Opinion
A148243
01-19-2018
THE PEOPLE, Plaintiff and Respondent, v. ELROY PEDRO GOMEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H56903)
Defendant Elroy Gomez told an acquaintance that he was obligated to kill him and proceeded to slash and stab the acquaintance with at least two different weapons. A jury convicted Gomez of attempted premeditated murder, possession of ammunition by a felon, and assault with a deadly weapon, and the trial court sentenced him to 24 years and four months to life in prison. On appeal, Gomez claims that the attempted murder conviction was supported by insufficient evidence of intent and that his trial counsel rendered ineffective assistance by failing to advise him to accept a plea offer of a nine-year sentence. We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
At around 8:00 a.m. on September 17, 2014, the victim was drinking coffee and smoking a cigarette outside his San Leandro home when Gomez approached him. He had met Gomez through a mutual friend earlier that summer, and they had visited each other's homes a couple times. The victim was six feet tall and weighed about 210 pounds, and he agreed that Gomez was "[q]uite a bit smaller."
Gomez appeared "agitated" and demanded that the victim come with him to talk to Gomez's father. The victim did not understand what Gomez was talking about and initially refused to leave. But the victim eventually agreed to go with Gomez because he did not want to disturb his neighbors or a woman who was staying at his house.
Gomez and the victim began walking to Gomez's house, where Gomez lived with at least one of his parents. During the walk, which took 20 to 30 minutes, Gomez was walking three to six feet behind the victim and "very strict about where [the victim] was going in relation to him," directing the victim to walk near the sidewalk's edge and keep his distance. During the walk, the victim's cell phone rang, and Gomez took the phone from the victim's hand. The victim perceived this action as threatening and aggressive, and he got nervous as they approached Gomez's house. The victim did not attempt to leave, however, because he wanted to fix whatever misunderstanding had led to the encounter.
When they reached Gomez's house, Gomez directed the victim into the garage, part of which was set up as Gomez's living area. Gomez locked the door and told the victim to sit on a cooler. The victim testified that Gomez said he had been hired to kill the victim by 10:00 that morning and "alluded to something [like] I talk too much" but refused to tell the victim who wanted him killed. Gomez also said that "he took an oath to do what he was . . . hired to do" and showed the victim some bullets in a nightstand drawer.
Gomez pulled out a box cutter and showed it to the victim. Gomez then took off his shirt, "scuff[ed]" the box cutter across his chest, and stated again that he was going to kill the victim. Holding the box cutter, Gomez directed the victim "to turn to the mirror and . . . 'to take it like a man.' " In the victim's words, Gomez "was going to - he wanted to [slit] my throat." The victim said he was not going to let Gomez kill him, and he refused to turn his head.
Gomez then ordered the victim into the backyard and told him to sit in a chair in the corner. The victim refused because he did not want "to be cornered and out of sight." Gomez became angry and hit the victim in the jaw. The victim saw "blood pouring down [his] chest" and Gomez said, " 'I got you' " and " 'You're going to bleed out.' " At that point, the victim noticed that Gomez was holding the box cutter, which explained the severity of the injury. Gomez threw the box cutter over the fence into a ravine.
The victim took off his shirt and tank top, tied the tank top around his neck to try to stop the bleeding, and put the shirt back on because it was cold outside. The victim was scared, and he tried to "talk [Gomez] out of this whole thing." Gomez directed the victim back to the garage, where he had the victim sit on the cooler again. Gomez told the victim that he was "going to have to do this" and the victim's "time [was] running out," and he also asked the victim whether there were any "last things [he] want[ed] or need[ed to] say or do." The victim continued to try to talk Gomez out of his plan: "I saw there was an opportunity. There was this human side of him that, one, he was going to kill me. It was absolute. And there was one that would seem to calm down because I kept trying to remind him . . . [t]hat I didn't want to fight with him."
The victim asked Gomez for a half gallon of orange juice that was nearby, and Gomez agreed he could take it. As the victim was drinking, Gomez indicated that someone else was in the house and yelled toward a room, but no one responded. The possibility that another person was present worried the victim, and he continued to "try to defuse the situation" by talking to Gomez.
On cross-examination, the victim testified that it was a half gallon of peppermint schnapps, not orange juice, and he drank about a shot.
Gomez directed the victim to the backyard again, and the two men continued to talk. Gomez seemed less threatening and upset, and the victim kept "trying to talk him down." Gomez used a garden hose to hose down the victim, and he then directed the victim into the kitchen. Inside, it seemed like Gomez was considering what the victim was saying, but Gomez repeated that he had to kill the victim. Gomez also embraced the victim and stated, " 'I love you[,] brother.' " The victim responded that he loved Gomez too.
Gomez directed the victim back to the garage for a third time, where he again told the victim to sit on the cooler. At some point earlier in the encounter Gomez had produced a knife and cut the victim in a different part of his neck. As the victim sat on the cooler for the third time, Gomez "stood right up against [the victim] pressing . . . the weight of his legs against [the victim] and he had the knife in his hands." Gomez then "struck" the victim's knee with the knife so deeply that the victim could see bone. The victim took off his shirt and used it as a tourniquet around his thigh. As the victim was taking his shirt off, Gomez "struck" the victim's hand with the knife.
Less than a minute after cutting the victim's hand, Gomez walked the victim to the front door and told the victim to leave and not " 'rat' " on him. Gomez also said, "[N]ow, you can go out there and tell everybody . . . not to mess with me," or "something to that effect." The victim began walking away, looking for help. After he reached another street, a witness noticed that he was bleeding and flagged down an Alameda County Sheriff's deputy. An ambulance took the victim to the emergency room.
Gomez's next-door neighbor testified that around 6:30 a.m. that morning, he "heard some very loud conversations" coming from Gomez's house. Less than an hour later, the neighbor heard "a loud, aggressive bang on [his] front door" and opened it to see Gomez, with whom he had never interacted. Gomez began to "scream" at him, saying, " '[Y]ou better not fuck with me. I set you straight. You have been told. You just better not fuck with me.' " When the neighbor asked Gomez what he was talking about, Gomez turned and left.
Several hours later, sometime after 10:00 a.m., the neighbor saw Gomez and a man whom he identified as the victim standing in Gomez's backyard. Gomez, who had his shirt off, "was pacing back and forth" and "kind of growling in anger." The victim appeared "to be trying to de[-]escalate and calm [Gomez] down." The neighbor watched the men for three to five minutes but did not observe any physical altercation or any weapons, and the next time he looked back they were gone.
The victim's treating surgeon testified that the victim had three lacerations on his neck, one of which was so deep that it approached the carotid artery. Another laceration had a piece of blade in it, and the surgeon opined that "it would require quite a bit of impact" to the victim's neck for part of the weapon to be left behind. The victim required sutures in his neck and staples in his knee. The victim later developed infections in his face, limiting his ability to eat, and had to return to the hospital for additional treatment and pain medication. The surgeon testified that the victim's injuries could have been life-threatening if they had been left untreated.
The police arrested Gomez, who had scratch marks on his chest and a cut on his hand that appeared to have been made by a blade. A search of his garage uncovered ammunition and "a kitchen knife or steak knife" in a dresser, another knife tucked into some clothing, and a bloody tank top. There were also blood drops on the walkway to the front door and inside the garage. The police searched the ravine, but it was dark and they were unable to recover a box cutter or any other cutting instrument.
Gomez did not present any evidence, and his defense focused on attempting to undermine the victim's credibility. Bearing on the victim's general credibility, the victim admitted that he had a previous conviction for disturbing the peace based on a domestic-violence incident and two DUI charges pending, but he also testified that he had not been promised anything by the district attorney in exchange for his testimony. The victim also admitted that he suffered from bipolar disorder and had a history of alcoholism. Bearing on the victim's credibility about the day in question, Gomez's trial counsel suggested that the victim had come to Gomez's house to get methamphetamine and the two had argued. While the victim admitted he had smoked methamphetamine before, he denied ever doing so with Gomez or visiting Gomez's house that day to obtain the drug.
The jury convicted Gomez of attempted premeditated murder and found true the allegations that during that crime Gomez personally inflicted great bodily injury on the victim and personally used a deadly and dangerous weapon. The jury also found Gomez guilty of possession of ammunition by a felon and assault with a deadly weapon and found true the allegation that Gomez personally inflicted great bodily injury on the victim during the assault.
Gomez was convicted of attempted premeditated murder under Penal Code sections 187, subdivision (a), and 664, subdivision (a). The great-bodily-injury allegation was found true under Penal Code section 12022.7, subdivision (a), and the personal-use allegation was found true under Penal Code section 12022, subdivision (b)(1). All further statutory references are to the Penal Code.
The ammunition-possession conviction was under section 30305, subdivision (a)(1), and it was based on the parties' stipulation that Gomez had previously been convicted of a felony. The assault conviction was under section 245, subdivision (a)(1), and the accompanying great-bodily-injury allegation was found true under section 12022.7, subdivision (a).
After the trial court found true the allegation that Gomez had a prior conviction for a serious felony, it sentenced him to a total term of 24 years and four months to life in prison. The sentence was comprised of a term of seven years to life, doubled because of the strike, for the attempted murder; consecutive terms of three years based on the infliction of great bodily injury and one year based on personal use of a deadly weapon during that crime; a consecutive term of eight months, doubled, for the ammunition possession; and a term of five years for the serious-felony conviction. Terms of three years, doubled, for the assault and three years for the infliction of great bodily injury during that offense were imposed and stayed.
The prior-conviction allegation was found true under section 667, subdivision (a)(1), and the trial court found that the conviction also constituted a strike under sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1). --------
II.
DISCUSSION
A. Substantial Evidence Supports the Attempted Murder Conviction.
Gomez contends that the attempted murder conviction must be reversed because there was insufficient evidence that he intended to kill the victim. We disagree.
To sustain a conviction of attempted murder, there must be substantial evidence of " 'the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' " (People v. Houston (2012) 54 Cal.4th 1186, 1217.) Only the intent element is at issue in this case. Attempted murder, unlike murder, requires a showing of express malice, a mind state that requires a defendant to have "a deliberate intention unlawfully to kill a fellow human being." (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) To evaluate Gomez's claim challenging the sufficiency of the evidence, " 'we review the whole record to determine whether . . . [there was] substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.' " (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
We agree with the Attorney General that sufficient evidence of express malice exists here based on both Gomez's statements indicating he intended to kill the victim and Gomez's actions, including slashing the victim's neck multiple times. Gomez acknowledges that he expressed an intent to kill the victim, but he argues that "[w]hen all the evidence is considered, it is obvious that [he] was in an abnormal state of mind" and did not actually form an intent to kill because he did not kill the victim when he had the chance to do so. We are not persuaded. We acknowledge that a reasonable jury might have concluded that Gomez, despite his statements, did not truly intend to kill the victim because some of Gomez's actions were inconsistent with that purpose. But viewing the evidence in the light most favorable to the prosecution, as we must, we conclude that Gomez's statements alone were substantial evidence that he harbored the requisite intent to kill.
Moreover, it is well-settled that a defendant may form the intent to kill even if he or she later abandons further efforts to effectuate the killing. (People v. Houston, supra, 54 Cal.4th at pp. 1218-1219.) Gomez identifies many ways in which he would have acted differently had he actually wanted to kill the victim, but his failure to follow through does not compel the conclusion that he lacked the requisite intent. For example, the jury could have reasonably concluded that Gomez intended to kill the victim when he stabbed the victim in the neck the first time, hard enough to cause copious bleeding, and then said that the victim was going to "bleed out." Although the jury could have discounted Gomez's statements and actions as the product of an irrational mind, it was also entitled to rely on them to conclude that he acted with express malice. Gomez's claim fails.
B. Gomez Cannot Establish that He Received Ineffective Assistance of Counsel Based on His Failure to Accept a Favorable Plea Offer.
Gomez also claims that his trial counsel provided ineffective assistance by not advising him to accept the prosecution's plea offer. The record fails to demonstrate that his counsel's performance was deficient.
1. Additional facts.
Trial in this case was originally set for August 2015. The minute order for September 1 of that year shows that, while jury selection was ongoing, the trial court and the parties had two off-the-record conferences "re possible disposition." The order also notes that Gomez's trial counsel then informed the court that Gomez rejected the prosecution's offer. Although at least one of those conferences was summarized on the record, the relevant portion of the September 1 reporter's transcript is not in the record before us.
Later in September 2015, the trial court granted a mistrial based on Gomez's trial counsel's health issues, and trial was continued to February 2016. On February 1, a supervising prosecutor was present in court. The trial court stated that the supervising prosecutor "had indicated he would let Mr. Gomez plead to 9 years at - it was 80 percent as a strike on a 245. That was the DA's final offer." The supervising prosecutor responded, "I thought it was 85 percent," and the court agreed. Gomez's trial counsel then confirmed that he "had discussed that with Mr. Gomez and Mr. Gomez was not interested." The court responded, "So we'll have no further negotiations." Thus, the record is clear that as of February 1, Gomez had been informed of a nine-year offer and had rejected it.
A week later, on February 8, 2016, the trial court and the parties again discussed plea negotiations. The court stated that the prosecution's last pretrial offer "was nine years at 80 percent time" and Gomez "had rejected that offer, had indicated that he wanted a drug program." The court then stated that the prosecution had now indicated that it "was not inclined to deal the case," and Gomez "was now offering 14 years at 85 percent time," which Gomez's trial counsel confirmed was correct. The record is silent as to why Gomez now sought a plea bargain on worse terms than those he was originally offered.
The same supervising prosecutor who was at the February 1 proceeding was again present in court, and he rejected Gomez's 14-year offer. In doing so, the prosecutor exhibited some confusion about whether a nine-year offer had indeed been made. The trial court then confirmed that it had and stated that Gomez had rejected it. Counsel for both parties agreed this was correct. The court stated, "Well, I assume the case is going to trial then."
2. The record does not support the conclusion that Gomez's trial counsel failed to advise Gomez to take the nine-year plea offer.
The law governing a claim of ineffective assistance of counsel is well-settled. The federal and state Constitutions guarantee criminal defendants the right to adequate representation by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Vines (2011) 51 Cal.4th 830, 875.) To prevail on a claim of ineffective assistance of counsel, a defendant must show both "that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Centeno (2014) 60 Cal.4th 659, 674.) In particular, a defendant can prevail on such a claim by "demonstrat[ing] that ineffective representation at the pretrial stage of a criminal proceeding caused him or her to proceed to trial rather than to accept an offer of a plea bargain that would have been approved by the [trial] court." (In re Alvernaz (1992) 2 Cal.4th 924, 928.)
The first Strickland prong requires a defendant to show that "counsel's performance . . . fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) In evaluating this prong, "a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Ibid.) " ' "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." ' " (People v. Stanley (2006) 39 Cal.4th 913, 954.) Because the presumption of counsel's competence can usually be rebutted only with evidence outside the record, a reversal on direct appeal is not warranted unless "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (Mai, at p. 1009.)
Gomez's claim depends on factual premises that the record does not support. Initially, it is hardly clear that the prosecution renewed the nine-year offer on February 1, 2016, as the trial court's discussion with the parties can be read as merely summarizing the plea negotiations before the mistrial was granted. But even assuming that the nine-year offer was renewed on February 1, the record does not support Gomez's claim that between that date and February 8, 2016, when Gomez indicated he was willing to plead guilty with a 14-year sentence, "there was . . . a 'window of opportunity' . . . for [him] to accept the offer of a 245 with a 9-year sentence." (Italics omitted.) There is no evidence that the prosecution still considered the offer to be open after his trial counsel confirmed on February 1 that Gomez had rejected it. Gomez's counsel cannot have rendered deficient representation by failing to advise Gomez about an offer that was no longer available.
Furthermore, even if Gomez could have still accepted the nine-year offer until February 8, there is no basis on which to conclude that his trial counsel failed to advise him properly in the week leading up to that date. Gomez claims that he must have been ill-advised because "[i]t is highly improbable that he would have been willing to accept a 14-year sentence on February 8 but [would] not have been willing to accept a 9-year term on February 1 . . . if he had received proper advice at that time." Essentially, he claims that we can infer that counsel did not advise him properly because not taking the offer was a bad decision. We refuse to do so. Defendants routinely make poor decisions about whether to accept plea offers. In the absence of any other evidence about whether and to what extent counsel advised him about the plea offer, the rejection of what in retrospect was a "good" offer is an insufficient basis on which to conclude that counsel's performance was deficient.
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.