People v. Gomez CA6

Filed 6/24/14 P. v. Gomez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039952 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1348695)

v.

PAUL GEORGE GOMEZ,

Defendant and Appellant.

On his plea of no contest, Paul George Gomez was convicted of vehicle theft and disorderly conduct. On appeal he contends that the order granting probation failed to clearly reflect certain terms of his plea bargain and failed to include required scienter elements in two probation conditions. Respondent concedes the errors. We will modify the judgment accordingly, and affirm the judgment as so modified. BACKGROUND Late on the night of January 20, 2013, San Jose Police Officer Elizabeth Ornelas was patrolling in her vehicle when she saw a Blue Honda which, according to a records check, had been reported stolen. After another officer arrived to assist her, she “initiated tactical parking” by passing the Honda and stopping her own car. She heard the Honda’s engine “revving” and then felt an impact as the Honda “rammed” her vehicle. Both officers got out of their cars and approached the driver’s side of the Honda. Both

identified defendant at the preliminary hearing as the driver. After he ignored instructions to get out of the car, Officer Rodriguez broke the window with his baton. The officers opened the door and pulled defendant out of the vehicle and onto the ground. He refused orders to show his hands and put them behind his back until after Officer Ornelas struck him with her baton. Inside the Honda they found no keys, but there was a screwdriver with which Officer Ornelas was able to shut off and restart the engine. When arrested defendant was wearing a blue hoodie and sporting several tattoos, including a “13,” “M-S-L,” “W-S-S-J,” three dots near the outer corner of his left eye, and a cross on his middle finger. A passenger in the Honda had a blue bandana hanging from a pocket. Testifying as an expert at the preliminary hearing, a police officer opined that defendant was a member of a criminal street gang and that his actions in this case were committed for the benefit of a criminal street gang. Defendant was charged with three counts: (1) Assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)), with a gang enhancement (id., § 186.22, subd. (b)(1)(B)); (2) vehicle theft (Veh. Code, § 10851, subd. (a)) with a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(A)); and (3) misdemeanor obstructing an officer (Pen. Code, § 148, subd. (a)(1)). On June 17, 2013, the court and counsel made a record of a negotiated plea under which counts 1 and 3 would be dismissed and the information would be amended to include a count 4 alleging a “415,” i.e., disorderly conduct in violation of Penal Code section 415, subdivision (1). The gang enhancements attached to count 1 and 2 would also be dismissed. Defendant would plead guilty or no contest to counts 2 and 4, and the court would place him on probation with a jail term equal to credit for time served at time of sentencing. In accordance with these terms, defendant entered pleas of no contest to counts 2 and 4.