People v. Garcia CA5 ( 2021 )

Filed 1/21/21 P. v. Garcia CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078374
Plaintiff and Respondent,
(Super. Ct. No. F18903995)
v.
JORGE JAVIER GRACIA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Jorge Javier Gracia was convicted of six counts of assault with a semiautomatic
firearm, five counts of shooting at an occupied vehicle, brandishing a firearm, multiple
counts of illegal possession of firearms and ammunition, possession of a controlled
substance with a firearm, and possession of a controlled substance. He argues the trial
court erroneously denied his post-trial motion, under People v. Marsden (1970) 2 Cal.3d
118 (Marsden), seeking substitute counsel for purposes of filing a new trial motion. He
requests a remand with directions to the trial court to grant his Marsden motion and
appoint substitute counsel for purposes of preparing and filing a new trial motion. He
also challenges his sentence, arguing the trial court improperly denied his Romero
motion, in which he asked the court to strike one or both of his two prior strike
convictions for sentencing purposes. (People v. Superior Court (Romero) (1996) 13
Cal.4th 497.) We affirm.
PROCEDURAL HISTORY
On July 5, 2018, the Fresno County District Attorney charged Gracia, by
information, with six counts of assault with a semiautomatic firearm, with personal-use
firearm enhancements attached to each count (Pen. Code,1 §§ 245, subd. (b), 12022.5,
subd. (a); counts 1-6); five counts of shooting at an occupied motor vehicle (§ 246;
counts 7-11); one count of brandishing a firearm at a person in a motor vehicle, with a
personal-use firearm enhancement attached (§§ 417.3, 667, 1192.7; count 12); two counts
of possession of a firearm by a felon (§ 29800, subd. (a)(1); counts 13-14); three counts
of unlawful possession of ammunition (§ 30305, subd. (a)(1); counts 15-17); one count of
possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1,
subd. (a); count 18), and one count of possession of a controlled substance with a prior
controlled substance conviction (Health & Saf. Code, § 11377, subd. (a); count 19). The
information further alleged that Gracia had two prior serious felony convictions (§ 667,
1 Subsequent statutory references are to the Penal Code unless otherwise specified.
2.
subd. (a)), which also counted as prior strike convictions (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)).
On October 5, 2018, a jury convicted Gracia on all counts and found all firearm
enhancement allegations true. Gracia admitted the prior conviction enhancement
allegations. On November 5, 2018, the trial court denied Gracia’s Romero motion, and
sentenced him to a determinate term of 130 years, followed by an indeterminate term of
224 years to life, for an aggregate term of 354 years to life in prison.
FACTS
A. Five Shootings at Occupied Vehicles (November 27, 2017 to December 15, 2017)
(1) November 27, 2017 Shooting: Patricia M. and Her Baby
On the evening of November 27, 2017, Patricia M. parked her Ford Focus sedan
on the side of California Avenue in Fresno County; her nine-month-old son was sleeping
in a car seat in the back of the car. A few seconds after she pulled back onto California
Avenue, Patricia heard a loud bang. As she attempted to figure out what had happened,
she looked in her rearview mirror and saw a large, dark-colored, square-topped vehicle
traveling in the opposite direction. It was dark and Patricia could not see very well; she
surmised the vehicle was possibly a Chevy Suburban. The vehicle had passed by her car,
following another car, at the time she heard the loud bang.
When Patricia got home, she examined her car and saw a bullet hole in the back
bumper, on the driver’s side. Eventually, she called the police; officers came to inspect
her car. Officers determined a bullet had landed in the interior of the bumper; the bullet
was retrieved at a body shop.2
2 This incident gave rise to two counts of assault with a semiautomatic firearm
because both Patricia and her son were in the car.
3.
(2) December 4, 2017 Shooting: Ronald B.
On December 4, 2017, between 4:00 p.m. and 4:30 p.m., Ronald B. was driving
his Chevy Malibu northbound on Highway 145 when he heard a loud bang. After a few
seconds, he realized it was a gunshot, and he pulled over on the side of the road. He
looked back and saw that his rear driver’s side window was shattered and his backseat
had a bullet hole in it. He called 911 to report the shooting but did not have a description
of the vehicle that passed by when his car was shot.
Law enforcement officers arrived and examined Ronald’s car. They were unable
to retrieve the bullet with the tools they had with them. A few days later they met Ronald
at his house and extracted the bullet, which was lodged in a plastic crossbeam between
the backseat and trunk.
(3) December 11, 2017 Shooting: Maria A.
On December 11, 2017, between 4:00 p.m. and 5:00 p.m., Maria A. was driving
her Acura SUV home from work on Highway 180 near Howard Avenue when she heard
a loud noise. She thought a tire had blown, or that someone had thrown a rock at her car.
Then she felt air coming through her rear window. Maria believed that, just when she
heard the loud bang, a dark-colored vehicle that was larger than her own went by.
Maria drove home and found that the rear driver’s side window of her car was
shattered, with the glass scattered in the backseat of her car. Her husband had the
window repaired the next day.
A few days later, Maria noticed a piece of a bullet as she removed groceries from
the backseat of her car. She reported the finding and sheriff’s deputies examined her car.
The deputies collected two bullet fragments, one on the backseat and one on the
floorboard. The deputies also observed a hole in the backseat of her car, cut open the
backseat, and collected a bullet fragment lodged in it.
4.
(4) December 11, 2017 Shooting: Robert T.
At approximately 4:45 p.m. on December 11, 2017, Robert T. was driving his
Ford F-250 pickup truck westbound on Jenson Avenue near its intersection with
Dickenson. He noticed a red car, followed by a lifted black pickup truck with mud
terrain tires. As the truck passed Robert, he heard a loud bang. Initially he thought a tire
had blown but, as none of his truck’s warning signals activated, he pulled over to inspect
it. He found a hole in the top of the vinyl truck bed cover. He also saw a hole in the
plastic lining of the tailgate, as well as damage to a trampoline and generator he was
transporting in the back of the truck. Robert called 911 to report the shooting; he noted
that the driver of a black truck had shot at him.
Sheriff’s deputies examined Robert’s truck and took photographs of the damage;
they were unable to access the interior of the tailgate to check for a bullet. Two months
later, Robert called the sheriff’s department to report that a bullet had fallen out of his
truck’s tailgate onto the bumper. Law enforcement officers collected the bullet.
(5) December 15, 2017 Shooting: Paul M.
On December 15, 2017, between 6:30 a.m. and 7:00 a.m., Paul M. was driving his
Chevy Silverado pickup truck to work; he was headed southbound on Dickenson Avenue,
off Highway 180. As a dark-colored pickup passed him, Paul heard a loud bang.
Initially he thought a tire on either his truck or the other truck had blown. After driving
another half mile, he pulled over to the side of the road, to inspect his tires. Seeing no
damage on his tires, he continued on to work. As he got out of his truck at work, he
noticed a bullet hole in the “pillar” separating the windshield from the driver’s side
window, so he called 911. Sheriff’s deputies and a crime scene investigator recovered a
bullet from Paul’s truck.
B. January 8, 2018: Gracia Arrested After Brandishing a Gun
On January 8, 2018, Hector Villarreal, an off-duty correctional officer with the
California Department of Corrections and Rehabilitation, was shopping at a Walmart in
5.
Kerman (off Highway 180) with his family, around 11 p.m. Gracia was at the Walmart
too; footage from Walmart’s surveillance cameras showed Gracia, who was driving a
black truck that day, had parked next to Villarreal’s Ford F-150 truck in the Walmart
parking lot. Villarreal did not take note of the black truck in the parking lot.
Villarreal and his family left the Walmart after purchasing some items.
Surveillance footage showed Villarreal pulled out very shortly after the black truck
parked next to him pulled out. Villarreal drove out of the parking lot and stopped at a red
light before turning onto Highway 180; at that point, he noticed a black truck in front of
him. The black truck was a Chevy Silverado with rugged, off-road tires. The black truck
and Villarreal both turned onto Highway 180, heading in the same direction. The black
truck moved into the slow lane, while Villarreal got into the fast lane and passed the
black truck. The black truck began to drive aggressively, speeding up to get back ahead
of Villarreal’s truck, then slowing down and falling behind Villarreal, only to speed up
and go past Villarreal again. The black truck then slowed down again and as Villarreal
pulled up next to him, the driver of the black truck lowered his window and pulled out a
gun. He was holding the gun in his left hand; the gun was fully outside the truck.
Villarreal was “able to identify a black, semi-automatic handgun.” Villarreal also saw a
“[f]rontal view” of the driver’s face. The driver of the black truck was later identified as
Gracia; Villarreal also identified Gracia in court.
The prosecutor asked Villarreal, “How far from the gun would you say you were?”
Villarreal answered, “[A]nywhere from six to eight feet.” Villarreal explained: “It was
across the rest of my truck. So it was me, my daughter, my brother, and then him and his
truck next to [mine].” Asked where the gun was pointing, Villarreal said: “It was
pointing at me. My vehicle. My family.” Scared that the driver of the truck would
shoot, Villarreal told his family to get down. Villarreal slowed down and veered over to
the left, as a left-turn lane was coming up ahead, at an intersection with a traffic signal.
When Villarreal reached the intersection, the light was red; Villarreal stopped in the left-
6.
turn lane. Villarreal explained what happened next: “As I came up to that stop light, I
thought [the driver of the black truck] was going to go straight on the 180 heading west.
He braked abruptly. He stopped suddenly, and he got behind me.”
When the light turned green, Villarreal turned left onto Highway 145, and drove to
a Fastrip gas station that was about a quarter of a mile down the road; the black truck
followed him to that location. Villarreal and the black truck entered the gas station via
different entrances. Villarreal parked and got out, with his off-duty weapon drawn; he
told his family to call the police, which they did. The black truck parked some distance
away, by the convenience store. Villarreal determined there was one person in the black
truck, in the driver’s seat. At that point Villarreal himself called the police and identified
himself as an off-duty peace officer; three police vehicles arrived within a minute of his
call. Gracia was arrested and taken into custody without incident.
As Gracia was walked to a patrol vehicle, he told officers he had a pipe in his
jacket pocket; the pipe was found to contain methamphetamine residue. Once Gracia was
seated in the patrol car, he was read his Miranda rights, which he waived. Gracia stated
that he believed Villarreal was following him, so he pulled up next to Villarreal’s truck,
rolled down his window, held a pistol out of the window, and pointed the pistol at the
other truck in an attempt to make it go away.
During a search of Gracia’s truck, police found a semiautomatic handgun in the
driver’s door pocket. Methamphetamine and marijuana was found in the truck’s center
console Gracia’s truck was impounded.
C. Additional Police Investigation
Fresno County Sheriff’s Detectives Jose Diaz and Ervin Mathis took over the
investigation. They interrogated Gracia at the police station on the night of his arrest; the
interrogation was recorded and played for the jury at trial. Gracia admitted he brandished
a firearm at Villarreal; he also acknowledged he was a convicted felon and prohibited
from owning firearms. He said he had purchased the handgun at issue, which was a .380-
7.
caliber weapon, approximately two months earlier for about $100, and that he had last
fired it on the Fourth of July. He denied owning any firearms other than the handgun
found in his truck. He also denied any involvement in the series of shootings in the area.
Gracia’s home was searched the next day. During the search, officers found a .30-
caliber rifle, two types of ammunition rounds (.30-caliber and 30-caliber), as well as .40-
millimeter handgun rounds.
Police obtained all the data from Gracia’s cell phone. Among the photographs on
the phone was one depicting a hand holding a handgun that looked similar to the handgun
found in Gracia’a truck; the photograph was taken on June 30, 2017.
Police obtained cell phone records from Gracia’s cellular provider, in order to
ascertain the location of Gracia’s phone when the shootings at vehicles in the area had
occurred. The police also obtained cell phone records for Patricia M., Ronald B., Maria
A., Robert T., and Paul M.—whose vehicles were shot at in the months before Gracia’s
arrest.
Hector Luna, an FBI agent, analyzed the cell phone records to determine the
location of Gracia’s cell phone relative to the cell phones of the shooting victims at the
times the shootings occurred. Luna opined that Gracia’s cell phone was in the general
vicinity of each shooting when it took place.
A ballistics expert determined that the bullets recovered from the victims’ vehicles
were all shot from the gun that officers found in Gracia’s truck. The expert also
determined that the handgun found in Gracia’s truck was a fully functional semiautomatic
firearm.
An identification technician for the sheriff’s department used a gunshot residue kit
to collect swab samples from the interior of Gracia’s truck, including from the driver’s
door and the driver’s seat. A criminalist examined the swabs and determined that
gunshot residue was present in the truck’s interior, including on the driver’s seat.
8.
D. Evidence of Uncharged Acts
1. November 20, 2017: Uncharged Gun Brandishing Incident
On November 20, 2017, at approximately 4:00 p.m., Ray L., who was driving his
work van (a “gray nondescript van” with government plates), turned on to one of two
southbound lanes of Highway 99, from Madera Avenue in Madera. Ray explained: “I
got on in the slow lane. About hundred yards after I was in the slow lane a black pick-up
truck came by me and then got around in front of me. I assumed he was getting off at the
next exit, and I proceeded to move over into the fast lane to speed up with traffic.” Ray
described the truck: “It was [a] black or a dark colored Chevy Silverado, lifted up a little
bit. Had some mud and snow tires on it.” The black truck did not get off at the next exit;
rather its driver “maintain[ed] his course.”
Ray continued: “I wasn’t paying attention to him till his window came down in
his truck. He wasn’t doing anything out of the ordinary that caused me to pay attention to
him. [¶] … [¶] As I passed by – I tend to look around me just to make sure nothing odd
is happening. It’s just a habit. And as I was coming up I noticed his window started to
come down, so that drew my eye towards his truck. [¶] … [¶] And then, I see the end of
a pistol coming out of the window pointing at me, shaking it to make sure I noticed it’s
there. At that point I let up on my gas and just coasted back. [¶] … [¶] And as soon as I
started backing up he put his window back up again.” Ray had been a small arms
specialist in the Navy; he had also worked at numerous gun shops (repairing guns) after
he left the Navy. He was able to identify the gun as a semiautomatic weapon; the gun
was a “darker color,” not a “stainless” weapon. Ray pulled in behind the truck and called
911. The truck exited the highway at Avenue 12, while Ray continued southbound on
Highway 99. Ray also reported the truck’s license plate number to the 911 dispatcher.
9.
The truck had a “legacy plate”; it was black with yellow lettering, and the license plate
number was 1GRACIA.3
A few weeks later, Ray followed up with a friend of his at the Madera County
Sheriff’s Office, again providing the license plate number of the black truck. Through
the friend’s efforts, the information was relayed to the Fresno County Sheriff’s Office.
2. November 27, 2017: Uncharged Shooting Incident
On November 27, 2017, between 6:20 a.m. and 7:00 a.m., Patricia P. and a
coworker were driving south on Highway 145 in Patricia’s Toyota Camry. They were
heading from Madera to a school in Five Points, where they worked. Suddenly, as they
were nearing Avenue 9½, they heard a loud bang. They assumed it was a rock and kept
driving. When the bang occurred, a burgundy truck and a car had just gone by. When
they got to work, Patricia saw a hole in the rear driver’s side door of her car. The
principal of her school and others determined it was a bullet hole and the principal
contacted local law enforcement. The hole went right through the door, reflecting a
bullet trail that continued to the car’s trunk. Subsequently, officers from the Fresno
County Sheriff’s Office examined Patricia’s car and collected a bullet from her trunk; it
appeared the bullet had traveled through the door and a side-panel of the backseat and
into the trunk. The bullet was later determined to have been fired from the handgun
recovered from Gracia’s truck.
E. Prior Felony Conviction
The parties stipulated that Gracia had a prior felony conviction (as relevant to the
felon-in-possession charges).
F. Gracia’s Testimony
Gracia admitted to brandishing a gun at Villarreal. He also admitted to possessing
methamphetamine when he was arrested. He denied being involved in any other
3 Ray reported the license plate number as 1GARCIA.
10.
brandishing offense and any of the shootings. He testified he had found the
semiautomatic handgun recovered from his truck, in Sanger, by a cemetery near his
sister’s house, on December 30, 2017. He said he told the police he had purchased the
gun because he was facing only a brandishing charge at the time and did not think the
origin of the gun was an issue. He testified that when he told the police he had last fired
the gun on the Fourth of July, he meant to say he had last fired the gun on New Year’s
Eve. Gracia also noted that the picture on his phone of a hand holding a gun was of a
coworker holding some other gun.
DISCUSSION
I. Gracia’s Marsden Motion Following the Trial
After trial, and prior to sentencing, Gracia sent a letter to the trial court requesting
a new trial on grounds his trial counsel had rendered ineffective assistance of counsel.
The court construed the letter as a Marsden motion based on Gracia’s comments in court
and held a Marsden hearing to determine whether to relieve Gracia’s court-appointed
attorney. The court ultimately denied Gracia’s Marsden motion. Gracia now challenges
that ruling, arguing the trial court erroneously denied his Marsden motion, thereby also
denying him substitute counsel for purposes of filing a new trial motion on his behalf.
He requests a remand for appointment of substitute counsel for purposes of preparing and
filing a new trial motion. We reject Gracia’s contention that the trial court’s denial of his
Marsden motion was erroneous, and affirm his convictions.
A. Applicable Law
“The seminal case regarding the appointment of substitute counsel is Marsden,
supra, 2 Cal.3d 118, which gave birth to the term of art, a ‘Marsden motion.’ ” (People
v. Smith (1993) 6 Cal.4th 684, 690 (Smith).) Marsden held that a defendant has a right to
substitute counsel on a proper showing that the constitutional right to counsel would
otherwise be substantially impaired. (Marsden, supra, at p. 123; see also People v.
Nakahara (2003) 30 Cal.4th 705, 718.)
11.
“The legal principles governing a Marsden motion are well settled.
‘ “ ‘ “ ‘ “ When a defendant seeks to discharge his appointed counsel and substitute
another attorney, and asserts inadequate representation, the trial court must permit the
defendant to explain the basis of his contention and to relate specific instances of the
attorney’s inadequate performance.” ’ ” ’ ” ’ ” (People v. Johnson (2018) 6 Cal.5th 541,
572, italics omitted.) “[I]f a defendant requests substitute counsel ‘at any time during
criminal proceedings,’ the trial court must, under Marsden, ‘give the defendant an
opportunity to state any grounds for dissatisfaction with the current appointed attorney.’ ”
(Id. at p. 573.) “[I]f the defendant makes a showing during a Marsden hearing that his
right to counsel has been “ ‘substantially impaired’ ” [citation], substitute counsel must
be appointed as attorney of record for all purposes. [Citation.]” (People v. Sanchez
(2011) 53 Cal.4th 80, 90.)
Substantial impairment is shown if “ ‘the record clearly shows that the appointed
counsel is not providing adequate representation or that defendant and counsel have
become embroiled in such an irreconcilable conflict that ineffective representation is
likely to result.’ ” (People v. Taylor (2010) 48 Cal.4th 574, 599 (Taylor).) “Tactical
disagreements between the defendant and his attorney do not by themselves constitute an
‘irreconcilable conflict.’ ” (People v. Welch (1999) 20 Cal.4th 701, 728-729, overruled
on other grounds by People v. Blakely (2000) 23 Cal.4th 82, 91.) And “[t]he mere ‘ “lack
of trust in, or inability to get along with,” ’ counsel is not sufficient grounds for
substitution.” (Taylor, supra, 48 Cal.4th at p. 599.)
In the case of post-trial motions to substitute counsel to assist in filing a motion for
a new trial based on ineffective assistance of trial counsel, “the court must conduct a
hearing to explore the reasons underlying the request. [Citations.] If the claim of
inadequacy relates to courtroom events that the trial court observed, the court will
generally be able to resolve the new trial motion without appointing new counsel for the
defendant. [Citation.] If, on the other hand, the defendant’s claim of inadequacy relates
12.
to matters that occurred outside the courtroom, and the defendant makes a ‘colorable
claim’ of inadequacy of counsel, then the trial court may, in its discretion, appoint new
counsel to assist the defendant in moving for a new trial.” (People v. Diaz (1992) 3
Cal.4th 495, 574.)
Where “[t]he court fully allowed defendant to state his complaints, then carefully
inquired into them,” and “[d]efense counsel responded point by point,” reflecting an
understanding of his or her duty as counsel and providing a reasonable explanation for his
or her actions in the relevant context, “the court was ‘entitled to accept counsel’s
explanation.’ ” (Smith, supra, 6 Cal.4th at p. 696.) We review the denial of a Marsden
motion for abuse of discretion. (Taylor, supra, 48 Cal.4th at p. 599.) “Denial is not an
abuse of discretion ‘unless the defendant has shown that a failure to replace counsel
would substantially impair the defendant’s right to assistance of counsel.’ ” (Ibid.)
B. Analysis
Gracia argues that he sufficiently demonstrated, at the Marsden hearing conducted
by the court, that defense counsel had rendered ineffective assistance during his trial and,
in turn, his right to counsel was substantially impaired, whereby the trial court’s denial of
his request for substitute counsel was erroneous.
(1) Potential Testimony of Gracia’s Girlfriend
First, Gracia contends defense counsel was ineffective because she did not
sufficiently develop his defense, as reflected in his testimony, that on December 30,
2017, he had fortuitously found, at a location in Sanger, the semiautomatic handgun that
he brandished at Villarreal on January 8, 2018, and that was recovered from his truck
upon his arrest that same day. In support of this contention, Gracia posits that his
girlfriend, Alisa L., was with him when he found the gun near a cemetery in Sanger after
the shootings at issue had occurred, and was ready to corroborate his testimony in this
regard, but counsel failed to call Alisa as a witness.
13.
At the Marsden hearing, Gracia told the court: “I found the gun. I needed my
girlfriend’s testimony. She was here at the beginning of the trial ready to make herself
available to my attorney … to testify on my behalf. And to me, she’s – she was with me.
When I asked [counsel] if she was going to do that, she hadn’t been subpoenaed.
[Counsel] said she wasn’t going to bring her … And I needed her here as my witness
because she knows everything.”
The court questioned defense counsel in detail about her work on the case,
including her failure to call Alisa as a witness at trial. Counsel explained that she made a
tactical decision not to call Alisa to testify that she was with Gracia when he happened to
find a handgun in Sanger. Counsel noted that the defense interviewed Alisa and an
investigator went with Alisa to the cemetery where she said Gracia found the handgun.
Counsel further explained that both Gracia and Alisa had made inconsistent statements
regarding the gun. Gracia had told law enforcement officers during his interrogation that
he had purchased the gun. Alisa had given inconsistent accounts to the police and to the
defense regarding her knowledge of Gracia’s possession of the gun and how he obtained
it (her statement to law enforcement was audio recorded). In addition, some of Alisa’s
statements conflicted with certain statements made by Gracia, including statements made
by Gracia that were not introduced at trial. Counsel concluded Alisa’s testimony would
not add value to the defense but, instead, would undermine it. Furthermore, the
testimony of Ray L., at whom Gracia had brandished a dark, semiautomatic handgun on
November 20, 2017, and who took down Gracia’s license plate number, contradicted
Alisa’s potential testimony.
Under the circumstances, the court was entitled to credit counsel’s explanation.
(People v. Dickey (2005) 35 Cal.4th 884, 922 [“We do not find Marsden error where
complaints of counsel’s inadequacy involve tactical disagreements.”]; People v. Turner
(1992) 7 Cal.App.4th 1214, 1219 [a defendant’s disagreement with trial preparation and
strategy is not grounds for substitution of counsel]; People v. Rices (2017) 4 Cal.5th 49,
14.
69.) Accordingly, Gracia has not shown that counsel’s failure to call Alisa as a witness
substantially impaired his right to counsel.
(2) Police Tracker on Gracia’s Truck and the Truck’s “On Star” System
Gracia next argues his trial counsel was ineffective because she failed to utilize
location data from a tracker the police had placed on Gracia’s truck on December 20,
2017 (after Ray provided the license plate number to authorities), as well as from a
location-tracking system preinstalled in Gracia’s truck. Gracia contends data from these
sources would have shown he was actually in the location in Sanger where he said he
found the phone (i.e., by a cemetery near his sister’s house) at the relevant time.
Once again, the court carefully listened to Gracia’s concerns and methodically
questioned defense counsel on the issue. Defense counsel provided a specific and
reasonable explanation as to why she did not present data from the police tracker on
Gracia’s truck or the truck’s preinstalled location-tracking system to bolster Gracia’s
testimony that he had found the handgun in question in Sanger. As to the truck’s own
location tracking system, counsel noted that Gracia was evidently referring to the “On
Star system,” adding that Gracia himself had explained that the system was not actually
activated during the relevant period. As to the police tracker, counsel explained it was
placed on Gracia’s truck after the shootings at issue in the case had concluded, so data
from the tracker was not relevant in terms of identifying the location of Gracia’s vehicle
at the time of the shootings themselves.4 Furthermore, as the court noted, even had the
tracker data shown Gracia’s truck was in Sanger when he said he found the gun by the
cemetery there, it would not have corroborated Gracia’s testimony that he found the gun
4 All the charged shooting and brandishing incidents, other than the brandishing at
Hector Villarreal that led to Gracia’s immediate arrest at the Fastrip, occurred during the
period from November 27, 2017, to December 15, 2017. The police tracker was placed
on Gracia’s truck on December 20, 2018. And Gracia testified he found the gun in
Sanger on December 30, 2017.
15.
there on that occasion. Indeed, Gracia said his sister lived near that location in Sanger, so
the fact that Gracia was in that location was not particularly probative by itself. In sum,
the court was entitled to accept counsel’s explanations in these respects.
(3) More Complete Investigation
Finally, Gracia contends defense counsel was ineffective because she did not
investigate miscellaneous other issues that would have supported his defense. Gracia
suggests counsel should have investigated cell phone data from his and Alisa’s phones in
case it revealed both of them were in Sanger on December 30, 2017, the date on which he
says he found the gun by a cemetery there. However, as the court suggested, evidence
that both Gracia and Alisa were in Sanger on December 30, 2017, was not particularly
probative of Gracia’s claim that he found the gun by a cemetery there on that date.
Furthermore, counsel explained the defense had in fact retained a cell phone expert but
decided against calling the expert to testify, because the expert’s conclusions actually
undermined the defense case and “bolstered” the prosecution’s case. Rather, counsel
used the expert’s suggestions to effectively cross-examine the prosecution’s cell phone
expert.
Gracia next suggests that the On Star system in his truck “may have shown his
location at the time of the shooting incidents,” thereby supporting his defense that he did
not commit the shootings. Gracia suggests counsel should therefore have further
investigated this avenue as part of his defense. However, as noted above, counsel
explained that Gracia had informed his team that the On Star system in the truck was not
activated during the relevant period.
Gracia also suggests that counsel should have further investigated the origins of
the photograph of a hand holding a gun that was found on Gracia’s cell phone. The
photograph was taken on June 2017, six months before Gracia said he found the gun in
Sanger. After Gracia was arrested and booked into jail in the instant matter, he told his
girlfriend, during a phone call from jail, to delete a photograph on his phone that shows
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him holding something as he was concerned about the date stamp related to it. There is
no indication of any feasible way for defense counsel to connect the photograph of the
hand holding a gun that was found on Gracia’s phone with another person. Gracia has
not shown defense counsel’s investigation was deficient and substantially impaired his
right to counsel.
(4) Conclusion
We conclude Gracia did not show, at the Marsden hearing, that his right to counsel
was, or would be, substantially impaired, requiring the appointment of substitute counsel
to represent him for purposes of new trial motion. Accordingly, the trial court properly
denied his Marsden motion. We therefore decline to remand the matter for appointment
of substitute counsel for purposes of preparing and filing a new trial motion on Gracia’s
behalf.
II. Gracia’s Romero Motion
Gracia’s instant offenses occurred in late 2017 and early 2018. He was convicted
of the charges in October 2018. Gracia filed a Romero motion in connection with his
sentencing, requesting the court to strike one or both of his prior strike convictions under
section 1385. (See Romero, supra, 13 Cal.4th 497.) The court denied the motion and
Gracia now challenges that ruling, arguing the court’s failure to strike “at least one of the
two prior [strike] convictions” constituted an abuse its discretion. We affirm.
Romero confirmed that, under the Three Strikes scheme, the trial court retains the
discretion to dismiss or strike one or more of the defendant’s prior serious or violent
felony convictions, alleged as a recidivist enhancement under the scheme. (Romero,
supra, 13 Cal.4th at pp. 504, 529-530.) More specifically, Romero clarified the court
may strike prior “strike” convictions pursuant to section 1385, “in furtherance of justice.”
(§ 1385; Romero, supra, at p. 531.)
A request for such relief is commonly referred to as a Romero motion. (People v.
Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) The trial court’s ruling on a Romero
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motion is reviewed for abuse of discretion. (Carmony, supra, at p. 375.) Our Supreme
Court has noted this standard of review is deferential but not “empty.” (People v.
Williams (1998) 17 Cal.4th 148, 162 (Williams).) “Although variously phrased in various
decisions [citation], it asks in substance whether the ruling in question ‘falls outside the
bounds of reason’ under the applicable law and the relevant facts. [Citations.]” (Ibid.)
Williams addressed the scope of the inquiry to be undertaken by the trial court in
ruling on a Romero motion. The touchstone of the Romero determination is whether “the
defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 161.) Williams
clarified that making this assessment requires “balanc[ing]” the defendant’s
“constitutional rights,” including “the guaranties against disproportionate punishment of
the Eighth Amendment to the United States Constitution and article I, section 17 of the
California Constitution” on the one hand, and “society’s legitimate interests,” including
“the fair prosecution of properly charged crimes,” on the other hand. (Williams, supra, at
pp. 160-161.)
In striking the requisite balance, “preponderant weight must be accorded to factors
intrinsic to the [Three Strikes] scheme, such as the nature and circumstances of the
defendant’s present felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects.” (Williams, supra, 17 Cal.4th at
p. 161; see Romero, supra, 13 Cal.4th at p. 531 [in exercising its discretion as to whether
to strike a prior strike conviction, the court must consider the “ ‘defendant’s
background,’ ” “ ‘the nature of his present offenses, ’ ” and other “ ‘individualized
considerations’ ”].) “ ‘[W]hen the balance falls clearly in favor of the defendant, a trial
court not only may but should exercise the powers granted to him by the Legislature and
grant a dismissal in the interests of justice.’ ” (Carmony, supra, 33 Cal.4th at p. 375.)
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Gracia’s two prior strike convictions were for rape of an intoxicated person (§ 261,
subd. (a)(3)) and assault with intent to commit rape of an intoxicated person (§ 220),
committed in 1997 and 1999 respectively. Gracia was sentenced to 17 years in prison in
1999, for the second offense. After his release from prison, he committed, in 2012, the
misdemeanor offenses of driving under the influence of alcohol (DUI) and driving while
his license was suspended or revoked for DUI. (Veh. Code, §§ 23152, subd. (b),
14601.2, subd. (a).) In 2013, he committed the additional misdemeanors of driving while
his license was suspended or revoked for DUI and driving while in possession of an open
container of alcohol. (Veh. Code, §§ 14601.2, subd. (a), 23222, subd. (a).) Gracia then
committed the offenses charged in the instant case in 2017 and 2018.
In denying Gracia’s Romero motion, the court stated that it had reviewed the files
of Gracia’s prior convictions. The court observed: “And sir, you have not shown any
amount of rehabilitation for the Court to even believe that [section] 1385 is appropriate in
this case. You have been incarcerated the majority of your adult life. You have not
returned back into the community with [an] attitude of having to live a law-abiding
lifestyle. And the time-frame between, obviously, you being released and [your other
crimes] is very short.” The court concluded: “[Y]ou fall squarely within the three strikes
rules.” The court then denied the Romero motion. We detect no abuse of discretion in
the court’s reasoning or ruling.
III. Abstract of Judgment
The People request the correction of a clerical error in the abstract of judgment
with regard to the sentence on count 12. On count 12, brandishing a firearm, Gracia was
sentenced to an indeterminate term of 25 years to life, with an additional five-year term
for each of Gracia’s two prior serious felony convictions. Thus, Gracia was sentenced on
this count to an indeterminate term of 25 years to life plus a determinate term of 10 years.
The abstract of judgment however erroneously reflects a single indeterminate sentence of
35 years to life. The trial court is directed to prepare an amended abstract of judgment
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correcting this error and to forward it to the appropriate correctional authorities. (See
People v. Jones (2012) 54 Cal.4th 1, 89 [“When an abstract of judgment does not reflect
the actual sentence imposed in the trial judge’s verbal pronouncement, this court has the
inherent power to correct such clerical error on appeal.”].)
DISPOSITION
The judgment is affirmed. The trial court is directed to issue an amended abstract
of judgment reflecting, as to count 12, that Gracia was sentenced to an indeterminate term
of 25 years to life plus a determinate term of 10 years, and to forward the amended
abstract to the appropriate correctional authorities.
SMITH, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
SNAUFFER, J.
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