People v. Gomez CA2/5

Filed 9/2/16 P. v. Gomez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B268916

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA090941) v.

JUAN FRANCISCO GOMEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Affirmed. Marvin E. Vallejo for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent. _______________________

Juan Francisco Gomez appeals from an order denying his motion pursuant to Penal Code section 17, subdivision (b)(3),1 to reduce his 2005 felony conviction for assault by means of force likely to produce great bodily injury (former § 245, subd. (a)(1)) to a misdemeanor. We hold the appellate record does not show that the trial court abused its discretion, and accordingly affirm the order. Gomez was charged in 2005 with assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in former section 245, subdivision (a)(1). He was charged in a second count with misdemeanor vandalism, a violation of section 594, subdivision (a). Prior to a felony preliminary hearing, Gomez entered a plea of no contest to felony assault by means of force likely to produce great bodily injury. 2 The vandalism charge was dismissed. Gomez was placed on felony probation for three years, conditioned on service of 90 days in county jail and various additional terms and conditions. On November 6, 2015, Gomez filed a motion to reduce the conviction to a misdemeanor under section 17, subdivision (b)(3). According to Gomez’s declaration in support of the motion, he is not a United States citizen but is a lawful permanent resident. His country of origin is El Salvador. He stated that in the underlying case he had “an altercation” with the complaining witness, in which he struck the victim’s vehicle several times with a metal pipe, but he did not direct his attack at the victim personally and the victim was not injured. He entered his no contest plea in return for a grant of probation. Gomez successfully completed probation. In 2014, Gomez was detained by Customs and Border Protection at Los Angeles International Airport as he returned from a trip to El Salvador. He was denied admission, but allowed to remain in the United States while subject to removal proceedings. If his felony were reduced to a misdemeanor he would be able to apply for a waiver of inadmissibility.