People v. Gomez CA2/1 ( 2024 )

Filed 10/11/24 P. v. Gomez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B331711
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA005992)
v.
FAUSTINO RAMIREZ GOMEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mike Camacho, Judge. Affirmed in part and
reversed in part.
Patricia J. Ulibarri, 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, Assistant
Attorney General, Scott A. Taryle and Viet H. Nguyen,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
In 1991, a jury convicted Faustino Ramirez Gomez of, inter
alia, first degree murder and attempted murder. We affirmed the
judgment on direct appeal. (People v. Cordero et al. (Feb. 28,
1994, B061119) [nonpub. opn.] [Gomez I].) In 2019, Gomez
petitioned for resentencing on his first degree murder and
attempted murder convictions, and after an evidentiary hearing,
the trial court denied his petition.
On appeal, Gomez argues no substantial evidence supports
the trial court’s finding beyond a reasonable doubt that he could
still be convicted of murder and attempted murder. Gomez’s
principal argument is that trial court erred in finding Gomez’s
codefendant, who testified at the evidentiary hearing, not
credible. This argument fails because of the well-established
rule that appellate courts do not “ ‘reweigh evidence or reevaluate
a witness’s credibility.’ [Citations.]” (People v. Brown (2014)
59 Cal.4th 86, 106; People v. Beck and Cruz (2019) 8 Cal.5th 548,
627 [exclusive province of trial court or jury to determine the
credibility of a witness].)
We conclude the record contains substantial evidence
supporting the court’s finding that Gomez aided and abetted the
murder when he handed his fellow gang member, Rojelio
Cordero, a gun so Cordero could avenge an earlier gang attack on
his brother Jesus Cordero (Jesus). The record, however, contains
no substantial evidence to support the inference that Gomez
intended to kill the victim of the attempted murder. We
therefore affirm the order insofar as it denies resentencing with
respect to the murder and reverse the order insofar as it denies
resentencing on the attempted murder.
2
BACKGROUND
1. Gomez’s 1991 jury trial
The evidence at Gomez’s and Cordero’s trial showed that
Cordero and Gomez were members of the Happy Town gang. On
October 17, 1990, Cordero’s brother Jesus was assaulted by a
person who claimed to be from “Cherryville,” a rival gang to
Happy Town.
A.D. observed the fight involving Jesus and heard the
person fighting Jesus say “Cherryville.”1 Afterwards, A.D. told
Cordero about the fight. Gomez was with Cordero at the time
A.D. described the fight. A.D. testified that Cordero told Gomez
to bring a gun and Cordero, Gomez, A.D. and three others drove
back to Jesus’s school. Gomez placed the gun under the car seat.
Cordero went inside the school and then the group,
including Cordero, Gomez, and A.D., left the school in Cordero’s
car. A.D. testified that, as Cordero was driving, somebody in
Cordero’s car said, “There’s the truck.” Gomez handed Cordero
the gun and Cordero fired four or five shots. A.D. further
testified that she saw Gomez reach under the seat to retrieve the
gun and saw him fire the gun.
Carlos Valdez and Carlos Segura were in the back of the
pickup truck identified by someone in Cordero’s car. Segura saw
Gomez in the car with Cordero. Segura testified a bullet hit
Valdez and he felt the bullets near him. Segura heard six shots.
Valdez died of a gunshot wound to his head. Valdez and Segura
were not gang members.
1 A.D. testified under a grant of immunity.
3
At trial, A.D. admitted she had changed her story several
times. She had initially told an officer she was not in Cordero’s
car at the time of the shooting. She also testified she had
provided incorrect information during her initial interview
because she was scared. She testified, “[P]eople are threatening
me.” A.D. also testified at the preliminary hearing that she
was not sure whether Gomez handed over a gun and explained
her preliminary hearing testimony was the product of fear.
The officer who interviewed A.D. testified A.D. initially told
him she left Cordero’s car before anything happened. Later, A.D.
told the officer Cordero asked Gomez for the gun and Gomez
handed the gun to Cordero. Another officer testified that it is not
safe for a person to testify against a gang member in court.
Officer Dexter Cole testified he interviewed Jesus about the
fight. Jesus said as he was walking home from school, someone
jumped him and said something like, “This is Cherryville.”
Officer Cole testified Cherryville and Happy Town are “bitter
enemies.” Cole further testified that an “attack on the little
brother of a gang member” would be “cause for payback.”
“Payback” means “retaliation.” Cole explained that the
reputation of a hard core gang member who did not revenge an
attack on his brother would suffer. Officer Cole opined the
crimes were committed for the benefit of, or in association with,
the Happy Town gang. He further explained that when a gang
member kills someone, it benefits the gang because it intimidates
others in the neighborhood.
Cordero and Gomez were jointly tried. The jury convicted
Gomez of first degree murder of Valdez, the willful deliberate and
premeditated attempted murder of Segura, and shooting at an
occupied vehicle. With respect to each crime, the jury found true
4
a gang enhancement and that Gomez had furnished a firearm
“for the purpose of aiding, abetting or enabling that person to
commit a felony. . . .”2
The court sentenced Gomez to 25 years to life for the
murder and an additional two years for the firearm
enhancement. The court sentenced him to life in prison with the
possibility of parole for the attempted murder. Finally, the court
sentenced Gomez to a consecutive five-year-determinate term on
the conviction of shooting at an occupied vehicle.
2. Gomez’s petition for resentencing
In 2019, Gomez petitioned for resentencing pursuant to
Penal Code3 section 1170.95, now numbered section 1172.6. The
trial court denied the petition at the prima facie stage and this
court reversed that order. (People v. Gomez (Oct. 23, 2020,
B303445) [nonpub. opn.] [Gomez II].) We reasoned the trial court
had instructed the jury on the natural and probable consequences
theory and the true finding on the firearm enhancement did not
necessarily show Gomez acted with intent to kill.4 (Gomez II, at
pp. 4, 11–12.)
2 The jury convicted Cordero of the same crimes and found
he personally used a firearm in the commission of the offenses.
The jury also found true the gang enhancement true.
3 Unless designated otherwise, all statutory references are
to the Penal Code.
4 We also held that former section 1170.95 did not include
attempted murder. (Gomez II, supra, B303445, at p. 13.)
Subsequent to our opinion, the Legislature amended the statute
to include attempted murder. (People v. Montes (2021)
71 Cal.App.5th 1001, 1006.)
5
Upon remand from Gomez II, the trial held an evidentiary
hearing pursuant to section 1172.6, subdivision (d)(3). The
prosecution relied on the transcript from Gomez’s jury trial. The
prosecutor argued Gomez was an aider and abettor to the murder
and attempted murder.
At the resentencing hearing, two witnesses testified for
Gomez. Cordero testified that after he heard his brother Jesus
had been assaulted, he wanted to check on his brother at school
and asked Gomez to accompany him. When Cordero spoke to his
brother, Jesus said “Cherryville” had attacked him. After they
left the school, they observed a truck on the road and a girl in the
car said, “That’s them.” Cordero asked Gomez for the gun and
Gomez refused to give it to Cordero. Cordero “yanked” the gun
from Gomez’s hands and Cordero then shot the gun. Cordero also
testified he “threatened” Gomez so that Gomez would give him
the gun.5 Cordero further testified he and Gomez were members
of the Happy Town gang and Gomez accompanied him to “back
[him] up.”
Katy Gaines, a clinical neuropsychologist whose report was
also admitted into evidence, concluded: “It is likely that, as a
minor, Mr. Gomez suffered from behavioral and emotional
deficits as a result of the cumulative impact of several and
significant factors known to negatively impact development;
alcoholic and violent father, family separation, financial
hardship, lack of a positive male role model, academic difficulties,
and growing up in gang-infested schools and neighborhoods. The
above factors are known risk factors to drug use, gang
5 Also admitted at the evidentiary hearing was Cordero’s
2018 parole hearing transcript in which he reiterated that he
forcibly took the gun from Gomez.
6
involvement, and crime. Young males without the presence of a
male role-model are often impressionable and susceptible to
influence, seeking to belong and gain the approval or friendship
or recognition of other males whom they perceive as confident
and capable. Extensive abuse of drugs such as PCP and
inhalants often result[ ] in serious cognitive impairment. These
factors, along with the age-related underdevelopment of the
executive functions associated with his age at the time of the
offense, likely played a significant role in the commission of the
charged offense[s].”
3. The trial court denies Gomez’s resentencing petition
At the conclusion of the evidentiary portion of the
resentencing hearing, the trial court announced its findings. The
court acknowledged that the prosecution had the burden to prove
beyond a reasonable doubt that Gomez was guilty of murder and
attempted murder. The court stated that had it accepted
Cordero’s testimony, Gomez would be entitled to resentencing.
The court, however, rejected Cordero’s testimony finding that it
was not credible. The court stated, “I cannot place any weight
into [sic] the testimony of Mr. Cordero.” Relying largely on A.D.’s
trial testimony, the court found beyond a reasonable doubt that
Gomez harbored the intent for murder and attempted murder
and denied the petition.
DISCUSSION
In Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats.
2018, ch. 1015, § 2), the Legislature eliminated the natural and
probable consequences theory as a basis for murder. (People v.
Reyes (2023) 14 Cal.5th 981, 984.) Section 1172.6 provides a
mechanism for a person previously convicted of inter alia murder
7
or attempted murder under the natural and probable
consequences theory to petition for resentencing.6 (§ 1172.6,
subd. (a).) Under section 1172.6, a petitioner seeking
resentencing must first file a petition in the sentencing court, and
the sentencing court must determine whether the petitioner has
made a prima facie showing that he or she is entitled to relief.
(§ 1172.6, subds. (a)–(c); People v. Strong (2022) 13 Cal.5th 698,
708.) If the trial court determines the petitioner has made such a
showing, “the trial court must issue an order to show cause and
hold a hearing to determine whether to vacate the murder
conviction and to resentence the petitioner on any remaining
counts.” (People v. Gentile (2020) 10 Cal.5th 830, 853; § 1172.6,
subds. (c), (d)(1).)
When, as in this case, the trial court holds an evidentiary
hearing to determine whether a petitioner is entitled to
resentencing, “the burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is guilty of
murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019.” (§ 1172.6, subd. (d)(3).)
On appeal, Gomez argues that substantial evidence did not
support the trial court’s finding that he directly aided and
abetted the first degree murder or attempted murder. Gomez
asserts, “[T]his case came down to an issue of credibility between
Cordero and” A.D., but that the trial court erred in crediting A.D.
6 The statute also allows petitions for resentencing where
the petitioner on a murder conviction was convicted under other
theories of imputed malice. (§ 1172.6, subd. (a).) As previously
noted in the text, the prosecution’s theory was that Gomez aided
and abetted first degree murder and attempted murder.
8
Gomez contends A.D.’s testimony was “unworthy of belief”
because she “told so many stories of what occurred . . . .” (Italics
omitted.) Respondent countered that substantial evidence
supported denial of the petition as to both convictions.
We review for substantial evidence the trial court’s finding
that Gomez committed murder and attempted murder under a
currently valid theory. (People v. Reyes, supra, 14 Cal.5th at
p. 988.) Under this standard, we review the record “ ‘ “ ‘in the
light most favorable to the judgment below to determine whether
it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” ’ [Citation.]” (Ibid.)
Preliminarily, Gomez ignores that in reviewing for
substantial evidence, we do not reweigh evidence or assess the
credibility of witnesses. (People v. Brown, supra, 59 Cal.4th at
p. 106.) “ ‘[C]onflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts
upon which a determination depends. [Citation.]’ [Citation.]
‘Testimony may be rejected only when it is inherently improbable
or incredible, i.e., “ ‘unbelievable per se,’ ” physically impossible
or “ ‘wholly unacceptable to reasonable minds.’ ” ’ [Citation.]”
(People v. Ennis (2010) 190 Cal.App.4th 721, 729; see also People
v. Dalton (2019) 7 Cal.5th 166, 209.) A.D.’s testimony that she
saw Gomez hand Cordero the gun just before the shooting is not
inherently improbable even if she testified sometimes
inconsistently about the events; she explained those
inconsistencies as driven by her fear of testifying in a gang case.
9
We now consider whether substantial evidence supported
the court’s denial of Gomez’s petition as to each conviction.
A. Substantial Evidence Supports That Gomez Aided
and Abetted the Murder of Valdez
“Murder is the unlawful killing of a human being . . . with
malice aforethought.” (§ 187, subd.(a).) To be convicted as an
aider and abettor, a defendant must possess malice aforethought.
(People v. Gentile, supra, 10 Cal.5th at p. 846.) Intent to kill is
malice aforethought. (Id. at p. 844.)
Substantial evidence supported the trial court’s finding
that Gomez aided and abetted the unlawful killing of Valdez with
intent to kill. The evidence that Gomez accompanied Cordero to
avenge the assault on Cordero’s brother by a rival gang and
carried a loaded firearm he later gave to Cordera supports the
inference that Gomez harbored intent to kill. (See People v.
Canizales (2019) 7 Cal.5th 591, 602 [“Direct evidence of intent to
kill is rare, and ordinarily the intent to kill must be inferred from
the statements and actions of the defendant and the
circumstances surrounding the crime.”].) Gomez’s intent to kill a
Cherryville gang member transfers to the killing of Valdez even
though Valdez was not a gang member. (People v. Nguyen (2024)
103 Cal.App.5th 668, 680, 685 [doctrine of transferred intent
applies to aider and abettor to murder].) “ ‘When one attempts to
kill a certain person but by mistake or inadvertence kills a
different person, the crime, if any so committed, is the same as
though the person originally intended to be killed, had been
killed.’ ” (Id. at p. 680.)
Gomez’s contrary argument does not view the facts in the
light most favorable to the trial court’s order. Instead, Gomez
relies on facts most favorable to him. For example, Gomez argues
10
Cordero was on a “personal” mission. Gomez also contends he
“merely sat in the vehicle while Cordera engaged in the
shooting.” When viewed in the light most favorable to the trial
court’s order, the evidence supports the inference that Cordero
and Gomez were acting together in support of their Happy Town
gang to retaliate against the Cherryville gang because a member
of Cherryville assaulted Cordero’s brother. Gomez did not merely
sit with Cordero. He brought a loaded firearm and handed the
firearm to Cordera to enable Cordero’s shooting of Valdez.
Finally, Gomez argues there was insufficient evidence of
premeditation and deliberation. “[U]nder section 1172.6, a trial
court has two options in adjudicating a resentencing petition:
Deny the petition and leave in place the murder conviction or
grant the petition and vacate the murder conviction and
resentence the defendant on the remaining charges or target
offense or underlying felony. Reducing a first degree murder
conviction to second degree murder is not an option under
section 1172.6.” (People v. Gonzalez (2023) 87 Cal.App.5th 869,
881.) Because substantial evidence supports the trial court’s
finding that Gomez committed murder as murder is currently
defined, to wit, as an aider and abetter with intent to kill, we
do not address Gomez’s argument further.
B. Gomez Is Entitled to Resentencing on the Attempted
Murder Conviction Because There was No
Substantial Evidence of Gomez’s Intent To Kill
Segura
As to the attempted murder conviction, “the prosecution
must establish ‘the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended
killing.’ [Citation.]” (People v. Canizales, supra, 7 Cal.5th at
11
p. 602.) “To be guilty of attempted murder, the defendant must
intend to kill the alleged victim, not someone else.” (People v.
Bland (2002) 28 Cal.4th 313, 328.) The transferred intent
doctrine does not apply to attempted murder. (People v. Smith
(2005) 37 Cal.4th 733, 739–740.)
There was no evidence supporting the inference that
Gomez intended to kill Segura, who was not a Cherryville gang
member. Assuming arguendo that Cordero intended to kill all of
the passengers in the truck when he shot multiple bullets into
the truck bed, there was no evidence that Gomez shared that
intent. Evidence supporting the inference that Gomez intended
to kill the person who assaulted Jesus does not also demonstrate
that Gomez also intended to kill Segura.7
7 We do not rely on Cordero’s testimony at the evidentiary
hearing because the trial court found it not credible. In contrast,
respondent relies on portions of Cordero’s testimony from the
evidentiary hearing in arguing substantial evidence supported
the murder and attempted murder convictions. Specifically,
respondent relies on Cordero’s testimony that Gomez intended to
act as “back up” for Cordero and that they went to look for
Cherryville gang members who attacked Jesus because their
gang code required Cordero to avenge the attack. Even if the
trial court had credited that testimony, it does not support the
inference that Gomez intended to kill Segura.
12
DISPOSITION
The order denying Faustino Ramirez Gomez’s resentencing
petition on the murder conviction is affirmed. The order denying
Gomez’s resentencing petition with respect to attempted murder
is reversed. The case is remanded for resentencing consistent
with this opinion. Upon resentencing, the trial court shall
forward the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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