People v. Gomez CA6

Filed 2/17/22 P. v. Gomez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048183
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS002126B)
v.
PEDRO JESUS GOMEZ,
Defendant and Appellant.
MEMORANDUM OPINION1
A jury found defendant Pedro Jesus Gomez guilty of attempted murder in 2001.
(Pen. Code, §§ 187, subd. (a), 245, subd. (b), 664.)2 The jury also found true the
allegations that Gomez committed the offenses for the benefit of, at the direction of, and
in association with a criminal street gang, and that he intentionally and personally
discharged a firearm causing great bodily injury. (§§ 186.22, subd. (b)(1), 12022.53,
subd. (d).) The trial court imposed an aggregate term of life consecutive to terms of
25 years to life for the firearm enhancement and 10 years for the gang enhancement. The
court also imposed a nine-year term on the assault count, plus two consecutive 10-year
1
We resolve this case by memorandum opinion under California Standards of
Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th
847, 853-855.)
2
Subsequent undesignated statutory references are to the Penal Code.
enhancements for the gang and firearm enhancements for a term of 29 years, which the
court stayed under section 654.
In 2018, the Secretary of the California Department of Corrections and
Rehabilitation (the Secretary) recommended to the trial court that it recall Gomez’s
sentence and resentence him under section 1170, subdivision (d). The Secretary’s letter
stated the trial court should not have imposed terms for both the firearm enhancement and
the gang enhancement because both enhancements were based on Gomez’s use of a
firearm during the commission of a single offense. (See People v. Rodriguez (2009) 47
Cal.4th 501 [because both enhancements were based on the defendant’s use of a firearm
during the commission of a single offense, only the greater of the two enhancements
should have been imposed].)
After a hearing in April 2020, the trial court denied resentencing under section
1170, subdivision (d)(1). The court ruled it did not have the power to order resentencing
because doing so would interfere with our jurisdiction over the claim of sentencing error
that was pending before us in Gomez’s related habeas petition.
Gomez now appeals from this denial. The Attorney General concedes the claim in
part. He agrees the sentence was unlawful, but he disagrees that the trial court should
have corrected the sentence while the claim was pending before us in Gomez’s habeas
petition.
We need not resolve this claim because it has been rendered moot. In January
2022, we granted relief in response to the petition for writ of habeas corpus that Gomez
filed in this matter, and we vacated the judgment of conviction in the underlying case. 3
Having vacated the conviction underlying the challenged sentence, we can no longer
grant the requested relief. “[W]hen, pending an appeal from the judgment of a lower
court, and without fault of the [respondent], an event occurs which renders it impossible
3
(In re Gomez (Jan. 6, 2022, H047413) [nonpub. opn.].)
2
for [the reviewing court] if it should decide the case in favor of [appellant], to grant
[appellant] any effectual relief whatever, the court will not proceed to a formal judgment,
but will dismiss the appeal. [Citations.]” (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d
129, 132.) Accordingly, we will dismiss the appeal as moot.
DISPOSITION
The appeal is dismissed as moot.
3
_______________________________
Greenwood, P. J.
WE CONCUR:
______________________________________
Elia, J.
______________________________________
Danner, J.
People v. Gomez
No. H048183