People v. Gomez CA2/4 ( 2024 )

Filed 2/6/24 P. v. Gomez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B314215
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. PA087810
v.
JORGE GOMEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hilleri G. Merritt, Judge. Reversed and
remanded with instructions.
Caneel C. Fraser, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Rama R.
Maline, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Jorge Gomez of
willful, premeditated, and deliberate attempts to murder four of
his abused ex-girlfriend’s family members. It also convicted him
of various other crimes. On appeal, a different panel of this court
concluded, among other things, that the trial court erred by
sentencing Gomez to terms of 15 years to life on the attempted
murder convictions. (People v. Gomez (Dec. 11, 2020, B295182)
[nonpub. opn.] (Gomez I). On remand, the trial court modified the
attempted murder sentences to seven years to life on each count.
On appeal, Gomez argues the case must be remanded for a
full resentencing hearing so the trial court can apply Assembly
Bill (AB) Nos. 124 and 518, as well as Senate Bill (SB) No. 81.
The Attorney General agrees remand is warranted for the court
to apply ABs 124 and 518, but argues the court should not apply
SB 81 on remand. As discussed in greater detail below, we agree
with Gomez. The matter is remanded for a full resentencing
hearing at which the trial court is directed to apply all three
laws.
PROCEDURAL BACKGROUND
In 2018, a jury convicted Gomez of four counts of willful,
premeditated and deliberate attempted murder (Pen. Code,1
§§ 664, 187, subd. (a); counts 1-3 & 8); fleeing a pursuing peace
officer (Veh. Code, § 2800.2; count 5); hit and run driving
resulting in property damage (Veh. Code, § 20002, subd. (a);
count 7); dissuading a witness by force or threat (§ 136.1, subd.
(c)(1); count 9); and four counts of assault with a deadly weapon
1 All undesignated statutory references are to the Penal
Code.
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(§ 245, subd. (a)(1); counts 10-13). The jury found true various
weapon use and great bodily injury allegations. The trial court
originally sentenced Gomez to 15 years to life on each attempted
murder count (60 years to life total), plus determinate terms on
various other counts and allegations totaling 10 years and 8
months. The court stayed sentencing under section 654 on counts
10 through 13.
On direct appeal, a different panel of this court reversed
Gomez’s conviction on count seven and affirmed the remaining
convictions. (Gomez I, supra, B295182.) This court also concluded
the trial court erred by sentencing Gomez to 15 years to life on
each attempted murder conviction and ordered the sentences
corrected. (Ibid.)
On remand, in July 2021, the trial court modified the
attempted murder sentences to seven years to life on each count.
The court imposed a modified sentence of 28 years to life plus a
determinate term of 10 years and 8 months.
Gomez timely appealed the sentence imposed at his July
2021 resentencing hearing. At a later resentencing hearing held
in November 2022, the trial court modified Gomez’s sentence,
imposing concurrent instead of consecutive terms on counts five
and nine, reducing Gomez’s determinate sentence to seven years.
Gomez’s appellate counsel augmented the record to include the
reporter’s transcript of the resentencing hearing held in
November 2022. Although this is an appeal from the resentencing
hearing that occurred in July 2021, in this opinion we also
analyze what occurred at the November 2022 resentencing
hearing for the sake of judicial economy.
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DISCUSSION
I. The matter is remanded for resentencing in
light of recently enacted ameliorative
sentencing laws
A. AB 518
Effective January 1, 2022, AB 518 (2021-2022 Reg. Sess.)
amended section 654 by removing the requirement that a
defendant be punished under the statute providing for the
longest term of imprisonment. (Stats. 2021, ch. 441, § 1.) Before
the enactment of AB 518, under section 654, “the sentencing
court was required to impose the sentence that ‘provides for the
longest potential term of imprisonment’ and stay execution of the
other term.” (People v. Mani (2022) 74 Cal.App.5th 343, 379
(Mani).) “As amended by [AB] 518, . . . section 654 now provides
the trial court with discretion to impose and execute the sentence
of either term, which could result in the trial court imposing and
executing the shorter sentence rather than the longer sentence.”
(Mani, supra, at p. 379.)
As noted above, the trial court sentenced Gomez on his four
attempted murder convictions, but stayed sentencing on the four
assault convictions under section 654. As also noted above,
Gomez’s sentencing hearing occurred in July 2021, before AB 518
took effect. The parties agree, and we agree with the parties, that
Gomez is entitled to the retroactive benefit of AB 518 as his case
is not yet final. (People v. Jones (2022) 79 Cal.App.5th 37, 45 [AB
518 applies retroactively to nonfinal cases].) We therefore vacate
Gomez’s sentence and remand the matter to the trial court for
another resentencing hearing. On remand, the trial court may
properly revisit all its sentencing choices in light of the new
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legislation. (People v. Buycks (2018) 5 Cal.5th 857, 893 (Buycks)
[“when part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate,
so the trial court can exercise its sentencing discretion in light of
the changed circumstances’”].)
B. AB 124 & SB 81
Also effective January 1, 2022, AB 124 (2021-2022 Reg.
Sess.) amended section 1170, subdivision (b)(6), making the low
term the presumptive sentence under certain circumstances,
including where an offender’s childhood trauma or youth were
contributing factors in the offense. (Stats. 2021, ch. 695, § 5.3.) As
Gomez notes, the augmented record contains evidence suggesting
these circumstances may be present in his case, including a
psychological report written by Dr. Nadim N. Karim and filed in
the trial court after the July 2021 sentencing hearing pursuant to
People v. Franklin (2016) 63 Cal.4th 261 (Franklin). The trial
court is directed to exercise its sentencing discretion in light of all
changed circumstances, including the enactment of AB 124 and
other new applicable sentencing laws. (See Buycks, supra, 5
Cal.5th at p. 893 [full resentencing hearing is appropriate in light
of changed circumstances].) To this end, the court is likewise
directed to apply SB 81 (2021-2022 Reg. Sess.) at Gomez’s
resentencing hearing.2
2 We disagree with the Attorney General’s contention that
the court should not apply SB 81 on remand. Effective January 1,
2022, SB 81 amended section 1385 by adding subdivision (c),
which requires courts to strike sentencing enhancements when it
is in the interest of justice to do so, while affording great weight
to evidence offered by the defendant to prove mitigating factors.
(Stats. 2021, ch. 721, § 1.) One such mitigating circumstance is
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C. A note regarding Gomez’s November 2022
resentencing hearing
Although Gomez appeals the judgment entered at his July
2021 sentencing hearing, we note that his appellate counsel
augmented the record to include information relating to a later
resentencing hearing which took place in November 2022. The
augmented record includes a “Sentencing Memorandum and
Statement in Mitigation” that Gomez’s trial counsel filed in the
trial court on September 21, 2022, pursuant to Franklin, along
with a psychological report. The augmented record also includes
a separate sentencing memorandum filed by defense counsel on
September 21, 2022, in which counsel asked the trial court to
apply new ameliorative laws at Gomez’s resentencing hearing.
Gomez’s appellate counsel also augmented the record to include
the reporter’s transcript of the resentencing hearing held in
November 2022.
Although it appears the trial court may have applied some
of the ameliorative laws discussed in this opinion at the
November 2022 resentencing hearing, the full extent to which the
court did so is unclear from the reporter’s transcript of that
hearing. It also appears that, when discussing SB 81, the
prosecution incorrectly represented that Gomez was precluded
from any relief afforded by modified section 1385 because his
underlying crimes were violent felonies. The prosecution
apparently misread section 1385, subdivision (c)(2)(F) as
precluding relief when an underlying offense is violent under
when multiple enhancements are alleged in a single case, as
happened here. (§ 1385, subd. (c)(2)(B).) As the Attorney General
points out, SB 81 applies to “all sentencings occurring after
January 1, 2022.” (§ 1385, subd. (c)(7).)
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section 667.5, subdivision (c).3 It appears the trial court may have
denied Gomez SB 81 relief based on the prosecution’s misreading
of the statute. On remand, despite Gomez’s violent felonies, the
court nonetheless may grant relief under SB 81. We express no
opinion, however, on whether the particulars of Gomez’s case
warrant such relief.
3 Contrary to the prosecution’s reading of the statute, the
language of section 1385, subdivision (c)(2)(F) does not preclude
relief when an underlying felony is violent. Rather, the statute
states that when the underlying crime is not a violent felony, that
serves as one of multiple possible factors in mitigation to which
the court must afford great weight when determining whether to
dismiss an enhancement. The statute thus does not foreclose
relief for individuals convicted of violent felonies. Rather, as
discussed above in footnote 2, it allows trial courts the discretion
to strike sentencing enhancements in cases such as this where
multiple enhancements were alleged.
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DISPOSITION
Gomez’s sentence is vacated. We remand the case for
resentencing. At Gomez’s resentencing hearing, the trial court is
directed to consider and apply AB 518, AB 124, and SB 81. We
express no opinion regarding what specific sentence the court
should impose on remand.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
COLLINS, J.
MORI, J.
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