People v. Gomez CA2/7 ( 2024 )

Filed 10/3/24 P. v. Gomez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B329300
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA070040)
v.
JOVANI MANUEL GOMEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hayden A. Zacky, Judge. Affirmed.
Jason Szydlik, 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, and Michael C. Keller and Blake
Armstrong, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Jovani Manuel Gomez was convicted in 2011 of murder and
other crimes. He appeals from the superior court’s order
following an evidentiary hearing denying his petition for
resentencing under Penal Code section 1172.6.1 In this, his
second, appeal from an order denying his section 1172.6 petition,
Gomez argues the superior court failed to consider his relative
youth—he was 23 years old at the time of the murder—among
the totality of the circumstances relevant to determining whether
he had the requisite mental state for second degree murder. We
conclude there is no reasonable likelihood that, had the superior
court considered Gomez’s age when he committed the murder, the
court would have granted Gomez’s petition. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Gomez of First Degree Murder,
We Reverse That Conviction, and the People Agree To
Reduce the Conviction to Second Degree Murder
Our opinion reversing the superior court’s order summarily
denying Gomez’s section 1172.6 petition summarized the
evidence at trial. (See People v. Gomez (May 20, 2021, B303647)
[nonpub. opn.] (Gomez II).) “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),
1 Statutory references are to the Penal Code.
2
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)).”
(Gomez II, supra, B303647.)
“German Chairez and Leonel Serrano were members of
Columbus Street, a criminal street gang. Gomez, Alvarenga,
Andrade, and Garcia were members of a rival gang, Vincent
Town. On November 19, 2010 Chairez and Serrano were visiting
a friend at an apartment complex. As they walked downstairs to
leave the complex, Serrano heard someone shout ‘Fuck
Columbus!’ and saw two men shooting at him and Chairez.
Serrano and Chairez turned around and raced back up the stairs
as the assailants continued shooting. Both men were hit in the
back. Chairez died from a bullet that perforated his lung.
Serrano survived.” (Gomez II, supra, B303647.)
“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,
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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.” (Gomez II,
supra, B303647.)
“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.’” (Gomez II, supra,
B303647.)
The People argued each of the defendants was either a
direct perpetrator of the crimes charged or aided and abetted
those crimes. In addition to instructions on murder and first
degree premeditated murder, the court instructed the jury on
direct aiding and abetting and the natural and probable
consequences doctrine. The trial court instructed the jurors that,
under the natural and probable consequences doctrine, they could
find any one of the defendants guilty of murder or attempted
murder if he aided and abetted the target offense of shooting at
an inhabited dwelling or the uncharged target offense of assault
with a firearm and the natural and probable consequence of
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either target offense was murder or attempted murder.
(Gomez II, supra, B303647.)
The jury convicted Gomez and his codefendants of first
degree premeditated murder and all other charged offenses and
found each of the special allegations true. The trial court
sentenced Gomez to an aggregate term of 162 years to life.
(Gomez II, supra, B303647.)
On appeal we reversed Gomez’s and his codefendants’
convictions for first degree murder because in People v. Chiu
(2015) 59 Cal.4th 155, decided after Gomez’s trial, the Supreme
Court held aiders and abettors may be convicted of first degree
premeditated murder under direct aiding and abetting principles,
but not under the natural and probable consequences doctrine.
(People v. Gomez (June 23, 2015, B251303) [nonpub. opn.]
(Gomez I); see Chiu, at pp. 158-159.) We also reversed the
convictions for discharging a firearm with gross negligence as a
lesser included offense of the charge of shooting at an inhabited
dwelling. Following remand, the People elected not to retry the
first degree murder charge and agreed the court could reduce
that conviction to second degree murder. (Gomez II, supra,
B303647.) The superior court resentenced Gomez to an
aggregate term of 120 years to life.
B. The Superior Court Twice Denies Gomez’s Petition for
Resentencing Under Section 1172.6
In 2019 Gomez filed a petition for resentencing under
former section 1170.95 (now section 1172.6). The superior court
summarily denied the petition based on the jury’s finding Gomez
had personally used and discharged a firearm causing great
bodily injury or death. The court ruled this finding made clear
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Gomez “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.” Gomez appealed,
and we reversed. We held the superior court erred in summarily
denying Gomez’s petition because “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.” (Gomez II, supra, B303647.)
We directed the superior court to appoint counsel for Gomez,
issue an order to show cause, and conduct an evidentiary hearing
under section 1172.6. (Ibid.)
At the evidentiary hearing in January 2023 Gomez
presented testimony from three alibi witnesses. The superior
court ruled that, even if the witnesses’ testimony was admissible
in a hearing under section 1172.6, it did not establish an alibi for
Gomez or change the court’s decision to deny Gomez’s petition.
The court stated: “Pulling the trigger of a loaded gun and firing
multiple shots at two people in the back as they fled clearly
demonstrate express malice, and/or aiding and abetting based on
express or implied malice, at a minimum. Even if Gomez did not
expressly intend to kill, which this Court believes is not
debatable, his actions clearly and unequivocally demonstrate that
he personally acted with implied malice and/or aided and abetted
the perpetrator with implied malice, because by his words or
conduct, Gomez aided the commission of the life-endangering act,
not the result of that act.” Gomez timely appealed.
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DISCUSSION
A. Section 1172.6
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder, eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder (People v. Curiel (2023) 15 Cal.5th
433, 448; People v. Reyes (2023) 14 Cal.5th 981, 986; People v.
Gentile (2020) 10 Cal.5th 830, 842-843), and significantly
narrowing the felony-murder exception to the malice requirement
for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v.
Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021)
11 Cal.5th 952, 957). Section 188, subdivision (a)(3), now
prohibits imputing malice based solely on an individual’s
participation in a crime and requires proof of malice to convict a
principal of murder, except under the revised felony-murder rule
in section 189, subdivision (e).
Section 1172.6 authorizes an individual convicted of
murder based on the natural and probable consequences doctrine
to petition the superior court to vacate the conviction and be
resentenced on any remaining counts, if he or she could not now
be convicted of murder because of the changes the Legislature
made effective 2019 to the definition of the crime. (See People v.
Curiel, supra, 15 Cal.5th at pp. 449-450; People v. Strong, supra,
13 Cal.5th at p. 708; People v. Lewis, supra, 11 Cal.5th at p. 957.)
If a section 1172.6 petition contains all the required information,
the court must appoint counsel to represent the petitioner, if
requested. (Lewis, at pp. 962-963; see § 1172.6, subd. (b)(1)(A),
(3).) The prosecutor must then file a response to the petition, the
petitioner may file a reply, and the court must hold a hearing to
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determine whether the petitioner has made a prima facie
showing he or she is entitled to relief. (§ 1172.6, subd. (c).)
Where, as here, the petitioner has made a prima facie
showing he or she is entitled to relief under section 1172.6, the
court must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(§ 1172.6, subd. (d)(1).) At that hearing the court may consider
evidence “previously admitted at any prior hearing or trial that is
admissible under current law,” including witness testimony.
(§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may
also offer new or additional evidence. (Ibid.; see People v. Gentile,
supra, 10 Cal.5th at pp. 853-854.)
B. Any Error in Failing To Consider Gomez’s Youth Was
Harmless
Gomez does not argue substantial evidence did not support
the superior court’s findings. Gomez argues only that the court
erred in failing to consider his youth (as stated, he was 23 years
old when he committed the crimes) in determining whether he
acted with the requisite mental state for second degree murder.
Any error, however, was harmless under the applicable prejudice
standard of People v. Watson (1956) 46 Cal.2d 818, 836. (See
People v. Jimenez (2024) 103 Cal.App.5th 994, 1007 [Watson
standard, “which asks whether it is reasonably probable that a
result more favorable to [the defendant] would have been reached
absent the failure to consider his youth,” applies to the superior
court’s failure to consider the defendant’s age in ruling on a
section 1172.6 petition]; People v. Pittman (2023) 96 Cal.App.5th
400, 417-418 (Pittman) [Watson harmless error standard applies
to the superior court’s failure, in ruling on a section 1172.6
8
petition, to consider the defendant’s age in determining whether
he acted with implied malice]; People v. Oliver (2023)
90 Cal.App.5th 466, 489 & fn. 8 (Oliver) [same].)
1. Applicable Law
The superior court found Gomez could still be found guilty
of second degree murder as either the actual killer or an aider
and abettor. We focus on aiding and abetting liability because
the evidence did not specifically show whether the bullets Gomez
fired actually killed Chairez. And while we agree with the
superior court there was circumstantial evidence of express
malice, we focus on implied malice because that is the theory
where the defendant’s youth is particularly relevant in
determining whether he or she had the requisite mental state for
second degree murder. (See Pittman, supra, 96 Cal.App.5th at
p. 417 [defendant’s youth is relevant to the determination
whether the defendant acted with conscious disregard for human
life]; see also People v. Jimenez, supra, 103 Cal.App.5th at p. 1005
[“California cases only recently began to require consideration of
a young adult offender’s age in resentencing petitions involving
implied malice murder convictions.”].)
Second degree murder is “‘“the unlawful killing of a human
being with malice aforethought but without the additional
elements, such as willfulness, premeditation, and deliberation,
that would support a conviction of first degree murder.”’”
(Pittman, supra, 96 Cal.App.5th at p. 414; see People v. Cravens
(2012) 53 Cal.4th 500, 507.) “Malice aforethought may be express
or implied. [Citation.] Implied malice exists when no
considerable provocation appears, or when the circumstances
attending the killing show an abandoned and malignant heart.
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[Citation.] Murder is committed with implied malice when the
killing is proximately caused by an act, the natural consequences
of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the
life of another and who acts with conscious disregard for life.
[Citation.] To be considered the proximate cause of the victim’s
death, the defendant’s act must have been a substantial factor
contributing to the result, rather than insignificant or merely
theoretical. [Citation.] The question of implied malice is to be
decided in light of all the circumstances.” (Pittman, at
pp. 414-415, internal quotations omitted; see People v. Reyes,
supra, 14 Cal.5th at p. 988; § 188, subd. (a).)
“‘“[D]irect aiding and abetting is based on the combined
actus reus of the participants and the aider and abettor’s own
mens rea. [Citation.] In the context of implied malice, the actus
reus required of the perpetrator is the commission of a life-
endangering act. For the direct aider and abettor, the actus reus
includes whatever acts constitute aiding the commission of the
life-endangering act. . . . The mens rea, which must be personally
harbored by the direct aider and abettor, is knowledge that the
perpetrator intended to commit the act, intent to aid the
perpetrator in the commission of the act, knowledge that the act
is dangerous to human life, and acting in conscious disregard for
human life.”’” (Pittman, supra, 96 Cal.App.5th at p. 415; see
People v. Reyes, supra, 14 Cal.5th at pp. 990-991.) “The direct
aider and abettor must, therefore, act with intent to aid the
life-endangering act of the direct perpetrator that proximately
causes the death.” (Pittman, at p. 415.) Thus, for Gomez to be
guilty of second degree implied malice murder as an aider and
abettor, there must be substantial evidence to support the
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superior court’s findings Gomez knew his accomplice intended to
shoot Chairez, intended to aid his confederate in shooting
Chairez, knew shooting at Chairez was dangerous to Chairez’s
life, and acted in conscious disregard of Chairez’s life. (See ibid.;
see also People v. Montanez (2023) 91 Cal.App.5th 245, 270
[reviewing the superior court’s factual findings for substantial
evidence].)
As discussed, Gomez argues the superior court failed to
consider his youth in determining whether Gomez acted in
conscious disregard of Chairez’s life. The court in Pittman,
supra, 96 Cal.App.5th 400 held youth is relevant to “a criminal
defendant’s ability to perceive risk and consequences, and
therefore to the level of culpability,” in determining whether a
defendant acted with implied malice. (Id. at p. 417.) Pittman
extended the holdings of earlier cases concluding youth was
relevant to determining whether a defendant had the requisite
mental state to be convicted of felony murder. (See, e.g., People v.
Jones (2022) 86 Cal.App.5th 1076, 1088, fn. 7; People v. Ramirez
(2021) 71 Cal.App.5th 970, 987; In re Moore (2021)
68 Cal.App.5th 434, 451.) “The cases discussing the role of youth
in relation to criminal culpability ‘stress two areas’: youthful
offenders’ ‘relative impulsivity’ and ‘their vulnerability to peer
pressure.’” (Pittman, at p. 418; see Oliver, supra, 90 Cal.App.5th
at p. 489.) “Transient rashness, impetuosity, and failure to
appreciate risks and consequences are hallmarks of an immature
brain” and may be considered in the totality of circumstances
relevant to a defendant’s mental state. (Pittman, at p. 418,
internal quotations omitted; see Oliver, at p. 490.)
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2. There Was No Evidence Suggesting Gomez
Acted Impulsively or Under Peer Pressure
The evidence that two days before the shooting one of
Gomez’s codefendants said “something ‘was going to go down’ and
‘Columbus Street was going to see that Vincent Town was back’”
(Gomez II, supra, B303647) showed the attack against members
of the Columbus Street gang was planned and not the result of
“‘transient rashness.’”2 (Pittman, supra, 96 Cal.App.5th at
p. 418.) In addition, at least two of Gomez’s codefendants were
armed before they saw the victims, and someone yelled “Fuck
Columbus!” before opening fire, announcing their plan to attack.
(Gomez II, supra, B303647.) In contrast, in Pittman the court
held a 21-year-old’s youth may have diminished his culpability
for second degree murder because the attack occurred by
“happenstance” and the defendant armed himself
“spontaneous[ly]” with a chisel. (Ibid.; see People v. Jimenez,
supra, 103 Cal.App.5th at p. 1008 [evidence suggested the
19-year-old defendant was “‘swept up in circumstances’ beyond
his control,” where the defendant’s new girlfriend shot her ex-
boyfriend with the defendant’s gun].) The evidence did not show
whether Gomez brought a gun to the apartment complex or used
a codefendant’s gun, but Gomez and his codefendants ran to the
apartment complex as soon as they heard a member of the
Columbus Street gang was nearby. (Gomez II, supra, B303647.)
2 Gomez attempts to discredit this testimony by arguing it
“crossed the line into speculation.” It did not. The statement was
specific in its details and by Andrade, who was present at the
shooting. (See People v. Jones (2017) 3 Cal.5th 583, 610
[testimony is not speculative “merely because inferences were
required” to understand its meaning].)
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While the crime could be called opportunistic, Gomez and his
accomplices did not act “impulsively” or with “‘impetuosity.’”
(Pittman, at p. 418; see Oliver, supra, 90 Cal.App.5th at p. 490.)
There also was no evidence peer pressure affected Gomez’s
decision to participate in the shooting. Gomez argues the ages of
his codefendants (25, 25, and 17 years old at the time of the
murder), along with his gang membership, created an inference
Gomez “experienced peer pressure.” Any such inference,
however, would be speculative. (See In re Ramirez (2019)
32 Cal.App.5th 384, 404 [inference the defendant played a
substantial role in planning the crime based on his age and the
ages of his accomplices was “merely speculative”]; see also People
v. Watkins (2012) 55 Cal.4th 999, 1023 [“‘“[a]n inference is not
reasonable if it is based only on speculation”’”]; People v. Holt
(1997) 15 Cal.4th 619, 669 [same].) There is little indication that
Gomez “could not have declined to participate in the murder”
(Oliver, supra, 90 Cal.App.5th at p. 489) or that he was trying to
impress an accomplice. In contrast, in People v. Ramirez, supra,
71 Cal.App.5th 970 the defendant told police he was afraid that,
if he did not help his accomplice, “the neighborhood would find
out and someone might kill him later.” (Id. at p. 991.) And in
People v. Jimenez, supra, 103 Cal.App.5th 1007 the defendant
“had only recently begun dating [the actual killer] and could have
been particularly susceptible to the influence of a new girlfriend.”
(Ibid.)3
3 The court in Pittman stated the 21-year-old defendant
“participated in [an] attack . . . with two peers who were 16 and
17 years old. Inferences of immaturity and peer pressure may be
drawn from those facts.” (Pittman, supra, 96 Cal.App.5th at
13
There also was no evidence Gomez’s relative youth affected
his ability to appreciate the risks and consequences of his
behavior. Even a much younger person can appreciate the risks
inherent in shooting someone in the back (People v. Mitchell
(2022) 81 Cal.App.5th 575, 595),4 and Gomez admitted he had
two prior felony convictions for which he served prison terms, so
that he understood the consequences of committing crimes.
Gomez argues his “careless[ness]” shows he did not appreciate
the likelihood he would be caught or the consequences of the
shooting. He points in particular to his and his codefendants’
conversation with Ortiz before the shooting as evidence that
Gomez “knew Ortiz would witness the shooting” and “did not
care.” Gomez again draws an unreasonable inference from the
evidence, which showed Ortiz was a friendly member of another
gang. In any event such speculation is a far cry from the type of
evidence that would support an inference a youthful offender may
not have appreciated the risks and consequences of his or her
acts. (Cf. People v. Jimenez, supra, 103 Cal.App.5th at p. 1007
p. 418.) The court appeared to have inferred the defendant acted
like a teenager because he helped his teenage accomplices
spontaneously attack and kill a man. Because Gomez’s
accomplices were both older and younger, there is no basis for
drawing a similar inference in this case.
4 The court in People v. Mitchell, supra, 81 Cal.App.5th 575stated, in holding an 18-year-old showed a reckless indifference
to human life for purposes of determining his culpability for
felony murder: “Youth can distort risk calculations. Yet every
18 year old understands bullet wounds require attention. The
fact of youth cannot overwhelm all other factors.” (Id. at p. 595;
see also People v. Reyes, supra, 14 Cal.5th at p. 992 [shooting at
someone is a life-endangering act].)
14
[19-year-old defendant was “still on the lower end of the young
adult age range,” “could have been particularly susceptible to the
influence of a new girlfriend,” and did not know she had a
propensity for violence when she shot her ex-boyfriend with the
defendant’s gun]; Pittman, supra, 96 Cal.App.5th at pp. 404-405
[21-year-old defendant suggested he and his friends attack a man
in a truck parked in front of the defendant’s house and
spontaneously took several chisels from a bucket on a neighbor’s
porch, one of which the actual killer used to stab and kill the
victim].) Here, “we are not . . . presented with a situation where
a youthful offender was swept up in circumstances beyond his or
her control that led to an unintended death.” (Oliver, supra,
90 Cal.App.5th at p. 489; see ibid. [23-year-old defendant knew
his codefendant planned to kill the victim following a drug deal
and agreed to go along to complete the deal]; In re Harper (2022)
76 Cal.App.5th 450, 472 [17-year-old defendant willingly
participated in a robbery and provided a gun to the actual killer,
despite “knowing there was a very high risk—if not a certainty—
the victim would die”].) Indeed, Gomez and his codefendants
planned to attack members of the Columbus Street gang and
armed themselves, and Gomez shot at the victims as they tried to
escape.
Finally, Gomez was 23 years old at the time of the murder,
which is on the older end of the youthful offender spectrum. (See
§ 3051 [requiring youth offender parole hearings for offenders
who committed their crimes when they were 25 years of age or
younger]; § 4801, subd. (c) [parole board must “give great weight
to the diminished culpability of youth as compared to adults” for
prisoners who committed their offenses at 25 years of age or
younger].) “Presumably, the presumption of immaturity weakens
15
as a defendant approaches 26.” (Oliver, supra, 90 Cal.App.5th at
p. 489; see ibid. [superior court’s failure to consider the
youthfulness of a 23-year-old offender in ruling on his petition
under section 1172.6 was harmless]; see also People v. Jimenez,
supra, 103 Cal.App.5th at p. 107 [“[p]resumably, the younger the
defendant, the less mature he is”].) Under these circumstances it
is not reasonably probable the superior court would have granted
Gomez’s petition had the court considered Gomez was 23 years
old at the time of the murder. (See People v. Watson, supra,
46 Cal.2d at p. 836; Oliver, supra, 90 Cal.App.5th at p. 489, fn. 8.)
DISPOSITION
The superior court’s order denying Gomez’s petition under
section 1172.6 is affirmed.
SEGAL, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
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