Opinion
H036812
11-10-2011
THE PEOPLE, Plaintiff and Respondent, v. JOE LOUIE GOMEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. C1073465)
Defendant Joe Louie Gomez was charged by first amended information filed October 22, 2010, with first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a);count 1), first degree burglary (§§ 459, 460, subd. (a); count 2), and false imprisonment (§§ 236, 237; count 3). The information further alleged that a person not an accomplice was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)), that defendant had a prior serious felony conviction that also qualified as a strike (§§ 667, subds. (a), (b) - (i), 1170.12), and that he had served a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code.
The Court Trial and Admission of the Priors
On December 1, 2010, defendant waived his right to a jury trial. The parties stipulated that the transcript of the preliminary examination testimony of Shawna vonStockhausen would be admitted into evidence at the court trial in lieu of her live testimony. Her preliminary examination testimony was as follows.
Around 2:00 a.m. on September 13, 2008, vonStockhausen was asleep in her bedroom on the second floor of her San Jose townhouse. She awoke to find a man standing beside her bed who was looking around at her and at the items she had on her dresser. When she tried to get out of bed, the man held her down and tried to put his hand over her mouth. He addressed her by name, told her to calm down, and said that a friend had given him a key to her house. She had never seen the man before. She asked him to let her up, but he said he could not do that because she would call the police. She eventually persuaded him to let her lock herself in the bathroom. She waited in the bathroom until she felt that the man had left and was not returning. During that time, she heard some items being taken and her sliding glass door open and close.
It was 2:40 a.m. when vonStockhausen left her bathroom. She went to a neighbor's house and called the police. She returned to her house with the police later that morning and noticed that the screen had been removed from her kitchen window; one of her kitchen knives, some movie tickets, her keys, her wallet, and her cell phone were missing; an armrest cover from her sofa was in her bedroom; and a clean sock that had been on the floor of her bedroom was on her bed. The sock had a dark stain on it. She later determined that a video camera and a digital camera were missing. The following morning her kitchen knife was found by police in the yard of a nearby home. It was the only item taken from her home that she got back.
VonStockhausen could not say "for certain" that defendant was the man she had seen in her townhouse, but she testified that he "looks similar to" that man. She remembered that the man's hair was cut short and was combed forward in the front, that he had a "squarish" jaw line, that his eyes were very round and "almost puffy," that he sounded Hispanic but did not have a very heavy accent, and that he wore what looked like a white gardening glove on his hand and a dark long-sleeved dress shirt. She was later shown three separate photographic lineups. She picked a man out of the first lineup, but she said that she was only 65 percent sure that he might be the man she saw in her home. Defendant's photo is in the third lineup, but she does not remember which two photos she picked out of that lineup.
On December 2, 2010, the parties stipulated that the transcript of the preliminary examination testimony of Officers Kasey Padia and Brian Jeffrey would be submitted in lieu of their live testimony. The officers' preliminary examination testimony was as follows.
Around 2:50 a.m. on September 13, 2008, Officer Padia responded to vonStockhausen's address. VonStockhausen told him that a man had entered her home. She said that the man's voice sounded Hispanic, and that he had a medium build and short hair. She said that car keys, a purse, movie passes, and a kitchen knife were taken.
Around 8:43 a.m. on September 13, 2008, Officer Jeffrey responded to an address in San Jose, where he was instructed to collect a kitchen knife from some bushes. He took DNA swabs from the handle of the knife before booking it into evidence. He then responded to vonStockhausen's address, where he collected a sock that was lying on top of the bed.
On December 6, 2010, vonStockhausen's father, James vonStockhausen, testified that he was the one who obtained and gave to his daughter the movie passes that were taken from her home. He gave a San Jose police officer the serial numbers of those passes.
Shirley Overson testified that her husband was the one who discovered the kitchen knife in the bushes of their home on the morning of September 13, 2008. He showed her that the knife was in the dirt under some foliage outside their front door, and she immediately called the police.
Thanh Vu testified that her family has a booth at the Capitol Expressway flea market. While working there one weekend, a man gave her and her sister movie passes. They used them on September 15, 2008. She later picked a photo out of a photographic lineup, but she was not able to identify defendant at trial as the man who gave her the passes.
Melissa Munich testified that she became vonStockhausen's roommate in September 2008. She and her father moved some of her things into vonStockhausen's home on September 12, 2008. She did not have any friends help her move and she did not provide a key to the home to any other person.
San Jose Police Detective John Mitchell testified that in October 2009, he received a report from the Santa Clara crime lab regarding a CODIS hit on some DNA that had been submitted in this case. Based on the information in the report, he scheduled a meeting with defendant. During their conversation, the detective told defendant that he was investigating this incident. Defendant declined to talk about the incident but he consented to having the detective do a DNA swab. The detective booked the swab into evidence and then took it to the crime lab. In March 2010, the detective prepared a photographic lineup that he showed to Thanh Vu. Vu picked defendant's photo out of the lineup.
On December 8, 2010, San Jose Police Officer Scott Morasci testified that he met with Thanh Vu at a movie theatre on September 15, 2008, after the manager of the theatre reported that Vu had used stolen tickets to get into the theatre. Vu told the officer how she had obtained the tickets.
San Jose Police Officer Brian Pettis testified that vonStockhausen told him on September 13, 2008, that movie passes had been taken from her home. She said that she had received the passes from her father. The officer met with vonStockhausen's father, and the officer made a note of the serial numbers of the missing tickets. He also met with the theatre manager. Officer Pettis was also the officer who showed vonStockhausen the knife found in the Oversons' front yard. VonStockhausen identified the knife as the one that had been taken from her home.
The parties stipulated that defendant was arrested on September 13, 2008. San Jose Police Officer Anthony Serrano then testified that he interviewed defendant in jail on September 16, 2008, as a suspect in a sexual assault investigation. During that interview, defendant said that he worked at the flea market and went to a movie theatre on the day before his arrest. He said that he got free tickets to the theatre from someone while he was there.
After the lunch recess, defense counsel requested a continuance so that she could contact Ryan Vachon, "the witness whom we were trying to stipulate around." Vachon was attending an out-of-state law school and was in the middle of final exams. The prosecutor objected to a continuance, in part because counsel had already "conducted her own evaluation of the work that was done." Defense counsel stated that all she needed was enough time to allow her investigator to talk to Vachon on the telephone, maybe as little as "15, 20 minutes." Following a discussion at the bench, the court ruled that it would "give counsel opportunity to have their investigator speak with the witness in question and to report back . . . . [¶] In the meantime, it appears that both sides are prepared to go forward with the remaining witness for the People, whatever stipulations have been agreed to; is that correct?" Both counsel responded "Yes."
Lynne Burley, a supervising criminalist and the technical leader of the DNA unit of the Santa Clara crime lab, then testified as an expert in the areas of screening for biological material and DNA analysis. Burley testified that she did not perform the DNA analysis in this case. Ryan Vachon, who has since left the lab, performed the analysis. Burley reviewed Vachon's case notes and report packet. The DNA profile generated from one of the swabs of the knife was searched in Santa Clara County's database on September 29, 2009. At the time of the search, the profile matched a profile from a cigarette butt in an unassociated case. That match was reported to the police agency. On February 19, 2010, Detective Mitchell gave the lab a DNA sample from defendant. Vachon compared that sample to the DNA profile from the knife. Burley reviewed the analysis of that comparison and concluded, consistent with Vachon, that defendant is the source of the DNA recovered from the swab of the knife. A DNA analysis of the sock was performed on March 19, 2010. Vachon compared that analysis to defendant's sample, and Burley reviewed his analysis. Burley concluded, consistent with Vachon, that defendant is the source of the DNA recovered from the sock. Vachon concluded, and Burley agreed, that defendant could be excluded from the DNA mixture from several people that was taken from the armrest cover. No sample of the DNA swab from the knife remains; Vachon had to use the entire swab in order to get a DNA profile. Vachon's tests ruled out the possibility that the stain on the sock was blood, but he did not test it for saliva or semen.
After the prosecution rested, the defense rested without calling any witnesses. However, defense counsel asked that "the record reflect that—that Dr. Simon Ford was actually present during Ms. Burley's testimony, and I consulted with him . . . ." After the court heard argument from the parties, the matter was submitted.
On December 9, 2010, the court reopened the matter to allow defense counsel to submit an additional exhibit into evidence. Defendant admitted all the prior allegations. The court found "beyond all reasonable doubt that the evidence, both the laboratory evidence, and the circumstantial evidence establishes that [defendant] was the party who committed the offenses." "I find the defendant guilty of each of the three counts beyond a reasonable doubt." "Further, the special allegation pursuant to Penal Code Section 667.5(c)(21), the further allegation that someone not an accomplice of the defendant was present in the residence during the commission of the burglary, the Court is satisfied beyond a reasonable doubt and does find that allegation true."
Sentencing
On January 26, 2011, the prosecutor filed a sentencing memorandum whereby she requested that defendant be sentenced to prison for 19 years eight months. On March 7, 2011, defense counsel filed a sentencing memorandum whereby she requested that the court strike defendant's prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and section 1385, and sentence him to prison for 9, 11, or 15 years. The probation report recommended that defendant be sentenced to prison for 15 years four months.
At the sentencing hearing on April 11, 2011, the court stated that it had read and considered the probation report, the People's sentencing memorandum, and defendant's sentencing memorandum. Defense counsel submitted additional letters from defendant's family members "and others concerned with the matter." The prosecutor moved to dismissed the prison prior, and read a letter from vonStockhausen, who was present at the hearing. Defendant's father spoke on defendant's behalf, and defendant spoke on his own behalf. After hearing argument from the parties and the matter was submitted, the court denied defendant's request to strike the strike. The court then sentenced defendant to prison for 13 years with 431 days custody credits. The sentence consists of eight years (double the midterm) on count 2 (first degree burglary, §§ 459, 460, subd. (a)), and a consecutive term of five years for the prior serious felony (§ 667, subd. (a)). The court imposed and stayed the terms on counts 1 (first degree robbery, §§ 211, 212.5, subd. (a)) and 3 (false imprisonment, §§ 236, 237) pursuant to section 654, and dismissed the prison prior.
The Appeal
Defendant filed a timely notice of appeal and we appointed counsel to represent him in this court. Appointed counsel has filed a brief which states the case and facts but which raises no issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. Defendant has exercised that right by filing on October 14, 2011, a three-page handwritten letter that states:
"To whom it may concern at this moment I do not have my transcripts. I do have some issues regarding my case (Santa Clara County No C1073465[)]. I never done a supplementary brief so I hope that this is the proper way of doing one. First of all is about the DNA testing and why wasn't the detectives questioned on why they needed to take DNA swab the first time I was arrested when they already had DNA results on file. Then 3 week[s] later I was arrested on a bogus parole violations then indi[c]ted on DNA that I question is now found on a sock a year [and] a half later. My concern is that my defense attorney never did what I asked for regarding that she test the DNA. If the DNA was saliva then it would bring an argument on how all of a sudden it[']s on this sock. So if the DNA that she told me she had info that I never received to review and my questions were just brushed off until my court trial started and then she brought Mr. Ford to find any issues regarding DNA at the trial. [¶] Why did she wait till the last moment to have a specialist if she needed one. Then at trial she was going to pay for a flight for the person who did the lab testing then changed her mind without explaining why. I believe there [is] something to argue and that my problem was my defense attorney not doing her job or had [not] realized there may be issues regarding the DNA. I believe that something does not seem right and that there was even a photo line up that was never questioned on how the detectives did their procedure. [¶] My main concern is that I asked from the day I met [defense counsel] to test the DNA and 2 1/2 months later she said she tested it and that I'm all over the sock. I asked to give me all the info or test results and she told me I would not understand it and it is a lot of paper work. If I don't have rights based on this then I don't want to waste your time. All I want is the truth and I hope and pray this will offer what I ask. [¶] This is my main concern since the day I spoke to [defense counsel]. There's a lot of holes in this case and I just want answers. [¶] One last thing do I have a right to file a motion 1405 for DNA testing? Here are some notes that I'm learning from the law library if it helps in any way on what my concerns are. [¶] Thank you for reading this and hopefully it's a start in the right direction."
Attached to the letter are two pages of notes on cases discussing claims of ineffective assistance of counsel, the prosecutor's duty to disclose exculpatory evidence, and a motion for DNA testing under section 1405.
We have reviewed the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, and have concluded that there is no arguable issue on appeal. To the extent that defendant has raised a claim of ineffective assistance of trial counsel, he has not shown either that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, or that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's alleged failings. (People v. Price (1991) 1 Cal.4th 324, 440; Strickland v. Washington (1994) 466 U.S. 668, 687-688.)
The judgment is affirmed.
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P. J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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