People v. Gomez CA2/6

Filed 9/15/21 P. v. Gomez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B307396
(Super. Ct. No. CR22052)
Plaintiff and Respondent, (Ventura County)
v.
GUSTAVO GOMEZ,
Defendant and Appellant.
Gustavo Gomez appeals the trial court’s summary denial of
his resentencing petition filed pursuant to Penal Code section
1170.95.1 We conclude that the record of conviction reflects that
Gomez is ineligible for resentencing as a matter of law and that
the failure to appoint counsel to represent him was harmless
error. (People v. Lewis (2021) 11 Cal.5th 952, 974 (Lewis).) We
affirm.
All statutory references are to the Penal Code unless
1
otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
In 1987, Gomez, a Colombian national, was convicted of
second degree murder with a finding that he personally used a
deadly and dangerous weapon, a knife, during commission of the
murder. (§§ 187, subd. (a), 189, 12022, subd. (b).) The crime
involved the murder of Gomez’s erstwhile girlfriend following
theft of Gomez’s cocaine supply and cash by a friend of her
family. Gomez fled to Colombia following the murder but later
returned to the United States where he was arrested and tried.
Following his conviction, he appealed. In an unpublished
opinion, we rejected his contention that insufficient evidence
supported his conviction, as well as a contention regarding a
refused jury instruction pertaining to witness credibility. (People
v. Gomez (B028955, May 17, 1988).)2
We derive the following summary from our previous
opinion: Cheral Ann Hodges met Gomez in 1980 and began
living with him in April 1981 in a Ventura condominium. Hodges
and Gomez trafficked cocaine and Gomez also consumed it. They
traveled to Hawaii and left the cocaine and cash with Hodges’s
mother. When they returned from Hawaii, they discovered a
family friend took the cocaine and most of the cash. Gomez
blamed Hodges’s family and threatened that Hodges’s sister “will
pay [but] [n]ot with money.” (People v. Gomez, supra, B028955.)
On one occasion, Hodges’s daughter saw Gomez strike her mother
and, on another, noticed that her mother’s face was bruised.
Gomez also carried a .357 handgun.
2 We grant the Attorney General’s request to take judicial
notice of our previous opinion as well as the murder jury
instruction given at trial. (Evid. Code, §§ 459, subd. (a), 452,
subd. (d).)
2
Hodges and Gomez obtained a red 1970 Chevrolet vehicle
from Hodges’s mother as partial payment for the stolen cocaine.
In August 1981, Gomez leased an apartment for his sister. The
apartment building manager saw Gomez enter and leave the
complex on three occasions in the red Chevrolet.
In the afternoon of August 24, 1981, Gomez confirmed an
airline flight to Colombia for himself. That evening, a passerby
found Hodges’s purse with her driver’s license, checkbook, and
cash near Gomez’s sister’s apartment. Gomez drove the red
Chevrolet to the Los Angeles airport that evening and was a
passenger on a late night flight to Bogota.
For nearly a week, Hodges’s family attempted to contact
her but she did not answer her telephone. Family members then
entered the condominium and found Hodges’s body. She had
been stabbed repeatedly and struck in the head. The condition of
her body indicated she had been dead for four to 10 days and died
from a gaping knife wound to her neck that severed her carotid
artery and trachea.
Bloody footprints in the kitchen and garage were consistent
with the size and sole pattern of Gomez’s shoes found in the
dining room. There was also human blood on the accelerator
pedal of the red Chevrolet. Gomez later admitted to a crime
partner in an unrelated federal crime that he had stabbed
Hodges to death. At trial, however, Gomez testified that he loved
Hodges and was not involved in her murder.
The jury convicted Gomez of second degree murder and
found that he had personally used a deadly and dangerous
weapon. (§§ 187, subd. (a), 189, 12022, subd. (b).) The trial court
sentenced Gomez to a prison term of 16 years to life, consecutive
to a federal prison term he was serving. We affirmed the
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conviction, rejecting Gomez’s contention that Hodges was
murdered by another unidentified person. We relied in part upon
the evidence and reasonable inferences therefrom that Hodges’s
purse with important contents had been discarded near Gomez’s
sister’s apartment, bloody footprints in the Ventura condominium
were consistent with Gomez’s shoes, and the accelerator pedal in
the red Chevrolet contained human blood.
On May 4, 2020, Gomez filed a petition for resentencing
pursuant to section 1170.95. Gomez checked most of the boxes on
the form petition, alleging that he was charged and convicted of
second degree murder pursuant to theories of felony murder or
the natural and probable consequences rule. He further alleged
that he was not the actual killer, did not aid or abet the murder
with the intent to kill, was not a major participant in the felony,
and did not act with reckless indifference to human life during
commission of the crime. Gomez requested the appointment of
counsel.
On August 14, 2020, the trial court summarily denied the
petition, concluding that Gomez was ineligible for resentencing as
a matter of law. Gomez was not then present in court nor was he
represented by counsel. The court reviewed its file and our prior
appellate opinion and concluded that Gomez “was the actual
killer, was convicted of murder on a theory of being the direct
perpetrator, and not on a theory of felony murder of any degree or
a theory of natural and probable consequences.”
Gomez appeals and contends that the trial court erred by
concluding that he did not set forth a prima facie case for relief
and not appointing counsel.
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DISCUSSION
Gomez argues that the trial court’s denial of his
resentencing petition without appointing counsel or affording him
an opportunity for briefing denied him the assistance of counsel
and a fair hearing pursuant to section 1170.95 and the state and
federal Constitutions.
In 2018, the Legislature amended the felony murder and
the natural and probable consequences doctrines to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life. (Stats. 2018, ch. 1015, § 1, subd. (f);
People v. Gentile (2020) 10 Cal.5th 830, 842.) The Legislature
then amended sections 188 and 189, and added section 1170.95,
to provide a procedure to persons previously convicted of murder
pursuant to the felony murder or natural and probable
consequences theories to obtain retroactive relief. (Gentile, at
p. 853 [“the Legislature intended section 1170.95 to be the
exclusive avenue for retroactive relief under Senate Bill [No.]
1437”].) To be eligible for resentencing, a defendant must
establish that he “could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective”
as part of Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).)
Subdivision (a)(1)-(3) of section 1170.95 sets forth the
requirements for a facially sufficient petition. Thus, the
petitioner must state that the charging document allowed the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine; the
petitioner was convicted of first or second degree murder; and the
petitioner could not be convicted of first or second degree murder
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because of changes to Section 188 or 189, as effective on January
1, 2019. Subdivision (b)(1)(A) of section 1170.95 describes where
and how the petition must be filed and specifies its required
content, including a declaration by petitioner that he or she “is
eligible for relief under this section, based on all the
requirements of subdivision (a).”
If the petition meets the requirements of section 1170.95,
subdivisions (a) and (b), the trial court proceeds to subdivision (c)
to assess whether a prima facie showing for relief has been made.
In Lewis, supra, 11 Cal.5th 952, 957, our Supreme Court held
that if a defendant files a facially sufficient petition and requests
the appointment of counsel, the court must appoint counsel and
entertain further briefing. Only after the appointment of counsel
and the opportunity for briefing may the court consider the
record of conviction to determine whether petitioner made a
prima facie showing that he or she is entitled to relief. (Id. at pp.
969-970.)
The record of conviction relates to the trial court’s inquiry,
distinguishing petitions with potential merit from those clearly
meritless. (Lewis, supra, 11 Cal.5th 952, 971.) In making its
preliminary assessment regarding petitioner’s allegations, the
court does not engage in fact finding and must take petitioner’s
allegations as true. (Ibid. [prima facie bar set very low].)
However, if the record of conviction, including the court’s
documents, refute the allegations in the petition, the court may
make a credibility determination adverse to petitioner. (Ibid.)
Here Gomez’s petition for resentencing met the
requirements for sufficiency. In the petition Gomez also
requested the appointment of counsel. The trial court erred,
therefore, by summarily denying his petition without first
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appointing counsel and accepting briefing. (Lewis, supra, 11
Cal.5th 952, 969-970.) Lewis nevertheless concluded that
deprivation of a petitioner’s right to counsel is state law error
only, tested for prejudice by People v. Watson (1956) 46 Cal.2d
818. (Lewis, at pp. 972-973.) Moreover, any error in summarily
denying a section 1170.95 petition may be harmless unless the
petitioner can show “‘“it is reasonably probable that if [he or she]
had been afforded assistance of counsel his [or her] petition would
not have been summarily denied without an evidentiary
hearing.”’” (Id. at p. 974.)
We conclude that the trial court’s error in failing to appoint
counsel and accept briefing from both parties before considering
the record of conviction and summarily denying the petition is
harmless. The record of conviction unequivocally establishes that
Gomez was the actual killer. The prosecution did not charge or
rest upon any theories of a felony murder or natural and probable
consequences doctrine. Gomez cannot meet his burden of
establishing a reasonable probability that the outcome of the
proceeding would have been any different had the court
appointed counsel and accepted briefing. His argument that an
unidentified person killed Hodges while he was in Colombia does
not meet his burden of establishing statute eligibility, i.e., that he
was charged and convicted pursuant to a felony murder or
natural and probable consequences doctrine. Gomez is ineligible
for resentencing pursuant to section 1170.95 as a matter of law.
7
DISPOSITION
The order denying relief is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Derek D. Malan, Judge
Superior Court County of Ventura
______________________________
Marta I. Stanton, 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, Assistant
Attorney General, Kathy S. Pomerantz, Deputy Attorney
General, for Plaintiff and Respondent.
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