People v. Gomez
| Decision Date | 07 October 2013 |
| Docket Number | B235186 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. EDGAR GOMEZ, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed as modified.
Law Offices of Okabe & Haushalter, Mark J. Haushalter, Brian A. Newman and Christine J. Esser for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Edgar Gomez appeals from a judgment of conviction entered after a jury trial. The case involves a gang-related shooting that was caught on video camera. The primary issue at trial was the identity of the killers.
The jury convicted Gomez of first degree murder (Pen. Code, § 187) and found true the allegations he personally and intentionally discharged a firearm in the commission of the crime (id., § 12022.53, subds. (d), (e)) and committed the crime for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)(C)). The trial court sentenced Gomez to state prison for a term of 50 years to life.
On appeal, Gomez challenges the sufficiency of the evidence to support his conviction. He also argues that the judgment should be reversed because of evidentiary error, prosecutorial misconduct, ineffective assistance of counsel, sentencing error, judicial bias, and an erroneous restitution order. We correct the amount of the restitution order and otherwise affirm the judgment.
On July 29, 2008 at approximately 8:00 p.m. two members of the Eastside Trece gang murdered Marcus Van Ellis because he was wearing red, the color of a rival gang. The two gang members shot 10 to 15 rounds at Van Ellis as he fled. Van Ellis was shot five times, including once in the back. Van Ellis was transported to Los Angeles County Medical Center, where he was pronounced dead at 9:45 p.m. from multiple gunshot wounds.
The murder occurred on East Adams Boulevard between Stanford Avenue to the west and Griffith Avenue to the east, about 100 feet from the Griffith Avenue intersection. Ace Liquor is at the northwest corner of the Griffith Avenue intersection, a childcare center is west of the liquor store at 853 East Adams Boulevard, and a singlefamily residence is west of the childcare center, at 847 East Adams Boulevard. Van Ellis was shot in front of the single family residence. The East Side Trece gang, a Latino gang, and the 20 Outlaws, an African-American gang, controlled the area where Van Ellis was killed.
Erick Cuevas was watching television in his third-floor apartment on the south side of East Adams Boulevard, west of Griffith Avenue, when he heard a gunshot and looked out the window. He saw an African-American man running west on Adams in the middle of the street, approximately 20 to 30 feet from Cuevas. It was still daylight and there was nothing obstructing his view. Cuevas saw two Latino men wearing blue clothing running from the southwest corner of Adams and Griffith and chasing the African-American man. They had their arms extended and fired 10 to 15 shots. The two Latino men appeared to say something, but Cuevas could not hear what they said. After the African-American man fell to the ground, the two Latino men ran back toward Griffith. Cuevas then heard the sound of screeching tires.
According to Cuevas, one of the Latino men was 25 to 26 years old, five feet, four or five inches tall, with a "thicker" build, wearing long baggy pants and a blue hat. The other man was 20 to 22 years old, about the same height, with a "skinny" build, wearing baggy checkered shorts down to his ankles. Cuevas' brother called the police to report the shooting.
Arlene Stewart was at a telephone booth near a Tam's hamburger stand at 28th Street and Central Avenue when a black Cadillac caught her attention.1 The Cadillac washeaded west on 28th Street, and it turned right toward East Adams Boulevard. The Cadillac "wasn't going that fast," and Stewart felt
The driver's side window was halfway down, and Stewart saw three Latino men in the car. She recognized Gomez, who was sitting in the back seat, as someone she had known for several years, although she did not know his name. She also recognized the Cadillac because she had seen it before in the neighborhood. She "stood out in the street to watch" the car because she "was kind of leery that something was wrong."
As Stewart was walking north toward 27th Street she saw the Cadillac turn left into a Valero gas station on the southwest corner of East Adams Boulevard and Central Avenue or into an alley near the gas station. A "few seconds later, [she] heard a whole bunch of gunshots." She got scared and ran to a friend's house nearby.
Jose Ramirez was jogging in the area of East Adams Boulevard and Griffith Avenue. He grew up in the area and frequently ran five to six miles a day in the neighborhood. At the time Ramirez was in the police academy, and he subsequently became an officer with the Los Angeles Police Department.
As Ramirez was jogging on East Adams Boulevard approaching Stanford Avenue he saw two young Latino men with thin builds wearing baggy clothing and looking upset. Ramirez observed that "they immediately looked like they were canvassing the area, looking for someone," and that "one of the suspects had their hands inside their pockets," so he "stepped on to the street, kind of a way of showing them respect" in order to avoid any trouble. Ramirez saw them Ramirez nevertheless made eye contact with one of the men, whom he later identified as Gomez. He described Gomez as bald with a dark complexion, wearing a hooded sweatshirt and baggy jeans. After they passed by, Ramirez "continued running, and stepped back on to the sidewalk."
Ramirez heard what sounded like gunfire or fireworks. He kept on running, thinking the noise was probably fireworks because "it's really common in the area for people to be popping fireworks." When he reached Stanford Avenue, he stopped. Someone told him, "You almost got shot." He looked back and saw the two Latino men running the other way. A group of people was gathering about 100 feet from the Griffith Avenue intersection.
Officer Sharlton Wampler was one of the first officers to arrive on the scene. He observed Van Ellis unconscious on the sidewalk and a group of 10 to 15 people "at varying distances approaching to see what had happened." Other officers began to arrive quickly. Officer Wampler interviewed two witnesses, Luis Salas and Trevon Smith, who gave him information about a black Cadillac. Officer Wampler had stopped a black Cadillac containing two "individuals that were from a gang within that certain area" several weeks earlier.
Homicide Detective Rudolfo Chong, who was assigned to investigate the shooting, arrived at about 11:10 p.m. and spoke with officers on the scene. Detective Chong obtained the evidence the officers had collected from the area, including bullet jackets and fragments, but no expended shell casings. He observed bullet holes and impact marks at the childcare center and the residence to the west of it. He also observed bullet holes in and bloodstains on a car parked in a driveway just to the west of the residence.
One of the officers at the scene told Detective Chong that the security camera at the childcare center might have recorded the shooting. Detective Chong contacted the owner of the center and was able to view the video recording. The recording showed an unidentified Latino man wearing orange shorts, standing next to a black truck parked on the north side of the street. It also showed two men chasing Van Ellis. One of the twomen appeared to be about five feet, four inches tall. The other man was about five feet, six inches tall and thinner. Gomez is five feet, one inch tall.
The recording showed Van Ellis wearing a black shirt and red shorts. In that area red shorts signify the Rolling 20's Blood gang. Detective Chong determined that Van Ellis was not a gang member, but he lived at 817 East Adams Boulevard, which was a Rolling 20's hangout.
The recording also showed a dark-colored Cadillac with soft or different-colored top. Detective Chong was interested in the car because the shooters came into the picture about 30 seconds after the Cadillac turned onto Griffith Avenue. After the shooting, the shooters ran back in the direction the Cadillac had travelled.
Detective Chong spoke to Officer Wampler, who told him he had stopped a black Cadillac with East Side Trece gang members in it in the same area. He had written a ticket and impounded the Cadillac. He remembered that the registered owner of the Cadillac lived on City Terrace Drive.
Detective Chong then spoke to Luis Salas, one of the witnesses who had spoken to Officer Wampler about the black Cadillac on the night of the shooting. Salas said that the car was a green Cadillac with a brown top, and he had seen it driven by an older man who worked at the police garage. Salas also said that the suspects had entered...
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