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People v. Gomez

California Court of Appeals, Second District, Sixth Division
Apr 14, 2008
No. B201142 (Cal. Ct. App. Apr. 14, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DAVID GOMEZ, Defendant and Appellant. B201142 California Court of Appeal, Second District, Sixth Division April 14, 2008

NOT TO BE PUBLISHED

Superior Court County Super. Ct. No. BA292202, of Los Angeles, Curtis B. Rappe, Judge

California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Maria Morrison, Staff Attorney, for Appellant.

No appearance for Respondent.

YEGAN, Acting P.J.

David Gomez appeals from a judgment entered after a jury convicted him of first degree murder (Pen. Code, §§ 187, subd. (a), 189), with special findings that a principal personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (d) & (e)(1)), and a special finding that the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)). Appellant admitted a prior strike conviction (§§ 667, subds. (b) – (i); 1170.12, subds. (a) – (d)) and was sentenced to 75 years to life state prison. The trial court ordered him to pay a $5,000 restitution fine (§ 1202.4, subd. (b)), a $5,000 parole revocation fine (§ 1202.45), $6,080 victim restitution (§ 1202.4, subd. (f)), and a $20 court security fee (§ 1465.8. subd. (a)(1))).

All statutory references are to the Penal Code.

Facts and Procedural History

On October 21, 2005, appellant and Jesse Valenzuela, active members of the Geraghty Loma gang, waited outside Our Lady of Victory School in Los Angeles for Rubin Ruiz. Ruiz and four classmates, Viridiana Hernandez, Alejandro Hernandez, Aaron Lopez, and Freddie Palacios, left the school parking lot in a Ford Explorer.

Appellant drove a customized gray Honda and followed the Ford Explorer several blocks. Ruiz saw the Honda and shouted, "It's that fool from Geraghty." Valenzuela, who was seated in the back seat of the Honda, pointed a rifle at the Ford Explorer and fired two shots, killing Ruiz.

Alejando Hernandez identified appellant as the driver of the Honda. A second passenger in the Ruiz vehicle, Freddy Palacios, identified appellant as the driver and Valenzuela as the shooter. Viridiana Hernandez also identified appellant but said he was wearing a black baseball cap.

Maria Hernandez, who was waiting in front of the school for her son, saw appellant and a second man seated in the Honda across from the school. Maria Hernandez identified a photo of appellant and testified that appellant was the driver.

Ruiz was a Ford Maravilla gang member and had planned to fight Jamie Cano at school that morning. Cano, who belonged to the Geraghty Lomas gang, told fellow gang members about the confrontation, and described Ruiz, the Ford Explorer that Ruiz drove, and the time Ruiz got out of school.

Police linked appellant to the gray Honda and arrested him, finding a cell phone on his person. Phone records indicated that the cell phone was used to make calls near the shooting about the same time as the shooting.

A gang expert, Los Angeles County Sheriff's Detective Eduardo, testified that the Geraghty Loma gang had ties with Mexican Mafia, engaged in organized gang activity, and that the shooting was to benefit the gang.

We appointed counsel to represent appellant in this appeal. After reviewing the record, counsel filed an opening brief requesting this court to independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436. On March 7, 2008, we advised appellant that he had 30 days in which to submit a written brief or letter stating any contentions or arguments he wished us to consider.

On March 24, 2008, appellant submitted a letter brief claiming that the prosecution witnesses were not credible, that the conviction was not supported by the evidence, and that the cell phone and a redacted taped statement by Valenzuela should not have been received into evidence. These contentions are not supported by the record. (See e.g., People v. Kelly (2006) 40 Cal.4th 106, 125-126.)

We have reviewed the entire record and are satisfied that appellant's attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441; People v. Kelly, supra, 40 Cal.4th at p. 126.)

The judgment is affirmed.

We concur: COFFEE, J., PERREN, J.


Summaries of

People v. Gomez

California Court of Appeals, Second District, Sixth Division
Apr 14, 2008
No. B201142 (Cal. Ct. App. Apr. 14, 2008)
Case details for

People v. Gomez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID GOMEZ, Defendant and…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Apr 14, 2008

Citations

No. B201142 (Cal. Ct. App. Apr. 14, 2008)