People v. Gomez

• Decision Date: 21 November 2022
• Docket Number: F082873
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CARLOS GOMEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,
v.
CARLOS GOMEZ, Defendant and Appellant.

F082873

California Court of Appeals, Fifth District

November 21, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County, No. BF180050A Judith K. Dulcich, Judge.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Kelly E. LeBel and Robert K. Gezi, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

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HILL, P. J.

INTRODUCTION

Defendant Carlos Gomez engaged law enforcement in a high-speed vehicle chase, and a jury convicted him of charges including shooting from a vehicle at a police officer with gang and firearm enhancements. Defendant argues that the evidence was insufficient to support the gang enhancements, the trial court erred in failing to bifurcate the gang enhancements from the underlying charges, and that we should overturn his convictions and remand for retrial in light of recently enacted Penal Code^[1] section 1109, which requires bifurcation of gang enhancements from the trial of the underlying charges when requested by a defendant.

The People concede that the gang enhancements are not supported by sufficient evidence but argue that the trial court did not abuse its discretion in denying defendant's motion to bifurcate the trial of the gang enhancements, section 1109 is not retroactive, and the trial court's decision not to bifurcate was harmless in any event. We reverse the true findings as to the gang enhancements and will remand for resentencing. We affirm the judgment in all other respects.

PROCEDURAL BACKGROUND

The District Attorney of Kern County filed an information on March 3, 2020, charging defendant with premeditated and deliberate attempted murder of a peace officer (§§ 187, subd. (a), 664; count 1), shooting at an occupied vehicle (§ 246; count 2), assault with a firearm on a peace officer (§ 245, subd. (d)(1); count 3), felon in possession of a shotgun (§ 29800, subd. (a)(1); count 4), and evading a peace officer (Veh. Code, § 2800.2; count 5). The information also alleged that defendant personally discharged a firearm (§ 12022.53, subd. (c)) as to counts 1 through 3 and acted to benefit a criminal street gang (§ 186.22, subd. (b)(1)) as to counts 1 through 4. Defendant pleaded not guilty to the charges and denied all allegations.

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After a 15-day trial, the jury convicted defendant on April 16, 2021, of shooting at an occupied vehicle, assault with a firearm on a peace officer, felon in possession of a shotgun, and evading a peace officer as charged in counts 2 through 5. The jury also found true the enhancements that the crimes were committed for the benefit of a criminal street gang (counts 2-4) and that defendant personally and intentionally discharged a firearm (counts 2, 3). The jury acquitted defendant of premeditated and deliberate attempted murder of a peace officer.

On June 4, 2021, the trial court denied defendant's motion to strike the gang and firearm enhancements and sentenced defendant to a term of 27 years to life as to count 2 (§§ 246, 186.22, subd. (b)(1), (4)). As to count 3, the trial court sentenced defendant to the upper term of eight years, plus five years (§ 186.22, subd. (b)(1)), plus 20 years (§ 12022.53, subd. (c)), stayed pursuant to section 654. As to count 4, the trial court sentenced defendant to the upper term of three years, plus four years (§ 186.22, subd. (b)(1)), stayed pursuant to section 654. The trial court sentenced defendant to the upper term of three years as to count 5 and ordered that term to be served consecutively to count 2, for a total term of 30 years to life in prison.

The court also imposed a $300 restitution fine (former § 1202.4), a stayed $300 parole revocation restitution fine (§ 1202.45, subd. (a)), victim restitution in an amount to be determined by probation (former § 1202.4, subd. (f)(2)), $160 in court operations assessments (§ 1465.8), and $120 in criminal conviction assessments (Gov. Code, § 70373).

Defendant filed this timely appeal on June 4, 2021.

FACTS

I. The vehicle pursuit.

On November 7, 2017, at approximately 11:15 p.m., Deputy Richard Santos of the Kern County Sheriff's Office was working patrol when he observed defendant's green

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Nissan Altima (the vehicle) driving past him. Believing that the vehicle matched that of one reported stolen, Santos activated his emergency lights to stop it. Defendant initially slowed the vehicle and pulled into a gas station but then accelerated, drove over a curb, and sped off down the street. Santos did not notice any defects in the rear window of the vehicle when he initially attempted to stop it, and the rear window of the vehicle was still intact after driving off the curb.

Defendant accelerated to approximately 65 miles per hour as Santos activated his siren and advised dispatch that he was in pursuit. Defendant turned the vehicle at an intersection and increased speed to approximately 85 miles per hour. Defendant ran the red light at the next intersection and entered the following intersection at approximately 85 miles per hour. Santos slowed through the intersection and, after checking for cars and pedestrians, saw "unknown projectiles" coming toward him as he refocused on the vehicle. Santos's patrol vehicle was approximately 15 feet from the vehicle when the projectiles hit the patrol vehicle's windshield. He immediately notified dispatch that the vehicle had cleared the intersection and was now missing its rear window.

Due to the siren and radio noise inside his vehicle, Santos did not hear any noise from outside his patrol vehicle. He did not see a shotgun or notice any muzzle flash and was not looking at the vehicle just before its rear window shattered. In addition, Santos did not expect to see a muzzle flash due to the heavy tinting on defendant's rear window, which obstructed his ability to see inside.

Kern County Sheriff's Deputies Timothy Monsibais and Christopher Gonzalez responded to assist Santos. While approximately three or four car lengths behind Santos, both deputies saw the vehicle's rear window shatter as defendant drove over a gutter line in the intersection. Monsibais observed the rear window "blow out" while Gonzalez testified that he saw the rear window "shatter and fall." Neither deputy saw a muzzle flash, and Monsibais testified that he did not hear a gunshot although he acknowledged

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that the noise inside his vehicle was very loud. Gonzalez testified that he heard a loud "boom" before the rear window broke. The deputies described the gutter line as a dip in the road. Monsibais described it as shallower than the height of a curb and testified that he did not see either the vehicle or Santos's patrol vehicle bounce as they crossed it. Nothing happened to their own patrol vehicles when they drove over the gutter line.

Defendant, the only occupant of the vehicle, continued to flee from Santos through a residential area known as Rexland Acres. Defendant continued through the area at approximately 40 miles per hour on the 25-mile-per-hour residential streets, ignoring stop signs and making quick turns. Defendant then intentionally turned off the headlights and running lights of the vehicle eliminating any outside illumination. Defendant continued to run stop signs as he drove through the neighborhood.

During the pursuit, E.S. called 911 and reported hearing gunshots near his residence, which was located along the route of the vehicle pursuit. E.S. testified that he heard one or two gunshots while lying in bed, went to the front window, then called the police. During the 911 call, E.S. reported three gunshots that he heard within 10 minutes of his call. He estimated that three or four minutes passed while he went to the window and another three or four minutes later, E.S. saw vehicles drive by, one without its lights on. E.S. saw the vehicle without its lights on twice, once with its lights on and a second time with its lights off and being followed by police. E.S. refused to provide his name to the operator and testified that it was dangerous for his family and he would not make a report again because he did not want to be in court.

The vehicle eventually entered an alleyway near a church and defendant jumped from it while the vehicle was still moving at approximately 10 to 15 miles per hour. The vehicle ultimately stopped when it collided with a chain link fence. Santos saw defendant on the ground just after defendant jumped from the vehicle. Defendant ran through a fence into a residential area, and Santos chased him on foot. Santos

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apprehended defendant after defendant ran through defendant's own backyard and into a dirt field where he fell. The foot pursuit lasted approximately one minute.

Deputies pursued the vehicle for approximately five to six miles, and six minutes elapsed from when Santos first contacted dispatch regarding the pursuit until defendant was in custody.

Santos discovered that he had been injured during the pursuit when he found a piece of glass embedded in his right ear. His face was itchy and scratchy as well, most likely from tiny particles of glass. Santos testified that the hood of his patrol vehicle was missing paint and appeared to have been struck with pellets. He also observed several large impressions on the windshield consistent with pellet strikes from a shotgun shell and two circular dents over the left rear wheel well. In addition, the left passenger side spotlight faced backwards. The spotlight is very rigid and would not have repositioned itself unless something traveling "at a good amount of speed" impacted it. Santos observed the same type of pellet splatter to the lens and housing of the spotlight.

After defendant's arrest...