' includes, but is not limited to, error on the part of the court, prosecution, law enforcement agency, or witnesses."
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There was no abuse of discretion here. " ' "Simply expressed, '[e]xcusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.' " [Citation.]' " (Miller, supra, 101 Cal.App.4th at p. 741.) Sandoval, a critical witness, had been deported by ICE two weeks before the date set for trial. As the prosecutor explained, the People did not know of the deportation and had no control over ICE's actions. The trial court expressed its concern that something similar had happened in another case, but the prosecutor had not previously experienced this problem in any of her cases. On this record, the court did not exceed the bounds of reason when it found that the second dismissal resulted from excusable neglect.

Defendant argues the court's conclusion is not reasonable. He points out that both the court and the prosecutor acknowledged there were problems at the jail with respect to ICE deportations, and that the prosecutor "did not claim to have been unaware of the danger that it could happen" or of Sandoval's status as an undocumented immigrant. Moreover, he maintains, there are various legal mechanisms available to prosecutors to prevent material witnesses from being deported before they can testify. (See People v. Jacinto (2010) 49 Cal.4th 263, 273-274.) Therefore, he argues, "any reasonably prudent prosecutor would have discovered and acted on this information sometime before the day, two weeks before Mr. Gentle's scheduled trial, when key witness Sandoval was deported." We disagree. The prosecutor's representations that she was unaware of the deportation, had no control over ICE, and had never before run into this problem support a reasonable conclusion that the absence of a key prosecution witness and resultant dismissal was due to excusable neglect.

Alternatively, defendant contends the gun use and great bodily injury allegations that qualified the assault charge as a violent felony subject to section 1387.1 were dismissed for the second time at the preliminary hearing, and the prosecution made no showing that this dismissal was due to excusable neglect. Therefore, he argues, the assault charge could not be refiled for a third time.

This contention is forfeited for appeal because defendant failed to raise it in the trial court. "An objection that specifies the wrong ground is as bad as an insufficient general objection." (People v. Lopez (1978) 81 Cal.App.3d 103, 108.) Had defendant raised this distinct contention below, the People would have had the opportunity to address why the enhancements were dismissed, including any basis for dismissal that may have resulted from excusable neglect. He did not do so, and the issue was neither explored nor ruled on. He is therefore precluded from raising it in this court. (See, e.g., People v. Williams (1999) 20 Cal.4th 119, 130, 133-134 [defendant bringing suppression motion must state grounds with sufficient particularity to notify prosecution of the evidence it will need to present in response]; People v. Manning (1973) 33 Cal.App.3d 586, 601.)

We also reject defendant's claim that he preserved the issue for appeal by asserting in his motion to dismiss that no statutory exception to the two-dismissal rule existed. He accurately recites language from Miller, supra, 101 Cal.App.4th at p. 747 to that general effect, but Miller did not address the situation of a defendant who argued one factual basis for his section 1387 motion in the trial court and an entirely different basis on appeal. Therefore, its discussion of the allocation and weight of the burdens of proof under section 1387.1 is of little, if any, relevance here. More apposite is the observation in People v. Williams, supra, that "[i]n general, the moving party must carry the initial burden of informing its opponent and the court of the specific basis for its motion. [Citation.] If the rule were otherwise, then the party opposing the motion would have to try to guess, and then refute, every possible basis for the motion, which would always be inefficient and would often produce arbitrary results." (20 Cal.4th at p. 129.) Defendant's failure to assert section 1387 as a bar to the enhancement allegations forfeits the issue on appeal.

II. Motion to Suppress

Defendant maintains he was arrested without probable cause and that the trial court should have suppressed all evidence seized as a result of the arrest, including his infield showup identification. We disagree.

"An arrest is valid if supported by probable cause. Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime." (People v. Kraft (2000) 23 Cal.4th 978, 1037.) "No exact formula exists for determining reasonable cause, and each case must be decided on the facts and circumstances presented to the officers at the time they were required to act." (People v. Fein (1971) 4 Cal.3d 747, 752, disapproved on another ground in People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) "To determine whether the facts known to [police] 'would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime' [citation], we once again look to the totality of the surrounding circumstances and decide the case on its own facts." (People v. Soun (1995) 34 Cal.App.4th 1499, 1524.)

We review the trial court's factual findings for substantial evidence, but exercise our independent judgment in determining whether, on those facts, the arrest was reasonable under the Fourth Amendment. (People v. Celis (2004) 33 Cal.4th 667, 679.)

Here, Deputy Covington testified at the suppression hearing that Sandoval told him he saw the suspects leave the area in a black Ford Explorer and gave him the car's license plate number. Officers then learned defendant had been identified driving or riding in the Explorer around two weeks earlier. Deputy Covington pulled up defendant's photograph on his vehicle's computer and showed it to Sandoval, who said it looked like the passenger. One or two days later defendant was pulled over while driving the same Explorer and arrested. These facts provide ample support for the court's denial of the motion. (People v. Kraft, supra, 23 Cal.4th at p. 1037; People v. Turner (1994) 8 Cal.4th 137, 185, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)

III. Great Bodily Injury Enhancement

Finally, defendant asserts the evidence was insufficient to prove he personally committed an assault resulting in great bodily injury. Here, too, we disagree.

Section 12022.7, subdivision (a) imposes an additional three-year enhancement if a defendant personally inflicts great bodily injury on someone other than an accomplice in the commission of a felony. The statute defines great bodily injury as "a significant or substantial physical injury." (§ 12022.7, subd. (f).)

"[U]nder section 12022.7 a 'significant or substantial physical injury' need not meet any particular standard for severity or duration, but need only be 'a substantial injury beyond that inherent in the offense itself[.]' " (People v. Le (2006) 137 Cal.App.4th 54, 58-59, citing People v. Escobar (1992) 3 Cal.4th 740, 750.) It is thus not necessary that the victim suffer permanent, prolonged or protracted disfigurement, impairment, or loss of bodily function. (People v. Escobar, supra, at p. 750.) Whether the harm to the victim constitutes great bodily injury is essentially a question of fact for the jury, and we must accept a jury's finding if supported by substantial evidence, even though the circumstances might reasonably be reconciled with a contrary finding. (Ibid; People v. Wolcott (1983) 34 Cal.3d 92, 107.)

Deputy Covington testified that after the assault Hernandez was bleeding from a large lump on the back of his head. He had been kicked in his right eye, which was red and swollen shut. Hernandez had difficulty seeing for a while after the incident, and was taken to the hospital to be treated for his injuries. The jury was shown photographs depicting Hernandez's injuries, which we have reviewed. This was sufficient evidence to support the jury's finding of great bodily injury. (See, e.g., People v. Sanchez (1982) 131 Cal.App.3d 718, 733 [victim suffered abrasions, lacerations, swelling and bruising]; People v. Jaramillo (1979) 98 Cal.App.3d 830, 836 [multiple contusions causing swelling and discoloration].)

The evidence was also sufficient to prove that defendant, not Johnson, personally inflicted Hernandez's injuries. Hernandez testified that the person who hit him with the gun and delivered all but one of the blows was the shorter of his two assailants. Defendant is about six inches shorter than Johnson. Johnson admitted that he told detective Murphy he saw defendant strike Hernandez, although at trial he testified that the mysterious Josh was the actual assailant. Taken together, this evidence was sufficient to establish that defendant was the perpetrator.

DISPOSITION

The judgment is affirmed.

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Siggins, J.

We concur:

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Pollak, Acting P.J.

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Jenkins, J.


Summaries of

People v. Gentle

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Jan 13, 2012
A129447 (Cal. Ct. App. Jan. 13, 2012)
Case details for

People v. Gentle

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTOINE MARQUISE GENTLE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

Date published: Jan 13, 2012

Citations

A129447 (Cal. Ct. App. Jan. 13, 2012)