Opinion
F081234
05-28-2021
THE PEOPLE, Plaintiff and Respondent, v. ROMMEL DAMIEN MEDINA, Defendant and Appellant.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F19907628)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Heather Mardel Jones, and Brian F. Alvarez, Judges. Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
Judge Vogt presided over the January 8, 2020, preliminary hearing and ruled on defendant's motion to dismiss the complaint in its entirety; Judge Jones presided over the February 27, 2020, change of plea hearing; and Judge Alvarez presided over the May 7, 2020, sentencing hearing.
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INTRODUCTION
Appellant and defendant Rommel Damien Medina pleaded no contest to assault with a firearm and was sentenced to the indicated second strike term of four years. On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has filed a letter with this court that raises four issues. We affirm.
FACTS
The following facts are from the preliminary hearing.
On July 5, 2019, Rachel Smith and her sister-in-law, Velinda Sahagun, spent the evening with defendant and another man. Defendant picked up the women at their home in Tulare and drove them to a bar in Fresno. Ms. Smith had never met defendant and thought he was a friend of Ms. Sahagun. Ms. Sahagun testified she previously made contact with defendant through Snapchat, and they met for the first time that day.
Ms. Smith testified the group stayed at the bar for about a half-hour, and then defendant said they were going to go to his friend's "chop shop" to hang out. Ms. Smith testified that during the drive, defendant said he was going to shoot someone at the shop, and he giggled about it.
Ms. Smith and Ms. Sahagun testified defendant drove to an auto body shop and parked in front. They listened to music, sang, danced, and drank beer.
Wally Ali testified he was working at the body shop when defendant arrived with the other people. Defendant was a friend of the shop's owner, and he occasionally stopped by. The group arrived between 2:15 a.m. and 2:30 a.m., and they appeared to have been drinking. They danced and drank, and Mr. Ali saw bottles and cans of Modelo and Hennessey.
Ms. Smith testified that at some point after they arrived, she saw defendant get a gun out of his car and place it in the bed of a truck inside the shop. Ms. Smith testified things felt "weird" and "a little off." Ms. Smith was not comfortable and wanted to leave. About 30 minutes after they arrived, the women went outside, and Ms. Sahagun called her mother to check on her children. Ms. Sahagun thought things were getting rowdy and also wanted to leave.
Defendant and the other man followed them outside. Defendant asked Ms. Sahagun whom she called. Ms. Sahagun replied she called her mother, and the women told defendant they were going to leave. Defendant got upset and yelled and cursed. He told them not to leave and that he would shoot anyone who picked them up.
Ms. Smith testified defendant went into the body shop and retrieved the black handgun he had placed in the truck bed. Ms. Smith became scared when she saw the gun and walked behind defendant's car that was parked in front of the body shop. Defendant chased Ms. Smith around the car six or seven times, and told her, "[O]h you want to play, you want to play." As he chased her around the car, defendant fired the gun into the air about five times.
Ms. Sahagun testified that defendant got mad at Ms. Smith and chased her around the car; he fired multiple gun shots in the air. Ms. Smith was screaming and ran into the shop. Ms. Sahagun told defendant to stop and said that Ms. Smith had children, but defendant laughed and smirked. The second man stood there and watched, and did not get involved.
Mr. Ali testified he was working in the shop, and thought he heard the sounds of fireworks or gunshots.
Ms. Smith testified she ran into the body shop's office and crawled under a desk. Ms. Smith testified an employee, later identified as Mr. Ali, was in the office, and he told her to stay under the desk. Ms. Smith called 911 on her cell phone. Defendant went into the office, and Ms. Smith heard him ask Mr. Ali, "[W]here is she?" Ms. Smith was still on the phone with 911 but stayed quiet. She looked through a hole in the desk and saw defendant. She heard Mr. Ali tell defendant that she was not there, and he left the office.
Ms. Smith testified that about 10 minutes later, Mr. Ali went to the door and told defendant that Ms. Smith had called 911. Defendant returned to the office and told Ms. Smith to come out; she emerged from under the desk. Defendant held the gun close to Ms. Smith's face and, in an angry tone of voice, asked if she called the police. Ms. Smith was afraid he was going to shoot her, and she lied and said she did not call 911.
Ms. Smith testified the police tried to call her back, but she hung up on the call, and gave her phone to defendant. Defendant was still holding the gun in his right hand, and she pushed that hand behind his back and ran away. Ms. Smith tried to hide behind a car, and then ran down the street and stayed behind some bushes until the police arrived.
Mr. Ali testified that a woman, later identified as Ms. Smith, ran into the office, she was crying and hysterical, and she tried to hide under a desk. Mr. Ali testified she asked for the address of the body shop, he gave it, and she said she was calling 911. She eventually got up and ran out of the office and into the street. Mr. Ali testified that he told defendant the woman called 911, and defendant laughed.
Ms. Sahagun testified she saw Ms. Smith run into the body shop, she briefly went in to calm her down, and then Ms. Smith ran away. Defendant told Ms. Sahagun to get into his car so they could look for Ms. Smith. Ms. Sahagun testified she refused because she was scared. She told defendant the police were coming, and she was going to call a taxi and leave. Defendant drove away as Ms. Sahagun saw the flashing lights from an approaching police car.
Ms. Sahagun looked for Ms. Smith, who called out to her from behind the bushes. The police arrived and took them home. Ms. Sahagun testified defendant later contacted her and said they found Ms. Smith's cell phone. Defendant offered to drop it off or they could pick it up. She declined since Ms. Smith already obtained a new cell phone.
Mr. Ali testified he never saw a gun or found shell casings in the shop.
PROCEDURAL BACKGROUND
On November 13, 2019, a felony complaint was filed in the Superior Court of Fresno County that charged defendant with eight offenses: counts 1 and 2, assault with a firearm on, respectively, Ms. Sahagun and Ms. Smith (Pen. Code, § 245, subd. (a)(2)); counts 3 and 4, criminal threats against, respectively, Ms. Sahagun and Ms. Smith (§ 422); count 5, dissuading a witness from testifying, Ms. Smith (§ 136.1, subd. (a)(1)); counts 6 and 7, false imprisonment by violence on, respectively, Ms. Smith and Ms. Sahagun (§ 236); and count 8, discharging a firearm with gross negligence (§ 246.3, subd. (a)), with enhancements for personal use of a firearm as to counts 1 through 7 (§ 12022.5); and one prior strike conviction.
All further statutory citations are to the Penal Code unless otherwise indicated.
On January 8, 2020, the preliminary hearing was held. Ms. Smith, Ms. Sahagun, and Mr. Ali testified. The court held defendant to answer only on counts 2 and 8 and dismissed the other six counts for insufficient evidence.
On January 14, 2020, the information was filed that charged defendant with count 1, assault with a firearm on Ms. Smith (§ 245, subd. (a)(2)), and count 2, discharging a firearm with gross negligence (§ 246.3, subd. (a)). As to count 1, it was alleged that defendant personally used a firearm (§ 12022.5, subd. (a)); and as to both counts, that defendant had one prior strike conviction (§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d)); and two violent felony convictions (§ 667.5, subd. (a)).
On February 27, 2020, defendant pleaded no contest to count 1, assault with a firearm on Ms. Smith, and admitted the prior strike conviction, pursuant to a negotiated disposition for a stipulated sentence of four years and dismissal of the other allegations.
On May 7, 2020, defendant was sentenced to the lower term of two years, doubled to four years as the stipulated second strike term. The court issued and served defendant with criminal protective orders that prohibited contact with both women until 2023.
The court ordered defendant to pay a restitution fine of $300 (§ 1202.4, subd. (b)) and suspended the parole revocation fine of $300 (§ 1202.45); and also imposed a $40 court operations fee (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), and $296 for the presentence report fee (§ 1203.1, subd. (b)).
On June 1, 2020, defendant filed a notice of appeal and the court granted his request for a certificate of probable cause.
DISCUSSION
As noted above, appellate counsel has filed a Wende brief with this court. The brief also includes appellate counsel's declaration indicating that defendant was advised he could file his own brief with this court. By letter on October 8, 2020, we invited defendant to submit additional briefing.
On October 23, 2020, defendant sent a letter to this court that raised four issues, primarily based on his preliminary hearing.
I. Ms. Smith's Prior Conviction
Defendant contends his due process rights were violated because the prosecutor failed to disclose that Ms. Smith had a prior conviction before the preliminary hearing. Defendant argues that prevented his defense attorney from properly cross-examining Ms. Smith, and cross-examination with the prior conviction would have changed the result of the preliminary hearing.
A. Background
Defendant's assertion is based on the following circumstances. The preliminary hearing was held in one day, and the prosecution called three witnesses in this order: Ms. Smith, Mr. Ali, and then Ms. Sahagun. In the midst of Mr. Ali's testimony, the court called for the lunch recess. When the court reconvened in the afternoon, it stated that it had a meeting in chambers with the attorneys about a discovery issue that defense counsel learned about during the break.
Defense counsel stated that in the morning, the prosecutor provided the criminal records for the prospective witnesses for the preliminary hearing, and there were no prior convictions for Ms. Smith. However, defense counsel discovered during the lunch hour that Ms. Smith had a misdemeanor conviction in May 2019 for violating section 273.5, willful infliction of corporal injury, and the conviction was reduced from a felony to a misdemeanor under section 17, subdivision (b).
Defense counsel argued this offense was a conviction of moral turpitude, the prosecution's failure to timely disclose the conviction violated defendant's due process rights, and it prevented him from effectively cross-examining Ms. Smith. Counsel stated Ms. Smith was on still probation for that conviction, and some of her conduct on the night of the incident with defendant would have amounted to a violation of her probation.
Defense counsel moved to strike Ms. Smith's testimony and dismiss all charges in the complaint, or alternatively, dismiss the charges based on Ms. Smith as the victim. Counsel acknowledged the prosecution's failure to disclose the prior conviction was not intentional and likely an oversight, but the error could not be avoided by calling a police officer to testify to Ms. Smith's hearsay statements at the preliminary hearing.
The prosecutor responded that Ms. Smith's criminal history was checked, and there were "no hits," as previously disclosed to the defense. The prosecutor did not know about Ms. Smith's prior conviction until defense counsel told her during the lunch break. The prosecutor argued the charges should not be dismissed based on the nature of the error in this case.
The court stated it had already discussed the matter with the parties in chambers, and the defense relied on People v. Mackey (1985) 176 Cal.App.3d 177 (Mackey) and Stanton v. Superior Court (1987) 193 Cal.App.3d 265 (Stanton) to move for dismissal. The court found Ms. Smith's prior conviction was an offense of moral turpitude and should have been provided in discovery. However, the court found the failure to disclose the prior conviction to impeach Ms. Smith's credibility did not require dismissal of the charges and was distinguishable from the situations in Mackey and Stanton, which involved the prosecution's failure to disclose statements from witnesses that contradicted their testimony about the charged offenses in those cases. In contrast, Ms. Smith would have either admitted the prior conviction or denied it. In addition, if her testimony exposed her to possible probation violations, she should have been advised of her right to counsel before testifying.
The court further found that if it ordered Ms. Smith's testimony stricken, the prosecution could still call an officer to testify about her prior statements pursuant to Proposition 115, and her prior conviction would not be relevant.
The court denied defendant's motion to dismiss the complaint and found Ms. Smith's testimony had no effect on the charges based on Ms. Sahagun. The court was "really reluctant" to strike Ms. Smith's testimony without further explanation by counsel, and offered to conduct an in camera hearing for counsel to explain how he would have approached cross-examination in a different manner than simply asking if she had the prior conviction. The court then resumed the preliminary hearing with Mr. Ali's continued testimony.
After Mr. Ali was excused, the prosecutor stated that she had checked the Tulare County website, and it did not show any prior convictions for Ms. Smith, and only showed a traffic citation for Ms. Sahagun. Defense counsel requested an in camera hearing; the court held it and sealed the transcript.
Thereafter, the court found there had been a discovery violation as to Ms. Smith's prior conviction, but it was an innocent mistake and there was no substantive violation of defendant's due process rights that would require either dismissal of all the charges, the counts based on Ms. Smith, or striking Ms. Smith's testimony. The court stated it would consider Ms. Smith's prior conviction of an offense involving moral turpitude to evaluate her credibility and determine whether to hold defendant to answer. The court then continued the preliminary hearing with Ms. Sahagun's testimony.
As set forth above, the court only held defendant to answer on two of the eight offenses alleged in the felony complaint.
B. Analysis
The court properly denied defendant's motion to dismiss. Defendant's motion was based on Stanton and Mackey, but these cases are vastly different from what happened here. In Mackey, the prosecution failed to disclose a statement taken from the principal witness or that the witness had been hypnotized, in violation of the court's discovery order. Mackey held the prosecution's misconduct constituted a denial of the defendant's substantial rights because he was unable to effectively cross-examine the witness or present evidence of the hypnosis at the preliminary hearing, and the charges should be dismissed. (Mackey, supra, 176 Cal.App.3d at pp. 185-187.)
In Stanton, the defendant was charged with vehicular manslaughter. The prosecutor failed to turn over an investigative report to defense counsel that included statements from three key witnesses that cast doubt on the credibility of their preliminary hearing testimony regarding their observations. (Stanton, supra, 193 Cal.App.3d at p. 268.) Stanton held the defendant was entitled to have the investigative report before the preliminary hearing because it "contained exculpatory evidence on the focal issue before the magistrate and would have served the dual purpose of impeaching the prosecution's case and establishing an affirmative defense to the gross negligence" allegation of the vehicular manslaughter charge. (Id. at p. 272.) Stanton held the trial court properly declined to grant the defense's nonstatutory motion to dismiss the information, but the defendant's substantial rights were violated that required striking the gross negligence allegation because the impeachment evidence would have undermined the witnesses' testimony on that issue. (Id. at pp. 272-273.)
In evaluating the failure to disclose evidence prior to the preliminary hearing, we must "look to the materiality of the nondisclosed information and what effect it had on the determination of probable cause. [Citations.]" (Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1596.) The prosecution's inadvertent failure to discover and disclose Ms. Smith's prior conviction was not prejudicial for several reasons. First, in contrast to Mackey and Stanton, the prosecution failed to provide evidence related to the witness's general credibility, and the impeachment evidence was not specifically related to the charged offenses. Second, the evidence was discovered in the midst of the preliminary hearing, and the court stated it would consider Ms. Smith's credibility in light of her prior conviction of an offense of moral turpitude when it considered whether to hold defendant to answer. Indeed, the court only held defendant to answer on two of the eight alleged offenses in the complaint, and it independently examined each count.
Next, the discovery issue did not have any impact on the preliminary testimony from Mr. Ali and Ms. Sahagun; even if the court had stricken Ms. Smith's testimony, their testimony still presented evidence about defendant's interactions with Ms. Smith, and their accounts closely paralleled her testimony. Finally, as the court noted, the prosecutor could have called the investigating officer who interviewed Ms. Smith at the scene to testify about her statements, and that hearsay testimony would have been admissible. (See, e.g., Tu v. Superior Court (1992) 5 Cal.App.4th 1617, 1662.) The probation report contains a summary of the police report, and the account given by Ms. Smith to the officers was virtually identical to her testimony at the preliminary hearing.
II. The Court's Questions at the Preliminary Hearing
Defendant next claims the court committed misconduct and showed bias at the preliminary hearing because it questioned Ms. Smith "to favor her and the People," and "strengthen" her testimony.
After both the prosecutor and defense counsel questioned Ms. Smith, the court asked her several questions to clarify the sequence of events at the body shop. Defense counsel objected to the court's questions and argued the court was helping the prosecution. The court replied that it had no idea how Ms. Smith would respond to the questions, noted defendant's objection, and asked additional questions. Thereafter, the court gave defense counsel the opportunity to conduct further re-cross examination. Defense counsel did so and focused on some of the topics raised by the court. The court also asked clarifying questions when Ms. Sahagun testified.
"A trial court has both the discretion and the duty to ask questions of witnesses, provided this is done in an effort to elicit material facts or to clarify confusing or unclear testimony. [Citations.] The court may not, however, assume the role of either the prosecution or of the defense. [Citation.] The court's questioning must be ' "temperate, nonargumentative, and scrupulously fair" ' [citation] .... " (People v. Cook (2006) 39 Cal.4th 566, 597; People v. Cummings (1993) 4 Cal.4th 1233, 1305, overruled on other grounds in People v. Merritt (2017) 2 Cal.5th 819, 821-822.)
The court did not commit misconduct by questioning the witnesses at the preliminary hearing, and did so in a manner that was " ' "scrupulously fair" ' " to both sides. (People v. Cook, supra, 39 Cal.5th at p. 597.)
III. Matters Outside the Record
Defendant raises two issues that are outside the appellate record in this case. He asserts that his right to remain silent under Miranda v. Arizona (1966) 384 U.S. 436 was violated when he was interviewed prior to trial. He separately asserts his defense attorney was ineffective for failing to introduce evidence about his alleged developmental disability.
"An appeal is 'limited to the four corners of the [underlying] record on appeal ....' [Citation]" (People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1.) The record is silent as to any pretrial statements made by defendant, such a statement was not introduced at the preliminary hearing, and there is no indication that defense counsel moved to exclude any statements. In addition, there is no evidence of an alleged developmental disability.
After independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.