Filed 10/13/20 P. v. Romero CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C090330
Plaintiff and Respondent, (Super. Ct. No. 62146422)
v.
GERARDO ROMERO ROMERO,
Defendant and Appellant.
Appointed counsel for defendant Gerardo Romero Romero filed an opening brief
that sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d
436.) After examining the record, we find no other arguable error that would result in a
disposition more favorable to defendant and affirm.
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I. BACKGROUND
Defendant was originally charged with the willful, premeditated attempted murder
of his wife after shooting her in the chest. (Pen. Code, §§ 664/187, subd. (a).)1 It was
further alleged that defendant intentionally and personally discharged a firearm resulting
in great bodily injury (§ 12022.53, subd. (d)), and that he inflicted great bodily injury
under circumstances involving domestic violence (§ 12022.7, subd. (e)). A jury found
him guilty of the attempted murder and found that during the offense he acted willfully,
deliberately, and with premeditation. The jury also found the attached firearm
enhancement true. The trial court sentenced him to an aggregate indeterminate term of
32 years to life in prison, including seven years to life for the attempted murder offense
plus 25 years to life for the firearm enhancement.
Defendant appealed his convictions, and in March 2019, we affirmed the judgment
in an unpublished opinion but remanded the matter for the trial court to determine
whether to exercise newly-granted discretion under Senate Bill No. 620 to strike the
section 12022.53 firearm enhancement. (People v. Romero (Mar. 5, 2019, C085965)
[nonpub. opn.].)
Upon remand, defense counsel filed a motion to strike the firearm enhancement,
arguing the court should exercise its discretion to strike because the enhancement
exceeded the punishment for attempted murder, defendant had mental health and
substance abuse issues, he seemed to be under the influence of medication or drugs at the
time of the offense, he and the victim had a lengthy marriage with minimal issues, he was
a hard worker who provided for his family, and that he would still be sufficiently
punished if the court struck the firearm enhancement.
1 Further undesignated statutory references are to the Penal Code.
2
The People opposed the motion, noting defendant shot his wife at close range and
inflicted serious injuries that required multiple surgeries and extensive hospital stays.
Reducing his sentence, the People argued, placed his wife at risk. Defendant also denied
responsibility for his actions, and his substance abuse and the alleged mental health issues
did not excuse his behavior.
Before the hearing on the motion to dismiss, defendant filed a Marsden motion to
relieve his appointed counsel. The court denied the motion.
At the hearing on the motion to dismiss or strike the firearm enhancement,
defendant expressed remorse and advised the court that he suffered from ill health in
prison. He requested relief so he could one day visit his elderly parents. The prosecutor
read a letter from the victim expressing her fear of defendant if released.
After considering the parties’ arguments, the court declined to exercise its
discretion to strike the firearm enhancement. The court characterized the offense as very
serious, noting it caused extensive emotional and physical pain. The court also
considered the victim’s concerns for her life and the lives of her children. While the trial
court acknowledged that defendant’s criminal record was not extensive, it found no
mitigation in defendant’s age, his health issues, or his claims of alcohol or drug addiction.
The court discounted defendant’s statement of remorse at the hearing in light of his lack
of remorse at the initial sentencing and subsequent statements to probation. On balance,
the trial court found it would be inappropriate to strike the firearm enhancement, or to
substitute a lesser enhancement assuming it had the discretion to do so. Defendant timely
appealed.
II. DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and requesting that this court review the record to
determine whether there are any arguable issues on appeal. (People v. Wende, supra,
25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30
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days of the date of filing of the opening brief. Defendant filed a supplemental brief
asserting that his public defender failed to call “key” witnesses during trial. Defendant’s
brief does not identify which witnesses counsel allegedly failed to call.
Based on defendant’s supplemental brief, he appears to argue he received
ineffective assistance of counsel during trial. Defendant, however, fails to identify which
witnesses he contends should have been called, or explain what evidence or information
such unidentified witnesses might have provided that would have resulted in a more
favorable outcome. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 [to establish
ineffective assistance of counsel, a defendant must show by a preponderance of the
evidence that his counsel’s representation fell below the standard of a competent
advocate and a reasonable probability exists that, but for counsel’s errors, the result
would have been different].) Furthermore, defendant failed to raise this issue during his
first appeal even though he argued that his counsel was ineffective for choosing not to
request a pinpoint jury instruction on provocation. He cannot belatedly raise the
additional ineffective assistance of counsel argument now. (People v. Senior (1995)
33 Cal.App.4th 531, 538 [“where a criminal defendant could have raised an issue in a
prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent
a showing of justification for the delay”].)
Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
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III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
RAYE, P. J.
/S/
HOCH, J.
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