People v. Gough CA4/1

California Court of Appeal · D065342 · 2014-11-10 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. ECR12100
Trial judge: David J. Danielsen
Outcome: affirmed — Affirmed.
Area: criminal
Panel: McINTYRE (author), Alex C. McDonald, Richard D. Huffman, Sr.

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:30Z · confidence high

The trial court denied Gough's petition for resentencing under Penal Code section 1170.126, finding him statutorily ineligible. The Court of Appeal affirmed the order, finding no reasonably arguable errors on appeal.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1170.126 “The trial court found him statutorily ineligible and denied the petition.”	unclear	not reached	unsure The opinion does not explicitly state the standard of review applied to the denial of the resentencing petition. The court notes that appointed counsel raised the issue as 'possible, but not arguable' and concludes that a review of the record disclosed no reasonably arguable appellate issues, effectively affirming the trial court's determination without detailed analysis of the statutory eligibility criteria.
Counting of four prior strikes as separate strikes “These circumstances resulted in four separate strikes. (People v. Vargas, supra, 59 Cal.4th at pp. 638-639.)”	de novo	correct	agree with court The court applied the rule from People v. Vargas that separate acts constitute separate strikes. It distinguished the current case from Vargas by noting that the four robberies involved different victims and locations (three in a motel, one in a home), thus constituting four separate acts rather than a single continuous act.
Claim of ineffective assistance of counsel regarding failure to object to prosecutor interruptions “Gough has not shown that trial counsel's failure to interpose further objections prejudiced Gough in any way.”	de novo	correct	agree with court The court reviewed the record and found that the number of interruptions was far fewer than claimed, and that the court or prosecutor often allowed the witness to complete answers or sustained objections. The court concluded that Gough failed to meet the prejudice prong of the Strickland test.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by appellate counsel when no arguable issues are presented.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to identify potentially arguable issues in a no-merit brief.
relied: People v. Vargas (2014) 59 Cal.4th 635 — Establishes the standard for determining whether multiple prior convictions arise from the same act or course of conduct for purposes of the Three Strikes law.
relied: Strickland v. Washington (1984) 466 U.S. 668 — Sets the two-prong test for ineffective assistance of counsel: deficient performance and prejudice.
relied: People v. Roberts (1963) 213 Cal.App.2d 387 — Limits the review of ineffective assistance of counsel claims to the record on appeal.

The appellate opinion: sound — The opinion is procedurally sound as it follows the Wende/Anders protocol for no-merit appeals. It correctly applies the Vargas standard to distinguish the facts of the prior strikes and properly applies the Strickland prejudice prong to the ineffective assistance claim based on the record review.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The trial court denied Robert Gough's 2013 petition for resentencing under Penal Code section 1170.126, finding him statutorily ineligible because his 1996 third-strike commitment offenses were exhibiting a deadly weapon with intent to resist arrest (§ 417.8) and resisting an executive officer (§ 69) committed while he held a nine-inch steak knife. On appeal, appointed counsel filed a Wende brief, Gough filed a supplemental brief attacking his 1996 conviction, his trial counsel, and the counting of his strikes, and the Court of Appeal rejected each contention and affirmed the order.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1170.126 on the ground that Gough is statutorily ineligible “The trial court found him statutorily ineligible and denied the petition.”	unclear	correct	agree with court The opinion never states the basis for ineligibility, but the facts it recites show Gough was armed with a deadly weapon (a nine-inch steak knife) during the commission of the current offenses, which is a disqualifying factor under sections 667(e)(2)(C)(iii) and 1170.12(c)(2)(C)(iii), incorporated by section 1170.126(e)(2). On this record the result is correct even though the court's reasoning is unstated; eligibility is a legal question on undisputed facts, so counsel's abuse-of-discretion framing is imprecise.
Rejection of contention that two (or all) of Gough's four prior strikes should be counted as a single strike under People v. Vargas “These circumstances resulted in four separate strikes.”	de novo	correct	agree with court Vargas held only that two prior convictions arising from a single act against a single victim must be treated as one strike. Gough's four robberies involved four separate victims at two locations, so Vargas by its own terms does not apply, and the court correctly cited Vargas for the distinction.
Refusal to consider sufficiency-of-evidence and due process challenges to the underlying 1996 conviction “Gough did not raise these arguments in the appeal from his conviction and has accordingly forfeited the right to do so.”	de novo	correct	agree with court The 1996 judgment was affirmed in 1998 and is long final; an appeal from a postjudgment order denying a section 1170.126 petition cannot be used to relitigate the validity of the original conviction. The court's 'forfeiture' label is a slightly loose description of what is really a cognizability limit, but the result is plainly correct.
Rejection of ineffective assistance of trial counsel claims (failure to respond to alleged witness intimidation; failure to object to prosecutor's interruptions of a defense witness) “Gough has not shown that trial counsel's failure to interpose further objections prejudiced Gough in any way.”	mixed	correct	agree with court These claims also attack the final 1996 judgment and are not properly before the court on appeal from the resentencing order, but the court addressed them on the merits anyway and applied Strickland correctly: the record showed the trial court found no intimidation after hearing the exchange, and the court's count of interruptions and sustained objections shows no prejudice from the absence of additional objections. Limiting review to the appellate record (Roberts) is standard.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal lacks merit may file a brief identifying anything in the record that might arguably support the appeal, and the court then reviews the record.
relied: People v. Vargas (2014) 59 Cal.4th 635 — Two prior convictions arising from a single act against a single victim must be treated as one strike; multiple convictions arising from separate acts or multiple victims may each count as a strike.
relied: Strickland v. Washington (1984) 466 U.S. 668 — Ineffective assistance of counsel requires showing both deficient performance below an objective standard of reasonableness and resulting prejudice.
relied: People v. Roberts (1963) 213 Cal.App.2d 387 — On direct appeal, review of a claim of ineffective assistance is confined to matters appearing in the appellate record.

The appellate opinion: sound with gaps — The court reaches the right result on every point Gough raised, and its application of Vargas and Strickland is accurate on the facts stated in the record. It never identifies the statutory basis for Gough's ineligibility (apparently that he was armed with a deadly weapon during the commission of the current offense), and it does not address whether Wende review even applies to appeals from postjudgment section 1170.126 orders (see People v. Serrano (2012) 211 Cal.App.4th 496, which is not binding on this division), leaving the central ruling affirmed without explanation.

How this analysis was made · dispute it

Opinion

Filed 11/10/14 P. v. Gough CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D065342

Plaintiff and Respondent, v. (Super. Ct. No. ECR12100)

ROBERT GOUGH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

In 1996, a jury found Robert Gough guilty of exhibiting a deadly weapon with the intent to resist arrest (Pen. Code, § 417.8, subd. (a)(1); all further statutory references are to this code) and resisting an executive officer by use of force or violence (§ 69). In a bifurcated proceeding, the jury found true allegations of four strikes (§ 667 subds. (b)-(i))

and three prior prison terms (§ 667.5, subd. (b)). The court stayed sentence (§ 654) for resisting an executive officer and sentenced Gough to prison for 28 years to life: 25 years to life for exhibiting a deadly weapon and one year for each prison prior. In 1998, this court affirmed the judgment. In 2013, Gough filed a petition for resentencing (§ 1170.126). The trial court found him statutorily ineligible and denied the petition.

Gough appeals. We affirm.

BACKGROUND

In September 1995, San Diego County Sheriff's detectives saw Gough walking on a median in violation of traffic laws, running across heavily travelled intersections and leaning into the driver's windows of two cars. When Gough leaned into the second car, one of the detectives saw that he was holding a shock absorber. The detective identified himself and told Gough he needed to talk to him. Gough ran away. During the ensuing chase, Gough turned, revealing a nine-inch steak knife in his hand, then continued to run, ignoring the detective's orders to stop. Other law enforcement officers joined the pursuit.

Gough then obeyed an order to drop the knife, but refused commands to get on the ground.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel 2 mentions as possible, but not arguable, issues: (1) whether the court abused its discretion by denying Gough's petition for resentencing; and (2) whether all of Gough's strikes arose from the same act so as to constitute a single strike (People v. Vargas (2014) 59 Cal.4th 635).

We granted Gough permission to file a brief on his own behalf. He has responded.

Gough contends the evidence is insufficient to support his 1996 conviction and he was denied due process because the record of one of the police detectives was not produced. Gough did not raise these arguments in the appeal from his conviction and has accordingly forfeited the right to do so.

Gough contends that trial counsel was ineffective in two respects, discussed below. To prevail on this contention, Gough must show that counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced Gough. (Strickland v. Washington (1984) 466 U.S. 668.) In reviewing this contention, we are limited to the record on appeal. (People v. Roberts (1963) 213 Cal.App.2d 387, 394.)

First, Gough argues that the prosecutor attempted to intimidate a defense witness, and when the court stated that the prosecutor was not intimidating the witness, trial counsel failed to respond. The record on appeal does not show any intimidation. Instead, the record reflects a claim by trial counsel that the witness was afraid of the prosecutor.

The court then stated that it had heard the conversation between the witness and the prosecutor and found there was no intimidation.

3 Second, Gough argues that on 28 occasions, trial counsel failed to object when the prosecutor interrupted another defense witness before that witness had completed his responses. We have reviewed the record and count far fewer interruptions than Gough claims. The record shows that approximately five times the prosecutor interrupted the witness to interpose an objection; four of the objections were sustained. Approximately four times, the prosecutor interrupted the witness to ask him to answer the question or note that the question required a "yes" or "no" response. Approximately four times, the court intervened after an interruption and allowed the witness to complete his answer. At least once, the prosecutor, on his own, allowed the witness to complete his answer. On one occasion the witness answered the question but continued talking, then the prosecutor interrupted him. On another occasion the prosecutor asked the witness, "Can I interrupt you for one second?" and the witness responded, "Yes." At one point, the prosecutor interrupted the witness and posed another question; defense counsel objected and the court sustained the objection. Gough has not shown that trial counsel's failure to interpose further objections prejudiced Gough in any way.

Finally, Gough contends two of his strikes should be counted as one because the two events occurred on the same day, one hour apart; there was one trial; the court denied his motion for separate trials; and the two strikes resulted in one prison term. This contention is not well taken. The four strikes arose from four robberies in case No. CR73208, with a conviction date of June 12, 1985. All four robberies occurred on February 24, 1985. Three of the robberies occurred in a motel room; there were three victims. The fourth robbery occurred in a home; there was one victim. These 4 circumstances resulted in four separate strikes. (People v. Vargas, supra, 59 Cal.4th at pp. 638-639.)

A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.

Gough has been competently represented by counsel on this appeal.

DISPOSITION

The order is affirmed.

MCINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

MCDONALD, J.

Cites, in this corpus

People v. Vargas S203744 · 2014-07-10
People v. Wende Crim. 20851 · 1979-10-12
People v. Roberts Crim. 1746 · 1963-02-26