People v. Gonzalez
| Decision Date | 16 August 2022 |
| Docket Number | F080665 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. CARMELO GONZALEZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No BF178091A. John D. Oglesby, Judge.
Matthew J. Watts, under appointment by the Court of Appeal for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Timothy L. O'Hair, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Carmelo Gonzalez was arrested after a late-night confrontation with a stranded motorist led to a standoff with sheriff's deputies. Defendant was charged with making criminal threats (Pen. Code, § 422, subd. (a); count 1),[1] being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 2), brandishing a firearm (§ 417, subd. (a)(2); count 3), and resisting a peace officer (§ 148, subd. (a)(1); count 4). Defendant was convicted by jury of firearm possession and resisting a peace officer, but he was acquitted of making criminal threats and brandishing a firearm. After defendant declined probation during the sentencing hearing, the trial court imposed the middle term of two years for firearm possession and a concurrent term of 365 days in jail for resisting arrest.
On appeal, defendant claims his conviction for resisting a peace officer is not supported by substantial evidence that he resisted any commands he understood, and his later refusal to open the door to deputies when commanded in Spanish is not sufficient to support the conviction. Alternatively, he claims that in light of the evidence of multiple acts and the prosecutor's failure to make an election, the trial court erred when it failed to instruct the jury on unanimity. Finally, he claims that the trial court erred when it denied his motion to suppress the in-field identification and any in-court identifications as tainted, and that the admission of the identification evidence violated his right to due process.
The People dispute any errors occurred, but they contend that if errors are assumed as to the unanimity instruction and the admission of the identification evidence, they were harmless.
We conclude that defendant's conviction for resisting a peace officer is supported by substantial evidence, a unanimity instruction was not required, and the trial court did not err in denying defendant's motion to suppress the in-field identification. Therefore, we affirm the judgment.
In August 2019 between 10:00 and 11:00 p.m., Leslie T. was driving with her fiancé, John M., their infant son, her parents, and her uncle when their vehicle blew a tire after hitting a pothole. She pulled over next to a vacant lot that was across a four-lane street from an auto body repair shop.
John testified that he and Leslie's father tried to fix the tire, but did not have the tools they needed, so first a friend and then a relative came to help. During the time John was working on the tire, a stranger, later identified as defendant, appeared across the street. He was mumbling in English and in Spanish, and John tried to ignore him. After what John estimated to be 20 minutes, defendant crossed over to the center median dividing the street and told John to step away from the vehicle. John continued to ignore him, but defendant seemed to think John was trying to steal the vehicle and he also said something about John having his daughter in the vehicle.
John and his friend walked over to the center median to clear things up, but defendant reached for his side and took out a small, silver .22-caliber handgun, pointed it at the ground, and, in English, twice threatened to shoot if John came any closer. John did not think defendant was going to shoot him, but he was afraid and went back to his vehicle. Leslie called 911. Defendant stayed in the median for a while and then walked back across the street.
Consistent with John's testimony, Leslie said defendant came from the repair shop across the street and started yelling at them. He was speaking both English and Spanish, and they ignored him until he crossed the street to the median. When John and his friend approached the median, Leslie could not hear what was being said, but she saw defendant pull a gun, which he kept "down low." Defendant came within two or three feet of John and within 10 feet of her. After defendant pulled out a gun, John retreated and told her to call the police. As she spoke to the dispatcher, defendant continued screaming as he walked backward. Defendant eventually went inside the repair shop, but he was still outside when deputies arrived. John and Leslie could see him, and they pointed him out to deputies.
Deputies Rivero, Santos, and Garcia were among the multiple sheriff's deputies dispatched to the scene. Rivero arrived first at approximately 10:45 p.m. with Santos behind him by only one minute or so. Rivero asked Leslie where the person who had brandished the firearm was and she pointed to an older Hispanic male, whom Rivero identified as defendant, across the street. Rivero saw defendant standing in the northbound traffic lanes, approximately 15 yards away. He did not see a firearm, but Leslie told him she had seen one, and he immediately began commanding defendant to drop the firearm and lay on the ground. Defendant was yelling incoherently in English and in Spanish, and he told Rivero to go away as he walked backward toward the repair shop.
The repair shop property was surrounded by a fence with a see-through iron gate, and there was a second interior gate in the middle of the yard that was solid. Rivero was able to see defendant as he entered the property and closed the perimeter gate, but lost sight of him when he went through the second gate and closed it. Santos also saw defendant retreat into the yard. At some point after defendant retreated, Garcia began commanding defendant over a loudspeaker in English and in Spanish that he was under arrest and to come out.
Deputies had established a perimeter and there was a sheriff's helicopter above the property, where there were two buildings. Rivero saw a light on in one of the buildings and the helicopter crew relayed that the light had turned off. Rivero had not seen anyone else around and believed that was where defendant was located. After relaying that information, approximately six deputes, including Rivero and a K-9 unit, approached the building. Deputies knocked and announced themselves, and they could see and hear defendant yelling from inside the office. Garcia was able to see defendant through a large window he had torn the exterior shade from, and he was giving defendant commands in both English and Spanish.
The door to the office was mostly glass with an iron security door that had bars but no privacy screen. Through the doors, Rivero could see defendant hiding behind a file cabinet, and he thought defendant was behaving as if paranoid. Defendant kept raising his hand and his head, up and down.
After Santos pried the security door open and smashed the door glass with a sledgehammer, deputies entered the office and arrested defendant. They located a silver Smith and Wesson handgun with a black handle on the floor next to where defendant had been hiding. Deputies cleared the building and did not locate anyone else.
Approximately two hours passed between the deputies' arrival and defendant's arrest. During the standoff, a records search was conducted on the property, and a dispatcher informed Santos that defendant's name was associated with the business. Santos obtained a photograph of defendant and, at some point during the standoff, showed it to John, who identified defendant as the person who pulled a firearm and threatened to shoot him. On cross-examination, Santos testified he did not have time to leave the scene, create a six-pack lineup, and print it out given the situation involving a reportedly armed suspect who was not complying with deputies' commands. After defendant was arrested, Santos gave John an admonition and then John viewed defendant. John again identified defendant as the individual who pulled a firearm and threatened to shoot.
Defendant claims his conviction for resisting a peace officer is not supported by substantial evidence. He advances two arguments. First, he contends there is no evidence that prior to entering the repair shop office, he understood the deputies' commands in English, and he cannot be convicted for violating section 148 by merely failing to comply with commands he did not understand. Second, he contends that once he retreated inside the office, his mere failure to open the door cannot support conviction under section 148. We find no merit to either argument.
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio)). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record...
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