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People v. Gomez

California Court of Appeals, Second District, First Division
Feb 24, 2011
No. B222021 (Cal. Ct. App. Feb. 24, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County. Sam Ohta, Judge, Los Angeles County Super. Ct. No. BA333954

Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.


MALLANO, P. J.

Defendant Jesus Garcia Gomez appeals from the judgment entered following a jury trial in which he was convicted of first degree murder, attempted murder, and three counts of assault with a firearm, with great bodily injury and firearm-use findings. Defendant contends that insufficient evidence supports his convictions and that his attorney provided ineffective assistance by failing to request CALCRIM No. 522. We affirm.

BACKGROUND

Sandra Ramirez testified that she went to an unlicensed club known as a “casita” at 229 West Gage Avenue near Broadway in Los Angeles about 4:30 p.m. on December 9, 2007. (All further date references pertain to the 2007 unless otherwise noted.) There were about 30 people there. The back door was the only entry point. Ramirez walked through the living room to get to the bathroom, where she intended to use some methamphetamine. In the living room there were four to six tables and ten to fifteen chairs. People were playing cards. Ramirez saw defendant and his friend Raymundo Garcia, both of whom she knew from other casitas, seated at a table near the fireplace playing cards with several other men, including Paulino Juarez and Armando Guerra. Ramirez did not know Juarez and Guerra, but she identified them from photographs shown to her by detectives and at trial.

Ramirez left for 15 to 20 minutes and returned to the casita on Gage Avenue a little after 5:00 p.m. When she entered the living room, she saw Juarez and Guerra sitting at a table in front of the fireplace. Defendant and Garcia were standing across the room. Other people were also in the room. Garcia seemed to be upset, and Ramirez heard Garcia tell defendant, in Spanish, “He’s fucking around.” Ramirez assumed Garcia meant that someone had cheated during the card game.

Garcia walked over to the table where Juarez and Guerra were seated and either punched or pushed one of them. A brawl ensued, with four or five people fighting. Defendant was not involved in the brawl. Ramirez saw Garcia punch someone in the face. At trial, she could not remember whether Garcia punched Guerra or Juarez, but she thought it was Guerra. Detective Julio Benavides testified that Ramirez told him that Garcia punched Guerra. Ramirez saw defendant move from one place in the room to another. (During her testimony, Ramirez used a laser pointer to show defendant’s change of position on a diagram of the house, but the prosecutor’s description for the record was ambiguous.) Less than one minute after Garcia’s initial attack on Guerra, Ramirez saw a gun in defendant’s hand and saw him fire two or three times toward Juarez and Guerra. Ramirez did not see anyone struck by the gunfire and did not see anyone else in the room with a gun. There were 10 to 15 people in the room, which was small, and everyone attempted to run toward the back door. Ramirez feared being shot because it seemed that defendant was firing randomly, “just shooting in the direction where he could have just hit anybody.”

When Ramirez got to the back door, she saw defendant standing outside the door, shooting toward a pool table in the backyard. Ramirez heard two or three shots but did not see anyone in the area into which defendant was firing. A few days after the shooting, Ramirez saw defendant at a friend’s house and spoke to him.

Ramirez testified that she had not actually used any methamphetamine at the casita, but she had used some three days before the date of the crimes. She admitted that she testified at the preliminary hearing that she was under the influence of drugs at the time of the shooting. In addition, she admitted that when defense counsel asked her at the preliminary hearing what drugs she had consumed “that day” so as to be under the influence, she responded “methamphetamine.” At trial, she explained that she was referring to her methamphetamine use three days before the shooting, and she believed that the drug was still in her system three days later. She further admitted she had prior convictions for burglary and receiving stolen property, and that she was arrested in November of 2008 for being under the influence of methamphetamine.

Los Angeles Police Department (LAPD) Officer David Gamero testified that about 5:00 p.m. on December 9 he responded to a report of shots fired near the intersection of Broadway and Gage Avenue. He found no evidence supporting the report and left the area. About 15 to 20 minutes later, he heard a report of a shooting victim at a gasoline station at Broadway and Washington, which Gamero estimated was about 50 blocks from the intersection of Broadway and Gage Avenue. There, he saw paramedics working on a man whose hand was wrapped in a bloody bandage. The man appeared to be in pain. The man was taken away in an ambulance about 5:20 p.m., and Gamero believed the man would be taken to California Hospital. Based upon the injured man’s statements, Gamero investigated “a location outside on the street.” Gamero did not state the man’s name in his testimony. Records from California Hospital that were admitted in evidence showed that emergency room personnel examined Garcia at 5:54 p.m. on December 9 and characterized his injury as a through-and-through gunshot wound to his left hand.

The police first learned about the crimes and the crime scene on the morning of December 10, when Detective Kelle Baitx received an anonymous phone call. The caller stated that a man had been shot at a house near Broadway and Gage Avenue and his body had been put in a car and driven away. The caller also said that people were at the house and a blue pickup truck with a chrome tool box was parked in the driveway. Baitx went to the area, saw a truck matching the caller’s description in the driveway at 229 Gage Avenue, and found three men—not including defendant—in the backyard. The house was empty, but the truck bed contained stacks of chairs and tables, along with two city trash containers. Some of the floors in the house were wet, and there was a strong odor of bleach. Baitx saw brooms, bleach, cleaning tools, a bucket in the backyard. The three men cooperated with the police investigation and were not arrested.

An LAPD criminalist collected evidence at the house on December 10. She found a bullet wedged between a wall and a board in a closet adjacent to the living room, three blood stains on a living room wall and three blood stains nearby on the floor, a blood stain in a closet near the kitchen, and a blood stain on an exterior wall at the back of the house. The parties stipulated that the blood from the living room wall and floor matched Garcia’s DNA.

Blanca Guerra, who was married to Paulino Juarez and is the sister of Armando Guerra, testified that she last saw her husband when he left with her brother Armando on the afternoon of December 9. About 8:00 p.m. that night, Armando phoned Blanca. The next day, she phoned Armando and obtained the address where her husband and Armando had gone on December 9. On December 11, Blanca went to the area of Broadway and Gage Avenue and approached Detective Julio Benavides and his partner, who were canvassing the area for witnesses. Benavides told Blanca that Paulino was dead.

Detective Benavides spoke to Garcia on December 10 and saw that his hand was bandaged. Garcia had antibiotics and pain medication with him. Benavides spoke to Guerra on December 13 and noted that he had a black eye. Benavides spoke to Ramirez on December 18, and she identified defendant as the shooter from a six-pack of photographs.

Juarez’s body was found in the trunk of a car on 18th Street on December 20. Juarez was fully clothed and had been wrapped in a blanket. His wallet, which contained cash, was in his pocket. The deputy medical examiner who conducted the autopsy on December 22 testified that Juarez died from a single gunshot wound to the chest. The absence of soot or stippling on the body and clothing indicated that the shot was fired from at least two or three feet away. The degree of decomposition was consistent with the body having been kept in a car trunk for 11 days.

Defense expert witness Dr. Mitchell Eisen testified regarding the factors pertinent to the ability to record and remember details crucial to making an accurate identification of another person.

The jury convicted defendant of the first degree murder of Juarez, the attempted murder of Guerra, and assault with a firearm on Juarez, Guerra, and Garcia. It found that defendant personally used and personally fired a gun, causing great bodily injury or death in the commission of the murder; personally used and personally fired a gun in the commission of the attempted murder; personally used a gun in the commission of the three aggravated assaults; and personally inflicted great bodily injury on Garcia.

The court sentenced defendant to prison for 79 years to life.

DISCUSSION

1. Sufficiency of evidence

Defendant contends that the evidence was insufficient to support his conviction of any of the offenses. His contention primarily focuses on identity, as he argues there was no evidence that Ramirez or anyone saw defendant shoot or shoot at any of the three victims. For essentially the same reason, he argues there was insufficient evidence of an intent to kill Guerra and insufficient evidence that the crimes pertaining to victims Guerra and Garcia were committed at all. He also argues that there was insufficient evidence of premeditation and deliberation to support a finding that the murder was first degree.

To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the convictions, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We presume the existence of every fact supporting the judgment that the jury could reasonably deduce from the evidence and make all reasonable inferences that support the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Catlin (2001) 26 Cal.4th 81, 139.)

a. Count 1: first degree murder (of Juarez)

The testimony of Ramirez, Blanca Guerra, Baitx, and the deputy medical examiner, together with reasonable inferences from their testimony, supports defendant’s first degree murder conviction. Although Ramirez did not see whether anyone was struck by defendant’s gunfire, she testified that defendant was shooting at the men she identified (by means of photographs) as Juarez and Guerra. Ramirez also testified that she did not observe anyone else shooting. Juarez was killed by a gun shot. He did not go home on the night of December 9 or thereafter, although his friend Armando Guerra made it out of the casita alive. Baitx was informed on the morning of December 10 that a man had been shot at the house on Gage and his body driven away in a car. Blanca Guerra learned from Benavides on December 11 that Juarez was dead, and the deputy medical examiner testified that on December 22, the degree of decomposition of Juarez’s body was consistent with storage in a car trunk for 11 days. Collectively, this constituted substantial evidence that defendant fatally shot Juarez on the afternoon or early evening of December 9 when he aimed his gun at Juarez and Guerra and fired repeatedly.

We further conclude that substantial evidence supports the jury’s finding of premeditation and deliberation. Premeditation requires that the act be considered beforehand. Deliberation requires careful thought and weighing of considerations for and against the act. (People v. Mayfield (1997) 14 Cal.4th 668, 767.) The extent of the reflection, not the length of time, is the true test. (Ibid.) These processes can occur very rapidly, even after an altercation is under way. (Ibid.; People v. Sanchez (1995) 12 Cal.4th 1, 34, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Three types of evidence that typically support a finding of premeditation and deliberation are planning activity, a prior relationship with the victim or conduct from which a motive could be inferred, and a manner of killing from which a preconceived plan could be inferred. (People v. Anderson (1968) 70 Cal.2d 15, 26–27.) But these categories are not prerequisites, but simply guidelines to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations, rather than an unconsidered or rash impulse. (People v. Young (2005) 34 Cal.4th 1149, 1183.)

Although it is uncertain what, if anything, Guerra or Juarez did to provoke Garcia’s ire, Garcia’s statements and attack upon Guerra indicated that he was very angry with Guerra. Less than one minute later, after defendant moved to a different position in the room, he began shooting at Juarez and Guerra, supporting a reasonable inference that defendant was also angry at, or perhaps sought revenge against, one or both of his targets. The prosecutor relied upon a transferred intent theory, suggesting that defendant was angry at and intended to shoot Guerra, but instead shot Juarez. Either way, the record supports an inference that defendant’s motive for shooting was anger, perhaps stemming from the prior card game. Evidence of defendant’s planning activity in this case includes carrying a loaded gun with him to the casita and walking from one position in the room to another before beginning to shoot. It is significant that defendant did not join in the brawl Garcia started, but watched from across the room, drew his gun, then moved into location before he began shooting at the men. Under the circumstances, the jury could find beyond a reasonable doubt that defendant did not act rashly, but instead acted after reflecting upon and weighing the considerations.

b. Count 2: Assault with a firearm (on Juarez)

Defendant’s challenge to the sufficiency of evidence regarding the assault with a firearm count pertaining to Juarez appears to be limited to identity, as he makes no specific argument regarding any element of this offense. For the reasons stated with respect to the murder charge, substantial evidence supported the jury’s finding that defendant fatally shot Juarez on December 9.

c. Count 3: Attempted murder (of Guerra)

Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623.)

With respect to the attempted murder of Guerra, defendant challenges the sufficiency of evidence of his identity as the perpetrator and his intent to kill.

Ramirez’s testimony that defendant fired a gun at both Guerra and Juarez provided substantial evidence regarding identity.

Substantial evidence also established defendant’s intent to kill, in that he chose a firing position, then stood a short distance away across a small room and fired multiple gunshots toward Guerra and Juarez, who were next to one another. “‘The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill....”’” (People v. Smith (2005) 37 Cal.4th 733, 741.) In People v. Bland (2002) 28 Cal.4th 313, the Supreme Court held that, although the doctrine of transferred intent does not apply to attempted murder, a defendant who performs an act such as shooting at a group of people that includes his primary target or placing a bomb on board a plane on which his primary target is flying may be found to have concurrently intended to kill his primary target and everyone else within the “‘kill zone.’” (Id. at pp. 329–330.) The concurrent intent doctrine applies “‘[w]here the means employed to commit the crime against a primary victim create a zone of harm around that victim, ’” such that “‘the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.’” (Id. at p. 330.) It is a factual determination for the jury, which need not be instructed on concurrent intent or the kill zone concept. (Id. at p. 331, fn. 6.) Here, the evidence showed at least a concurrent intent to kill Guerra.

d. Count 4: Assault with a firearm (on Guerra)

Defendant’s challenge to the sufficiency of evidence regarding the assault with a firearm count pertaining to Guerra appears to be limited to identity. For the reasons stated with respect to the other charges already addressed, substantial evidence supported the jury’s finding that defendant fired a gun at Guerra on December 9.

e. Count 5: Assault with a firearm (on Garcia)

Defendant’s challenge to the sufficiency of evidence regarding the assault with a firearm count pertaining to Garcia appears to be based on identity and intent. Defendant argues that he and Garcia were friends and if Garcia’s hand was injured, it was either an accident or caused by Garcia punching Guerra in the face.

As addressed with respect to the other charges, substantial evidence established that defendant fired a gun at Garcia on December 9.

“[A] specific intent to injure is not an element of assault....” (People v. Williams (2001) 26 Cal.4th 779, 786.) Assault is instead a general intent crime. (Id. at p. 784.) It requires “an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Id. at p. 790.) The trier of fact may consider the actual completion of a battery when determining whether the defendant committed an assault. (People v. Colantuono (1994) 7 Cal.4th 206, 218, fn. 9.)

Defendant’s intentional act of firing the gun, repeatedly, from close range at a group of people inside the small living room established the requisite intent to support his conviction for assault with a firearm on Garcia. The through-and-through gunshot wound to Garcia’s hand established that Garcia was wounded by gunfire, not in a fistfight, and that Garcia was in the area into which defendant fired the gun. Substantial evidence thus supports defendant’s conviction.

2. Ineffective assistance of counsel: failure to request CALCRIM No. 522

Defendant contends that the jury should have been instructed with CALCRIM No. 522, which, in pertinent part, states, “Provocation may reduce a murder from first degree to second degree. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.”

Defendant recognizes that CALCRIM No. 522 is a pinpoint instruction and need not be given sua sponte. (People v. Rogers (2006) 39 Cal.4th 826, 880 [addressing equivalent instruction, CALJIC No. 8.73]; People v. Hernandez (2010) 183 Cal.App.4th 1327, 1333 [CALCRIM No. 522].) Accordingly, he contends that his attorney’s failure to request the instruction constituted ineffective assistance of counsel.

A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, the defendant would have obtained a more favorable result. (In re Jones (1996) 13 Cal.4th 552, 561.) The defendant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy. (Ibid.) In order to prevail on an ineffective assistance of counsel claim on appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Majors (1998) 18 Cal.4th 385, 403.)

To justify a second degree murder instruction, there must be evidence of not just any kind of provocation, but of “evidence from which the jury could find that the defendant’s decision to kill was a direct and immediate response to the provocation such that the defendant acted without premeditation and deliberation.” (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705.)

Although there is no evidence that Guerra or Juarez actually cheated or actually did anything to provoke defendant, the standard for provocation negating premeditation and deliberation is a subjective one. (People v. Padilla (2002) 103 Cal.App.4th 675, 678.) Even a hallucination may be sufficient to constitute provocation. (Id. at p. 679.) Thus, a belief by defendant that the intended target had cheated him at cards might have been found to negate premeditation and deliberation, leading to a verdict of second degree murder.

Nothing in the record showed that defendant fired his gun as a result of provocation. There was no evidence of defendant’s subjective state of mind or of his demeanor while shooting. The jury would have been required to speculate regarding defendant’s state of mind in order to find provocation sufficient to negate premeditation and deliberation. It was Garcia who appeared to be upset and made the statement, “He’s fucking around.” Notably, defendant did not shoot immediately after Garcia’s comment. Rather, Garcia spoke, then attacked Guerra. Defendant waited a bit, moved to a different position in the room, and then began firing. Although the entire time interval may not have been very long, defendant did not shoot as an immediate response to the purported provocation. His intervening conduct and delay do not support an inference that he was acting under provocation.

Defendant made no effort in his appellate briefs to demonstrate prejudice. The absence of evidence regarding his state of mind leads us to conclude that defendant would not have obtained a more favorable result if the jury had been instructed with CALCRIM No. 522. Accordingly, we reject defendant’s ineffective assistance of counsel claim.

3. Correction of abstract of judgment

We note that the reporter’s transcript, minute order, and abstract of judgment show that the court imposed the firearm-use enhancement in count 1 under Penal Code section 12022.53, subdivisions (b) through (d). Although allegations were found true under each of these subdivisions, the trial court imposed the subdivision (d) enhancement, only. Accordingly, we direct the trial court to issue an amended abstract of judgment and a nunc pro tunc minute order reflecting that the enhancement was imposed under Penal Code section 12022.53, subdivision (d), only.

DISPOSITION

The judgment is affirmed. Unless it has already done so, the trial court is directed to issue an amended abstract of judgment and a nunc pro tunc minute order reflecting that the firearm-use enhancement for count 1 was imposed under Penal Code section 12022.53, subdivision (d), only.

We concur: CHANEY, J., JOHNSON, J.


Summaries of

People v. Gomez

California Court of Appeals, Second District, First Division
Feb 24, 2011
No. B222021 (Cal. Ct. App. Feb. 24, 2011)
Case details for

People v. Gomez

Case Details

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

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

Date published: Feb 24, 2011

Citations

No. B222021 (Cal. Ct. App. Feb. 24, 2011)