2021 UT App 135
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BERNARDO ANTONIO GONZALEZ,
Appellant.
Opinion
No. 20190901-CA
Filed December 9, 2021
Third District Court, Salt Lake Department
The Honorable Linda M. Jones
No. 191901679
Emily Adams, Freyja Johnson, and Cherise M.
Bacalski, Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 Following Bernardo Antonio Gonzalez’s conviction for
domestic violence criminal trespass, Nina 1 obtained a protective
order against him. So when she saw Gonzalez following her home
from work and when he ultimately spoke with her not far from
her home, she reported it to police. The State then charged
Gonzalez with violating the protective order. At trial, Gonzalez’s
counsel (Counsel) successfully obtained a ruling from the court
preventing the admission of any evidence regarding the earlier
domestic violence charge, but Counsel then stipulated to the entry
1. A pseudonym.
State v. Gonzalez
of an exhibit referencing that conviction. Gonzalez now appeals,
arguing that Counsel rendered ineffective assistance in failing to
properly redact the exhibit and thereby allowing the jury to learn
about the earlier conviction. We affirm.
BACKGROUND 2
¶2 At the sentencing hearing for Gonzalez’s conviction for
domestic violence criminal trespass, the district court in that case
imposed a five-year protective order that prohibited Gonzalez
from contacting, harassing, or otherwise communicating either
directly or indirectly with Nina or her daughter. In no uncertain
terms the court instructed, “You are to have no contact with
[Nina]. That means no [indirect] or direct contact. You may not
use social media to contact her. You may not call her. You may
not text her.” And regarding Nina’s daughter the court instructed,
“[Y]ou are to have no direct or indirect contact with her. That
means no contact through [social media], no telephoning. If you
see her on the street, you turn and walk the other way.” The court
emphasized to Gonzalez, “That will be very important, very
important that you follow those . . . protective orders.”
¶3 But only a month and a half later, as Nina waited for a bus
after work, she saw Gonzalez parked at her bus stop. Then, once
seated on the bus, Nina “got scared” and called her daughter to
tell her that she had seen Gonzalez. At her second bus stop, Nina
saw Gonzalez again, and Nina’s daughter, having stayed on the
phone with her mother, called the police. In an attempt to prevent
Gonzalez from discovering where she lived, Nina got off the bus
at a different stop from usual, but when she saw Gonzalez driving
2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” Layton
City v. Carr, 2014 UT App 227, ¶ 2 n.2,
336 P.3d 587 (cleaned up).
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State v. Gonzalez
down the street toward her residence, she diverted to a nearby
church. Although she waited at the church for forty-five minutes,
when she finally walked home, Gonzalez was parked only 240
feet away from her residence. Gonzalez then spoke to Nina from
his vehicle. “[I]n shock,” Nina could not even remember what
Gonzalez said, and when she “got scared and yelled out his
name,” Gonzalez quickly drove away. Nina then called 911
herself, but by the time police arrived Gonzalez was nowhere to
be found.
¶4 The State located and arrested Gonzalez, charging him
with violation of a protective order, and before trial, Gonzalez
asked the court to exclude any evidence regarding the earlier
domestic violence conviction. The trial court granted the motion.
But despite this, Counsel stipulated to the admission of an exhibit
that contained the transcript from the sentencing hearing at which
the protective order was issued. And, although heavily redacted,
the transcript contained many extant references to “sentencing,”
including:
So we’re serving sentencing protective orders on
you. They are part of the sentence in the original
case, the case that—why you are here today. So the
sentencing protective order requires that you have
no contact either direct or indirect, with the
individuals listed on those sentencing protective
orders. . . . This is typical in a domestic violence case
as part of the sentencing.
¶5 In the end, despite Gonzalez’s testimony that he never
intended to violate the protective order, that his proximity to
Nina’s residence was inadvertent, and that he was in the area only
“looking for an apartment,” the jury found Gonzalez guilty.
Gonzalez appeals.
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State v. Gonzalez
ISSUE AND STANDARD OF REVIEW
¶6 Gonzalez contends only that Counsel rendered
constitutionally ineffective assistance in stipulating to the entry of
the sentencing hearing transcript without ensuring that the
references to his earlier conviction had been redacted. Specifically,
Gonzalez asserts that Counsel rendered ineffective assistance in
failing to redact three phrases found in a single paragraph of the
transcript: (1) “part of the sentence in the original case, the case
that—why you are here today,” (2) “sentencing protective order,”
and (3) “[t]his is typical in a domestic violence case as part of the
sentencing.” 3 “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of law.”
State v. Beckering, 2015 UT App 53, ¶ 18,
346 P.3d 672 (cleaned up).
ANALYSIS
¶7 To prevail on an ineffective assistance of counsel claim,
Gonzalez must establish both that Counsel’s “performance was
deficient in that it fell below an objective standard of
reasonableness and [that] . . . the deficient performance prejudiced
the defense.” See State v. Scott, 2020 UT 13, ¶ 28,
462 P.3d 350
(cleaned up). However, “[b]ecause failure to establish either
prong of the test is fatal to an ineffective assistance of counsel
claim, we are free to address [Gonzalez’s] claims under either
prong.” See Honie v. State,
2014 UT 19, ¶ 31,
342 P.3d 182. And “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of
3. Although Gonzalez’s brief contends that Counsel rendered
ineffective assistance in stipulating to the entry of the sentencing
hearing transcript without ensuring that “all references” to his
earlier conviction had been redacted, his brief focuses on only the
three phrases recited above and we limit our focus accordingly.
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State v. Gonzalez
lack of sufficient prejudice . . . that course should be followed.”
Strickland v. Washington, 466 U.S. 668, 697 (1984). In this case, we
assume without deciding that Counsel rendered deficient
performance by failing to fully ensure the transcript was
appropriately redacted, but Gonzalez’s ineffective assistance of
counsel claim still fails because he cannot show that he was
prejudiced by Counsel’s performance.
¶8 To establish prejudice, a “defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694. That is, the defendant’s showing must “undermine [our]
confidence in the outcome.”
Id. And while we acknowledge that
“a verdict or conclusion only weakly supported by the record is
more likely to have been affected by errors than one with
overwhelming record support,”
id. at 696, the impact of the
alleged error must, nevertheless, “be a demonstrable reality,” see
State v. Munguia,
2011 UT 5, ¶ 30,
253 P.3d 1082 (cleaned up). Here,
Gonzalez has not shown that his proposed redactions, even if they
had been made to the transcript, would have changed the
evidentiary picture to the point that the outcome would have
differed.
¶9 First, while Gonzalez initially argues that “[t]rial counsel
performed deficiently when he did not ensure that the transcript
. . . was fully redacted to exclude any reference to [Gonzalez’s]
domestic violence case,” the remainder of his argument narrows
to only one paragraph in the transcript and focuses on only three
specific phrases: (1) “part of the sentence in the original case, the
case that—why you are here today,” (2) “sentencing protective
order,” and (3) “[t]his is typical in a domestic violence case as part
of the sentencing.” From “reading the transcript,” he asserts, “the
jury knew that [he] had been convicted in a domestic violence
case, and as a result of that conviction, the court had issued a
protective order against him in favor of [Nina].” However, our
review of the record shows that the transcript contained many
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State v. Gonzalez
more references to “sentencing” than the three phrases with
which Gonzalez takes issue. Indeed, apart from the phrases
Gonzalez contests, our review discovered language such as “State
versus Bernard Gonzalez,” “sentencing protective order(s)”
(numerous times), “you will need to follow the sentencing
protective orders” (multiple times), and “[t]hat will be very
important, very important that you follow those sentencing
protective orders.” Yet, in his brief, Gonzalez takes no issue with
these other numerous references to sentencing or any other
language that could have clued the jury into the fact that he had
previously faced criminal charges that led to the protective order
in the first place. Thus, even if the phrases Gonzalez alleges
Counsel should have redacted were actually redacted, many
other statements remained that indicated that the protective order
resulted from a sentencing hearing in a criminal case.
¶10 Second, even without the transcript, the jury participated
in a trial in which Gonzalez was charged with violating a
protective order. That fact alone would have led the jury to
reasonably infer that a court of law found it necessary to enter an
order prohibiting any contact between Gonzalez and Nina or her
daughter based on a history of some kind of substantial conflict
between Gonzalez and Nina. See State v. Aziakanou, 2021 UT 57,
¶ 65 (“A jury may rely on all reasonable inferences that can be
drawn from the evidence at trial.” (cleaned up)); cf. State v.
Ashcraft,
2015 UT 5, ¶ 37,
349 P.3d 664 (confirming that the jury
may use “common-sense” and make “reasonable inferences”).
¶11 And third, although Gonzalez also argues that his trial
became a “credibility contest,” he does little to connect this
assertion to the language he disputes. Gonzalez does state that
“the jury’s assessment of [his] credibility was harmed when it
improperly learned that [he] had a prior domestic violence
conviction involving [Nina]” and that based on the domestic
violence conviction, “the jury could have inferred that . . . there
was a greater likelihood that he acted poorly against [Nina] again
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State v. Gonzalez
by intentionally or knowingly violating the protective order.”
Based on this he concludes that “the jury’s assessment of [his]
credibility declined.” While we appreciate that the jury’s
knowledge of a defendant’s history of domestic violence can
undermine the defendant’s credibility, see State v. Labrum, 2014 UT
App 5, ¶ 36,
318 P.3d 1151, Gonzalez has not explained and we do
not see how the statements with which Gonzalez takes issue
would have undermined his credibility any more than the
inferences the jurors likely made (or at least could have
reasonably made) by virtue of the fact that they participated in a
trial for violation of a protective order. Accordingly, we reject this
argument.
¶12 In sum, the totality of the circumstances before us do not
persuade us that the missed redactions Gonzalez identifies
prejudiced him such that there is a reasonable probability that the
outcome of his case would have differed. As a result, Gonzalez
does not meet his burden to show ineffective assistance of
counsel.
CONCLUSION
¶13 Having fallen short in showing that Counsel’s alleged
deficient performance prejudiced his case, Gonzalez has not
established ineffective assistance of counsel. Accordingly, we
affirm.
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