People v. Vasquez CA6

Filed 5/15/23 P. v. Vasquez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H049578 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1923620)

v.

SALVADOR VASQUEZ,

Defendant and Appellant.

Defendant Salvador Vasquez was sentenced to 12 years in prison after he was found guilty of a series of robberies. Defendant contends on appeal that his trial counsel provided ineffective assistance by failing to seek mental health diversion on his behalf, and that the trial court improperly admitted the audio recording of a 911 call as evidence at his trial. Finding neither deficient performance by trial counsel on this record nor an abuse of discretion by the trial court, we will affirm the judgment. I. TRIAL COURT PROCEEDINGS Defendant pleaded no contest before trial to one count of possessing a controlled substance while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a), count 10) and one count of possessing a firearm as a felon (Pen. Code, § 29800, subd. (a)(1), count 11). A jury then found defendant guilty of nine counts of second degree robbery (Pen. Code, § 212.5, subd. (c), counts 1 through 9). The jury also found that he personally used a firearm in counts 2, 3, 4, 5, 8, and 9. (Pen. Code, § 12022.53, subd. (b).) The trial court sentenced appellant to concurrent two-year prison terms on the

nine robbery counts, plus 10 years for the firearm enhancement on count 2, for a total prison term of 12 years. The trial court struck the firearm enhancements on counts 3, 4, 5, 8, and 9, and sentenced defendant to 748 days jail on the admitted counts 10 and 11 which were deemed served. The challenged 911 audio recording was introduced in connection with count 2, which involved the robbery of a Chevron gas station. In the 911 call made some two to four minutes after the robbery, a Chevron employee reported that the robber had been carrying a bag and had opened the bag to reveal a handgun inside. The employee did not testify at trial, but the audio recording of the call was admitted into evidence over defendant’s objection. Other evidence, including descriptions of surveillance video from both inside and outside the gas station, established how police identified defendant as the robber. In a post-trial interview, defendant told a probation officer that he had been diagnosed with bipolar disorder, ADHD, depression and PTSD and that he was taking several medications. The probation officer acknowledged defendant’s “apparent mental health disorders and addiction” in his report, but expressed doubt that those issues were the “sole motivation” for defendant’s “string of violent conduct.” Defense counsel submitted a sentencing memorandum requesting probation based on defendant’s “mental health and substance abuse issues.” The trial court denied probation, but noted defendant’s “documented history of mental health issues as well as substance abuse issues” as a mitigating factor in imposing sentence. II. DISCUSSION A. PERFORMANCE OF TRIAL COUNSEL To establish ineffectiveness of trial counsel in violation of a defendant’s right to counsel under the Sixth Amendment to the United States Constitution, the defendant must show both that counsel’s performance was deficient and that he was prejudiced by the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216–217.) Deficient 2