Opinion
H051123
03-11-2024
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO SAUL GOMEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 20CR03400)
Grover, Acting, P.J.
Defendant Fernando Saul Gomez appeals from a four-year sentence imposed after he pleaded no contest to second degree robbery, vehicle theft, and evading a peace officer. Upon defendant's timely appeal, we appointed counsel to represent him in this court. Appellate counsel filed a brief stating the case and facts but raising no issues. We notified defendant of his right to submit written argument on his own behalf, and he has done so.
We include here a brief description of the facts and procedural history of the case as well as the conviction and punishment imposed. We have reviewed the entire record to determine if there are any arguable appellate issues (People v. Wende (1979) 25 Cal.3d 436, 440-441), and we will address the sole issue defendant has raised. (People v. Kelly (2006) 40 Cal.4th 106, 123-124.) Finding no arguable issue, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
According to testimony from the preliminary hearing, someone stole a red 2005 Mercedes sedan in Mountain View in August 2020. Two days later a man took $8,000 to $9,000 in a Santa Cruz bank robbery and fled in a red Mercedes sedan. A California State Park Peace Officer Ranger observed a sedan matching that description driving erratically near the bank around the same time as the robbery. The ranger turned on his lights and siren to stop the sedan for traffic violations. The driver (later identified by the ranger as defendant) sped away while committing additional traffic violations. The ranger followed the sedan onto Highway 17, but ended his pursuit near Pasatiempo for public safety reasons. Defendant was arrested that evening with $9,100 cash in his possession near where the stolen sedan had been abandoned earlier in the day.
The operative first amended information charged defendant with second degree robbery (Pen. Code, § 211); felony vehicle theft (Veh. Code, § 10851, subd. (a)); and felony evading a peace officer (Veh. Code, § 2800.2, subd. (a)). The information alleged several aggravating factors related to defendant's past and current crimes. The information also alleged one prior strike conviction (Pen. Code, § 667, subds. (b)-(i)). The trial court considered and denied a motion by defendant to substitute new appointed counsel in 2021. (See People v. Marsden (1970) 2 Cal.3d 118.)
Criminal proceedings were suspended (Pen. Code, § 1368) in January 2023 after defense counsel expressed a doubt regarding defendant's mental competency. A clinical psychologist interviewed defendant and opined he was competent to stand trial. The court considered the report, found defendant competent, and reinstated criminal proceedings later that month.
Defendant pleaded no contest to the three charged counts and admitted the prior strike allegation as part of a negotiated disposition assuring a sentence of no more than four years in prison. Defense counsel also stipulated that the aggravating factor of planning and sophistication was established. (See Cal. Rules of Court, rule 4.421(a)(8).) The plea agreement allowed defendant to move under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike the prior strike conviction, which he did and which the trial court denied.
The trial court sentenced defendant to four years in prison, consisting of the low term of two years for second degree robbery (Pen. Code, § 211), doubled because of the prior strike conviction (Pen. Code, § 667, subds. (b)-(i)), and concurrent four-year middle terms imposed for the remaining two counts. The court waived fines and fees, citing People v. Duenas (2019) 30 Cal.App.5th 1157, 1171. Defendant received 1,140 days of presentence custody credit, based on 991 actual days and 149 days' conduct credit. (Pen. Code, § 2933.1.)
Defendant filed argument on his own behalf in this court, stating that "the judge never ordered two psychologists so I feel I got sentenced illegally according to [Penal Code] section[s] 1368 and 1369." The mental competency proceedings occurred before defendant entered his no contest pleas, and defendant did not request or obtain a certificate of probable cause.
We see no error by the trial court did in appointing only one mental health expert. If a doubt arises about a defendant's mental competence, Penal Code section 1369, subdivision (a) requires the trial court to "appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant." Only when "the defendant or defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence" must the court appoint two experts. (Pen. Code, § 1369, subd. (a).) The minute order for the relevant hearing indicates defense counsel raised a doubt about defendant's competence, and nothing in the record indicates defendant objected to criminal proceedings being suspended for that determination.
II. DISPOSITION
The judgment is affirmed.
WE CONCUR: Lie, J. Bromberg, J.