People v. Gomez CA2/7 ( 2021 )

Filed 5/20/21 P. v. Gomez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B303647
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA070040-02)
v.
JOVANI GOMEZ,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Hayden A. Zacky, Judge. Reversed and
remanded.
Janet R. Gusdorff, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Charles S. Lee and John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________
Jovani Gomez, convicted in 2012 of first degree murder,
attempted willful, deliberate and premeditated murder and
shooting at an inhabited dwelling, appeals the superior court’s
postjudgment order denying his petition for resentencing under
Penal Code section 1170.951 without appointing counsel or
conducting an evidentiary hearing. The Attorney General agrees
with Gomez the superior court erred in finding section 1170.95
unconstitutional and, alternatively, denying his petition for
resentencing based solely on the jury’s finding he had personally
discharged a firearm causing the victim’s death (§ 12022.53,
subd. (d)).
We agree with Gomez, as well. We reverse the superior
court’s order and remand with directions to appoint counsel for
Gomez, to issue an order to show cause and to conduct further
proceedings in accordance with section 1170.95, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
1. Gomez’s Murder Conviction, Appeal and Sentencing on
Remand
a. The trial
Our opinion reversing Gomez’s first degree murder
conviction under People v. Chiu (2015) 59 Cal.4th 155 (Chiu)
describes in detail the evidence presented at trial, the jury’s
verdict and Gomez’s original sentence. (People v. Gomez
(June 23, 2015, B251303) [nonpub. opn.].)
1 Statutory references are to this code.
2
Gomez, Kevin Alvarenga, Juan Carlos Andrade and
Leonardo Garcia were charged in an information with murder
(§ 187, subd. (a)) (count 1), attempted premeditated murder
(§§ 187, subd. (a), 664) (count 2), two counts of shooting at an
inhabited dwelling (§ 246) (counts 3 and 4), discharge of a firearm
with gross negligence (§ 246.3, subd. (a)) (count 7) and street
terrorism (§ 186.22, subd. (a)) (count 8). Gomez and Garcia were
also charged with one count each of being a felon in possession of
a firearm (former § 12021, subd. (a)(1)) (counts 5 and 6). It was
specially alleged as to counts 1 through 7 that the offenses had
been committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)) and as to counts 1 through 4 that each of the
defendants had personally used and intentionally discharged a
firearm causing great bodily injury or death (§ 12022.53,
subds. (b), (c), (d)) and/or a principal had personally used and
intentionally discharged a firearm causing great bodily injury or
death (§ 12022.53, subd. (e)(1)).
According to the evidence at trial, German Chairez and
Leonel Serrano were members of Columbus Street, a criminal
street gang. Gomez, Alvarenga, Andrade and Garcia were
members of the Vincent Town criminal street gang, a rival of
Columbus Street’s. On November 19, 2010 Chairez and Serrano
were visiting a friend at an apartment complex in the North Hills
section of the San Fernando Valley. As they walked down the
stairs on their way out of the complex, Serrano heard someone
shout “Fuck Columbus!” and saw two men shooting at him and
Chairez. Serrano and Chairez immediately turned around and
raced back up the stairs as shots continued to be fired. Both men
were hit in the back. Chairez died from a bullet that perforated
his lung. Serrano survived.
3
Salvador Ortiz was in the area of the apartment complex on
the night of the shooting and encountered Andrade, Garcia and
Gomez, known to him by their gang monikers, “Happy,” “Baby”
and “Clever,” respectively. Ortiz noticed Andrade and Garcia
were armed. One man had a semiautomatic weapon; the other a
revolver. Their conversation was friendly because Ortiz, a
member of the Barrio Van Nuys gang, was not a rival. Within a
few minutes of talking to them, Ortiz heard a person in the alley
shout that a “Columbus Streeter” was nearby. Andrade, Garcia
and Gomez ran toward the apartment complex. Ortiz saw Garcia
quickly pull out a gun from underneath his sweatshirt. Almost
immediately, Ortiz heard a barrage of gunshots fired from
two different guns. He did not see the actual shooting.
At trial Serrano denied seeing the shooters. Testifying
after Serrano, Maria Gutierrez (Chairez’s girlfriend and the
mother of his child) explained she had overheard Serrano tell a
friend that Clever and Big Boy, referring to Gomez and Garcia,
had been the shooters and Happy and Kevin, referring to
Andrade and Alvarenga, “had [also] been there.” Brandon
Binning testified that two days before the shooting Andrade had
told him something “was going to go down” and “Columbus Street
was going to see that Vincent Town was back.”
The People introduced evidence that Gomez had made a
call from his cell phone to Andrade at 11:16 p.m. on
November 19, 2010, the approximate time of the shooting. The
call, which went to Andrade’s voicemail, connected to a cell tower
just south of the crime scene. The People’s wireless expert
testified Gomez’s cell phone was “in the vicinity” of the crime
scene at the time of the shooting.
4
The People’s theory at trial was that each of the defendants
was either a direct perpetrator of the crimes charged or aided and
abetted those offenses. In addition to instructions on murder
(CALCRIM No. 520), first degree premeditated murder
(CALCRIM No. 521), attempted murder (CALCRIM No. 600),
attempted premeditated murder (CALCRIM No. 601) and
shooting at an inhabited dwelling (CALCRIM No. 965), among
others, the jury was instructed on direct aiding and abetting
principles (CALCRIM Nos. 400, 401) and the natural and
probable consequences doctrine (CALCRIM Nos. 402, 403).
Under the natural and probable consequences doctrine, the jury
was told, it could find any one of the defendants guilty of murder
and/or attempted murder if he aided and abetted the target
offenses of shooting at an inhabited dwelling and/or the
uncharged target offense of assault with a firearm, and the
natural and probable consequence of either target offense was
murder or attempted murder.
The jury convicted Gomez, Andrade, Alvarenga and Garcia
of first degree premeditated murder and all other charged
offenses and found each of the special allegations true, including
the section 12022.53, subdivision (d), firearm-use enhancement
allegations as to the murder, attempted murder and shooting at
an inhabited dwelling charges. Gomez was sentenced to an
aggregate indeterminate state prison term of 162 years to life.
b. Gomez’s appeal
On appeal we reversed Gomez’s and his codefendants’
convictions for first degree murder based on the Supreme Court’s
decision in Chiu, supra, 59 Cal.4th 155, decided after Gomez’s
trial, which held aiders and abettors may be convicted of
first degree premeditated murder under direct aiding and
5
abetting principles, but not under the natural and probable
consequences doctrine. (Id. at pp. 158-159.)2 We explained that,
although the instructions arguably required the jury to find the
individual who actually shot and killed Chairez possessed the
requisite mental state of premeditation and deliberation for a
first degree murder conviction, “without a clarification that the
natural and probable consequences doctrine was limited to
second degree murder, the instructions as a whole effectively
permitted the jury to convict some or all of the defendants of first
degree premeditated murder as an aider or abettor under that
legally invalid theory.”
We rejected the Attorney General’s argument the Chiu
error was harmless in light of the evidence at trial of planning
and premeditation. We held, “Although the evidence is certainly
sufficient to support a finding of premeditation and deliberation
in this case, the prosecutor relied heavily on the natural and
probable consequences doctrine at trial, telling the jury
repeatedly during closing argument it need not find the
defendants intended to commit a murder so long as it found
murder was a natural, probable and foreseeable consequence of a
different target offense. Nothing in this record demonstrates
beyond a reasonable doubt that the jury based its verdict on the
legally valid direct aiding and abetting (or direct perpetrator)
theory rather than the invalid natural and probable
consequences doctrine.” (Footnote omitted.)
We remanded the case, explaining the People had the
election in accordance with Chiu of accepting a reduction of the
2 We also reversed the convictions for discharge of a firearm
with gross negligence as a lesser included offense of the charge of
shooting at an inhabited dwelling.
6
murder conviction on count 1 to second degree murder,3 with all
associated enhancements found true by the jury, or to retry the
greater offense of first degree premeditated murder (along with
the accompanying specially alleged enhancements) under a direct
aiding and abetting theory.
c. Proceedings on remand
On remand the People elected not to retry the first degree
murder charge. Resentencing Gomez, the court imposed an
indeterminate state prison term of 15 years to life for second
degree murder plus 25 years to life for the firearm-use
enhancement; two additional consecutive state prison terms of
15 years to life for shooting at an occupied dwelling for the
benefit of a criminal street gang plus 25 years to life on each
count for the firearm-use enhancements; and a consecutive life
term with a minimum parole eligibility of 15 years for attempted
premeditated murder plus 25 years to life for the firearm-use
enhancement. A concurrent sentence of seven years was imposed
on the firearm possession count, and a three-year prison term for
street terrorism was stayed.
2. Gomez’s Petition for Resentencing
On November 18, 2019 Gomez, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel. Gomez checked several boxes on the
printed form petition establishing his eligibility for resentencing
relief, including the box stating he could not now be convicted of
3 Chiu did not change the law regarding use of the natural
and probable consequences doctrine to prove second degree
murder. (See Chiu, supra, 59 Cal.4th at p. 166.)
7
first or second degree murder because of changes made to
sections 188 and 189, effective January 1, 2019.
The superior court summarily denied the petition on
December 6, 2019. In its order denying the petition the superior
court stated, based on the jury’s finding Gomez had personally
used and discharged a firearm causing great bodily injury or
death, “[I]t is clear that Petitioner was the actual killer or at a
minimum aided and abetted the killing and/or was a major
participant in the crime and acted with reckless indifference of
the victim’s life.”
The court alternatively denied Gomez’s petition on the
ground Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), which enacted section 1170.95, is
unconstitutional. In a single paragraph the court ruled Senate
Bill 1437 impermissibly amended Proposition 7 (the Death
Penalty Act, approved by voters in November 1978) and
Proposition 115 (the Crime Victims Justice Reform Act, approved
by voters in June 1990) by changing the definition of felony
murder and eliminating the natural and probable consequences
doctrine as a basis for accomplice liability for murder; violated
article I, sections 28, subdivision (a)(6), and 29 of the California
Constitution insofar as it provided a procedure to vacate final
judgments in criminal cases; and also violated the
constitutionally mandated separation of powers doctrine.
Gomez filed a timely notice of appeal.
8
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 838-839
(Gentile)) and significantly limited the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see People v. Rodriguez (2020) 58 Cal.App.5th 227, 236,
review granted Mar. 10, 2021, S266652; People v. Bascomb (2020)
55 Cal.App.5th 1077, 1080.) Senate Bill 1437 also authorized,
through new section 1170.95, an individual convicted of felony
murder or murder under a natural and probable consequences
theory to petition the sentencing court to vacate the conviction
and be resentenced on any remaining counts if he or she could
not have been convicted of murder because of Senate Bill 1437’s
changes to the definition of the crime. (See Gentile, at p. 859.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a
process for the court to determine whether to issue an order to
show cause and hold an evidentiary hearing to consider if the
murder conviction should be vacated and the petitioner
resentenced on any remaining counts. The superior court
properly proceeds under subdivision (c) in two steps, “one made
before any briefing to determine whether the petitioner has made
a prima facie showing he or she falls within section 1170.95—
that is, that the petitioner may be eligible for relief—and a
second after briefing by both sides to determine whether the
9
petitioner has made a prima facie showing he or she is entitled to
relief.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 328
(Verdugo), review granted Mar. 18, 2020, S260493; accord, People
v. York (2020) 54 Cal.App.5th 250, 262, review granted Nov. 18,
2020, S264954; People v. Soto (2020) 51 Cal.App.5th 1043, 1054,
review granted Sept. 23, 2020, S263939; People v. Drayton (2020)
47 Cal.App.5th 965, 975; People v. Torres (2020) 46 Cal.App.5th
1168, 1177, review granted June 24, 2020, S262011; but see
People v. Cooper (2020) 54 Cal.App.5th 106, 118, review granted
Nov. 10, 2020, S264684 [section 1170.95, subdivision (c),
contemplates only one prima facie review before an order to show
cause issues].)
Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra,
44 Cal.App.5th at p. 327, review granted.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez, supra, 58 Cal.App.5th at p. 230,
review granted; People v. Lopez (2020) 56 Cal.App.5th 936, 949,
review granted Feb. 10, 2021, S265974; but see People v. Duke
(2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021,
S265309 [prosecutor must only prove a reasonable jury could find
the defendant guilty of murder with the requisite mental state;
“[t]his is essentially identical to the standard of substantial
evidence”].) The prosecutor and petitioner may rely on the record
of conviction or offer new or additional evidence to meet their
respective burdens. (See People v. Tarkington (2020)
10
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton, supra, 47 Cal.App.5th at p. 981.)
2. Senate Bill 1437 Is Constitutional
Gomez contends, and the Attorney General agrees, the
superior court erred in holding section 1170.95, as enacted
through Senate Bill 1437, is unconstitutional.
In a comprehensive analysis of Propositions 7 and 115 and
Senate Bill 1437, as well as the separation of powers doctrine and
victims’ rights to finality of judgments as protected in Marsy’s
Law, our colleagues in Division Two of the Fourth District in
People v. Johns (2020) 50 Cal.App.5th 46, 63-69 explained why
each of the constitutional objections being raised to
Senate Bill 1437 lacked merit. All other courts of appeal that
have considered any of these grounds for a constitutional attack
on Senate Bill 1437 have likewise rejected them. (See, e.g.,
People v. Marquez (2020) 56 Cal.App.5th 40; People v. Prado
(2020) 49 Cal.App.5th 489; People v. Smith (2020) 49 Cal.App.5th
85, review granted July 22, 20202, S262835; People v. Bucio
(2020) 48 Cal.App.5th 300; People v. Solis (2020) 46 Cal.App.5th
762; People v. Cruz (2020) 46 Cal.App.5th 740; People v. Superior
Court (Gooden) (2019) 42 Cal.App.5th 270; People v. Lamoureux
(2019) 42 Cal.App.5th 241.) We find the reasoning in these cases
compelling and adopt it as our own.
3. The Superior Court Erred in Summarily Denying
Gomez’s Petition for Resentencing
As discussed, this court held the trial record did not
establish beyond a reasonable doubt that Gomez had been
convicted of first degree murder on a legally valid theory (as the
shooter acting with express malice and premeditation or as a
direct aider and abettor of such a shooter) rather than as an aider
11
and abettor of the target offense of shooting at an inhabited
dwelling under the natural and probable consequences theory
invalidated in Chiu. That holding necessarily established
Gomez’s prima facie eligibility for resentencing under section
1170.95, and he was entitled to an evidentiary hearing to
determine whether the court should vacate his murder conviction
and resentence him on the remaining counts (which would
include attempted murder and two counts of shooting at an
inhabited dwelling).
The superior court, however, unconcerned with reconciling
its decision with our holding and analysis of the trial record on
Gomez’s direct appeal, ruled a true finding on the
section 12022.53, subdivision (d), firearm enhancement
necessarily meant Gomez had acted with the mental state now
required for a murder conviction under sections 188 and 189.
That ruling rests on a misunderstanding of the requirements for
the firearm enhancement found true at Gomez’s trial. (See
People v. Lucero (2016) 246 Cal.App.4th 750, 759
[“Section 12022.53, subdivisions (c) and (d) both provide for
additional punishment for a defendant who ‘personally and
intentionally discharges a firearm’ under specified circumstances.
Both subdivisions refer only to the description of a particular
act—discharging a firearm—without reference to the defendant’s
intent to achieve any additional consequence. Further, neither
subdivision includes ‘language typically denoting specific intent
crimes, such as “with the intent” or “for the purpose of”’”].)
The court in People v. Offley (2020) 48 Cal.App.5th 588(Offley) explained the flaw in the superior court’s reasoning in an
analogous section 1170.95 case. In Offley the petitioner, one of
five defendants who took part in a gang-related shooting, was
12
charged with murder, attempted murder and shooting at an
occupied vehicle. (Offley, at p. 592.) Even though there was no
separate conspiracy count, the People presented evidence of a
conspiracy among the gang members; and the jury was instructed
a member of a conspiracy is guilty not only of the particular
crime he knows his confederates agreed to and committed, but
also for the natural and probable consequences of any crime of a
coconspirator to further the object of the conspiracy. (Id. at
p. 593.) Offley was convicted of the three crimes charged, and the
jury found true that he had personally used and intentionally
discharged a firearm proximately causing death to the victim.
(Ibid.)
The superior court summarily denied Offley’s
section 1170.95 petition at the first stage of the section 1170.95,
subdivision (c), review as described in Verdugo, supra,
44 Cal.App.5th 320, review granted, based on the jury’s true
finding of the firearm enhancement. (Offley, supra,
48 Cal.App.5th at p. 597.) The court of appeal reversed. Offley
had arguably been convicted of murder under the natural and
probable consequences doctrine. Thus, the Offley court held
Offley could now be convicted of murder only upon proof he had
acted with express or implied malice when shooting the victim;
and, “[b]ecause an enhancement under section 12022.53,
subdivision (d) does not require that the defendant acted either
with the intent to kill or with conscious disregard to life, it does
not establish that the defendant acted with malice aforethought.”
(Offley, at p. 598.)4 Elaborating on this point, the court
4 The Offley court continued, “Of course, the trial court may
look beyond the abstract of judgment and consider the entire
record of conviction, including any prior Court of Appeal opinions
13
explained, “The jury might have concluded that Offley intended
to take part in a conspiracy to commit assault with a firearm, or
to fire into an occupied vehicle, with the aim of either injuring or
merely frightening Barrales. The jury could have then concluded
that Barrales’s death was the natural and probable consequence
of the conspiracy and convicted [Offley] of murder without finding
beyond a reasonable doubt that he acted with malice
aforethought. For this reason, we cannot say that Offley ‘is
ineligible for relief as a matter of law.’” (Id. at p. 599.)
Similarly in the case at bar, in light of the instructions and
the prosecutor’s closing argument, the jury may have convicted
Gomez of murder and found true the section 12022.53,
subdivision (d), firearm-use enhancement based on his
participation in the target crime of shooting at an inhabited
dwelling and its conclusion Chairez’s death was the natural and
probable consequence of that act.5 As we held in Gomez’s direct
appeal, nothing in the trial record permits a contrary conclusion
beyond a reasonable doubt, let alone as a matter of law, the
standard required to deny a section 1170.95 petition without first
issuing an order to show cause and conducting an evidentiary
hearing. (See People v. Smith, supra, 49 Cal.App.5th at p. 92,
in the case, in determining whether a petitioner has made a
prima facie case of eligibility.” (Offley, supra, 48 Cal.App.5th at
pp. 598-599.)
5 The superior court seemed to recognize this likely scenario,
while ignoring its legal significance, stating in its order, “[I]t is
illogical to think that when Petitioner discharged the firearm
resulting in death to a human being, that his act, which resulted
in the death of a human being, was not a natural and probable
consequence of his actions.”
14
review granted [“[i]f it is clear from the record of conviction that
the petitioner cannot establish eligibility as a matter of law, the
trial court may deny the petition”]; People v. Cornelius (2020)
44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410
[record must show defendant is “indisputably ineligible for
relief”]; see also Verdugo, supra, 44 Cal.App.5th at p. 330, review
granted.)
4. The Remedy: Remand for an Evidentiary Hearing
Both Gomez and the Attorney General ask us to remand
the matter for further proceedings under section 1170.95.
However, the Attorney General, noting the superior court erred
at the first of the two steps in the prima facie review process
described in Verdugo, supra, 44 Cal.App.5th at page 328, review
granted, suggests the remand should be to permit the superior
court to complete the second step of that process—that is, to
appoint counsel for Gomez and to allow the parties to brief
whether the record of conviction establishes as a matter of law
that Gomez is ineligible for resentencing. Only after Gomez
prevails on that second step, the Attorney General contends,
should an order to show cause issue and an evidentiary hearing
be held pursuant to section 1170.95, subdivision (d).
The Attorney General is correct that Verdugo and the cases
that have followed it contemplate a two-step process under
section 1170.95, subdivision (c), before an order to show cause
issues. Because of this appeal, however, both parties have had
counsel fully brief the issue whether Gomez is ineligible for
resentencing as a matter of law. He is not. Delay and a waste of
resources would be the only products of a remand that did not
direct the court to issue an order to show cause and follow the
15
procedure detailed in section 1170.95, subdivision (d). We decline
to engage in such a meaningless formality.
DISPOSITION
The order denying Gomez’s section 1170.95 petition is
reversed. On remand the superior court is to appoint counsel for
Gomez, to issue an order to show cause and to conduct further
proceedings in accordance with section 1170.95, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
16