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People v. Gomez2/10/2004
On July 3, 2002, an information was filed in Superior Court of Fresno County charging appellant Oscar Reynaldo Gomez with count I, felony driving under the influence (Veh.Code, § 23152, subd. (a)); count II, felony driving with a blood/alcohol level of .08 percent or higher (Veh.Code, § 23152, subd. (b)); count III, misdemeanor battery (Pen.Code, § 243, subd. (e)(1)); and count IV, misdemeanor vandalism (Pen.Code, § 594, subd. (a)). As to counts I and II, it was alleged appellant suffered three prior convictions within the meaning of Vehicle Code section 23550.5, subdivision (a)(1); suffered one prior strike conviction (Pen.Code, §§ 667, subds.(b)-(i), 1170.12); and served two prior prison terms (Pen.Code, § 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegations.
On October 3, 2002, appellant admitted the prior conviction allegations and his jury trial began. On October 8, 2002, appellant was found guilty as charged.
On November 6, 2002, the court denied probation and sentenced appellant to eight years in prison: as to count I, the upper term of three years, doubled to six years as the appropriate second strike term, with two consecutive one-year terms for the prior prison term enhancements. The court stayed the sentence imposed for count II, and imposed local time served for counts III and IV.
On November 7, 2002, appellant filed a timely notice of appeal.
FACTS
At approximately 12:31 a.m. on May 14, 2002, Fresno Police Officer Robert Boccasile received a dispatch directing him to Teresa D.'s apartment on Sierra Madre in Fresno. Teresa had called the police and reported appellant Oscar Gomez "had previously kicked her in the stomach trying to make her miscarry."
Officer Boccasile arrived at her apartment at 12:37 a.m. and Teresa appeared calm. Teresa lived with appellant and was six weeks pregnant with his child. She reported an incident that occurred on the morning of May 13, when appellant woke up and denied the baby was his child. He accused her of being a prostitute and sleeping with other men. Appellant told her that "she needed to get rid of the baby," and "[i]f she didn't get rid of it, he was going to get rid of it for her." Teresa reached for the telephone and dialed 911 for the police because appellant was "increasingly more violent ." Appellant realized she was calling the police and hung up the telephone. Teresa tried to run out of the apartment but appellant grabbed her from behind, threw her down on the ground, and again told her that she needed to get rid of the baby. When she tried to get up, appellant kicked her twice in the buttocks with his foot. Teresa gathered her belongings and left the apartment.
Teresa informed Officer Boccasile that she delayed reporting the incident because she went to her doctor that day to make sure she was okay. After thinking about the situation, she decided to report the incident because she wanted to obtain an emergency protective order (EPO) against appellant. [FN1] Teresa stated appellant drank heavily but he hadn't been drinking at the time of the incident. Boccasile realized there was a discrepancy between her dispatch call that she was kicked in the stomach, and her statement that appellant kicked her in the buttocks. Boccasile specifically asked Teresa if appellant kicked her in the stomach. Teresa replied no and said he kicked her in the buttocks. Boccasile called for a female officer to respond to the scene to examine Teresa, but the officer didn't observe any visible injuries on Teresa. Boccasile also called a judge and obtained the EPO.
FN1. An EPO is a five-day restraining order which a judge will grant
on an emergency basis, for due cause and without cost, subject to the victim obtaining a permanent restraining order.
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