Filed 11/23/20 P. v. Gomez CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B300407
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA450819)
v.
MAXSIMILIANO GOMEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Affirmed in part,
reversed in part, and remanded with instructions.
John F. Schuck, 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, Senior
Assistant Attorney General, Marc A. Kohm and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Maxsimiliano Gomez was
convicted, by jury, of shooting a firearm in a grossly negligent
manner, in violation of Penal Code section 246.3, subdivision (a),
and by no contest plea of possession of a firearm with a prior
violent conviction.1 Defendant’s sentence was enhanced by five
years for a prior serious felony conviction. (§ 667, subd. (a).) On
appeal, defendant contends: (1) there was insufficient evidence
he was the shooter; (2) the prior serious felony enhancement
must be reversed because, even with a jury waiver, no court trial
was ever held; and (3) the prior serious felony enhancement does
not apply because his current felony conviction was not proven to
be serious. We remand for a trial on the prior serious felony
enhancement and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Shootings
Defendant was prosecuted for two shootings outside a
party. The facts, as revealed at trial, were relatively simple.
On the evening of July 16, 2016, people gathered outside a
house for a teen’s birthday party. There was a quarrel that
involved defendant, and the man acting as security for the party
forced defendant to leave. As he was being kicked out of the
party, defendant said he would come back. Defendant left in a
white Chevrolet truck. Surveillance video confirms this;
defendant arrived at the party at 11:37 p.m. and returned to his
truck at 11:52.2
1 All undesignated statutory references are to the Penal
Code.
2 Neither party requested the exhibits be transmitted to this
court for our review. We therefore refer to the detective’s
narration of the events while playing the video clips at trial.
2
Defendant drove off, but returned in a few minutes. When
he came back, he exited his truck, racked his gun, and fired
multiple times in the air. Defendant subsequently admitted to
police that he fired one shot in the air outside the party. No
charges related to this first shooting are at issue in this appeal.
The relevant shooting is the second one. After shooting in
the air, defendant got back into the truck. Another man entered
the passenger side of the vehicle, and defendant drove off.
Within minutes, defendant’s truck returned. While driving past
the partygoers on the sidewalk, defendant shot twice out of the
driver’s side window of the truck. Although no witness
specifically identified the shooter, the surveillance video
indicated only a short time had elapsed between when defendant
drove off after the first shooting and when the muzzle flashes
came from the driver’s side window of the same vehicle in the
second shooting.
2. The Charges
Defendant was charged by amended information with:
Count 2 – attempted premeditated murder of a John Doe for
firing into a crowd (§§ 664/187); Count 4 – shooting from a motor
vehicle (§ 26100, subd. (c)); Count 5 – possession of a firearm
with a prior violent conviction (§ 29900, subd. (a)(1)); and
Count 6 – assault with a firearm (§ 245, subd. (a)(2)). Defendant
had suffered a prior conviction for second degree robbery.
(§ 212.5, subd. (c).) In the information, the robbery prior was
alleged three times: (1) the prior violent offense for the
possession of a firearm charge; (2) a prior strike within the
meaning of the three strikes law (§ 667, subds. (b)-(i)) with
respect to all counts; and (3) a prior serious felony within the
meaning of section 667, subdivision (a) (“667(a)”), with respect to
all but the possession of a weapon offense. Various firearm
enhancements were also alleged.
3
3. Defendant’s Partial Plea
Defendant pleaded no contest to count 5, possession of a
firearm with a prior violent conviction. He specifically admitted
the allegation that his prior conviction was for second degree
robbery. In the course of the plea, the court advised defendant
that he was, in effect, admitting a strike prior; defendant stated
he understood. No mention was made, at this point, that the
prior would also constitute a serious felony under section 667(a).
4. Partial Acquittal and Jury Instructions
The case proceeded to a jury trial on the remaining counts.
At the close of evidence, the court granted defendant’s motion for
acquittal on the attempted murder count (count 2).
As to the count of shooting from a motor vehicle, the court
instructed on the lesser included offense of shooting a firearm in
a grossly negligent manner.3 The court was very clear that this
crime could only be considered as lesser to the offense of shooting
from a vehicle, and related only to the second shooting, not the
first. The jury submitted a question: “Does the lesser offense of
shooting a firearm in a grossly negligent manner require the
defendant to shoot from a vehicle?” The court responded, “No.
But this relates only to count four [which charged shooting from a
vehicle] which involves the shots where the muzzle flashes are
observed.”
The jury was also instructed on personal use of a firearm.
As relevant to this appeal, the jury was specifically asked to
determine whether defendant had personally used a firearm in
connection with the lesser offense of shooting a firearm in a
grossly negligent manner.
3 At trial, defendant objected to the instruction, questioning
whether the offense was truly lesser included. He does not
pursue this argument on appeal.
4
5. Verdicts
The jury found defendant not guilty of shooting from a
vehicle (count 4), but guilty of the lesser included offense of
willfully discharging a firearm in a grossly negligent manner.
The jury found true the allegation that this was a serious felony
because defendant personally used a firearm. Defendant was
found not guilty of assault with a firearm (count 6). Between his
partial plea and the jury verdict, defendant was convicted of
possession of a firearm with a prior violent conviction and
willfully discharging a firearm in a grossly negligent manner as a
serious felony.
6. Defendant Waives Jury on Priors
After the verdicts, the court, outside the presence of the
jury, asked if defendant wanted to waive jury or admit the priors.
Defense counsel stated twice that defendant wanted to waive.
The court stated, “Mr. Gomez, you have the right to have a jury
determine the truth of the priors alleged in this case. Do you
waive that right with the understanding that the Court alone will
make that determination? I still have to be convinced based upon
whatever documentary evidence is presented as to whether the
priors are true or not.” Defendant waived, and the prosecutor
joined. The jurors returned to the courtroom and were excused.
The court then indicated it would set a date “for any
post[]trial motions, probation and sentencing.” The following
colloquy occurred:
“[The Prosecutor]: Your Honor, we’re not going to have a
prior[s] trial[]; correct?
“[Defense Counsel]: I’m going to stipulate.
“[The Prosecutor]: He already admitted when he was
pleading.
“[The Court]: He already admitted, correct. I don’t know if
you want to do that now or do you want to wait.”
5
Defense counsel wanted to speak to the departing jurors, so
no further proceedings were held at that point.
7. Sentencing Hearing
At the next hearing, the court asked, “What’s happening?”
The prosecutor responded, “Your Honor, today is sentencing. He
previously admitted to two strike priors – a strike prior. And he
pled to possession of a gun charge. And he was convicted of
negligent discharge with a personal allegation as true.” The
court asked defense counsel if he was ready to proceed. Counsel
responded by asking the court to exercise its discretion to stay
the prior serious felony enhancement. Neither the court nor
either party noticed that the court trial on this prior serious
felony enhancement had not been held. Nor did defendant
stipulate to the prior.
Defendant was sentenced to 11 years in prison, calculated
as the upper term of 3 years for willful discharge of a firearm in a
grossly negligent manner, doubled for the strike, plus 5 years for
the prior serious felony enhancement. A 6-year term for
possession of a firearm with a prior violent offense (3 years,
doubled for the strike) was stayed under section 654.
Defendant filed a timely notice of appeal.
DISCUSSION
On appeal, defendant makes three arguments: (1) there is
insufficient evidence that he was the shooter in the second
shooting; (2) the court trial on his prior serious felony was never
held and he did not otherwise admit the prior; and (3) his current
conviction was not proven to be a serious felony, so the five-year
prior must be stricken.
1. Sufficient Evidence Supports the Jury’s Verdict that
Defendant was the Shooter
Defendant argues there is insufficient evidence that he was
the shooter in the second shooting; he suggests the possibility
6
that he switched places with his passenger when the vehicle was
out of view of the security cameras, so the other man was the
actual shooter.4 He relies on evidence that a passenger was seen
getting into the truck following the first shooting.5
“ ‘In reviewing a claim for sufficiency of the evidence, we
must determine whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime or special
circumstance beyond a reasonable doubt. We review the entire
record in the light most favorable to the judgment below to
determine whether it discloses sufficient evidence—that is,
evidence that is reasonable, credible, and of solid value—
supporting the decision, and not whether the evidence proves
guilt beyond a reasonable doubt. [Citation.] We neither reweigh
the evidence nor reevaluate the credibility of witnesses.
[Citation.] We presume in support of the judgment the existence
of every fact the jury reasonably could deduce from the evidence.
[Citation.] If the circumstances reasonably justify the findings
made by the trier of fact, reversal of the judgment is not
warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.’ [Citation.]
‘Apropos the question of identity, to entitle a reviewing court to
set aside a jury’s finding of guilt the evidence of identity must be
so weak as to constitute practically no evidence at all.’
4 The jury was not instructed on aiding and abetting.
5 Defendant also argues that police recovered two bullet
casings of different calibers which could not have been fired from
the same gun. Testimony on whether a second person fired shots
from or near the truck was inconsistent. One of the partygoers
told police that, in the chaos when defendant was shooting, “I
guess some people were shooting back.”
7
[Citations.]” (People v. Mohamed (2011) 201 Cal.App.4th 515,
521.)
This much is undisputed: the truck belonged to defendant’s
girlfriend; she let him drive it. Defendant came to the party and
was thrown out less than 20 minutes after he arrived. He
threatened to return. Minutes later he stood outside the party
with a gun and fired in the air. He got back into the driver’s side
of the truck and drove off. Very shortly thereafter, the same
vehicle returned to the same party and the driver fired shots at
the partygoers before speeding off. The jury reasonably found
from these facts that defendant was the shooter.
We also observe that a careful examination of the evidence
shows that defendant’s alternative scenario, of defendant and his
passenger switching positions, is improbable at best, and
certainly one the jury could have reasonably rejected. When
defendant stood by his truck and shot at the party, the truck was
facing east. The video confirms that another male was standing
near the driver’s side and circled around to enter the vehicle on
the passenger side. The first surveillance video indicates the
truck drove off at 11:57 and 10 seconds. The truck is then seen
coming back on video, this time facing west, at 11:57 and 45
seconds. The second video confirms that shots were fired from
the driver’s side on this pass by the house. In short, the truck
was out of frame for 35 seconds. During that time, the vehicle
had to turn around. Defendant’s briefs on appeal posit that he
stopped the vehicle and the two men switched places, in addition
to turning the vehicle, all during that half a minute. There was
no evidence to support this theory, and no jury could reasonably
infer those facts.6
6 Defendant superficially suggests that “[f]or all the evidence
shows, it was the passenger that shot out of the window and
8
2. The Prior Serious Felony Enhancement
Section 667(a)(1) provides, in pertinent part: “Any person
convicted of a serious felony who previously has been convicted of
a serious felony in this state . . . shall receive, in addition to the
sentence imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought
and tried separately.” Defendant challenges both parts of this
statute – that is, he questions the proof that he was previously
convicted of a serious felony and that his current conviction was
for a serious felony.
A. The Prior Conviction was Not Proven to be a
Serious Felony For Count 5
At trial, the parties agreed that there would be a court trial
on defendant’s prior felony convictions, and defense counsel
indicated that he was prepared to stipulate to the truth of the
allegation. However, as the Attorney General concedes, “the
court and parties moved to sentencing without having a
proceeding where counsel stipulated during a court trial on the
prior conviction allegations.” The Attorney General nonetheless
argues that remand for a court trial is “unwarranted” as the
court would have “inevitably” found the prior conviction true.
The Attorney General cites no law for the proposition that the
failure to hold a trial can be considered harmless under any
circumstance, and independent research discloses none.7
whose gun made the muzzle shots seen on the video.” This, too,
is speculative.
7 The prosecution cites only People v. Saunders (1993)
5 Cal.4th 580, 589–590, which held that a defendant can forfeit
the statutory right to have the same jury that resolved guilt try
the issue of prior conviction allegations, by failing to object to the
discharge of the jury before a bifurcated trial was held. We fail to
see the relevance. The defendant in Saunders ultimately had a
9
The Attorney General points out that, in the course of his
plea to possession of a firearm with a prior violent conviction,
defendant admitted the robbery prior. Since robbery is a serious
felony (§ 1192.7, subd. (c)(19)), the prosecution suggests the truth
of the prior has been effectively admitted. But our Supreme
Court has explained that when a defendant is admitting the
truth of a prior conviction allegation that subjects him to
increased punishment, the defendant must be “advised of ‘the full
penal effect of a finding of the truth of an allegation of prior
convictions.’ [Citation.] We held ‘as a judicially declared rule of
criminal procedure’ that an accused, before admitting a prior
conviction allegation, must be advised of the precise increase in
the prison term that might be imposed, the effect on parole
eligibility, and the possibility of being adjudged a habitual
criminal. [Citation.]” (People v. Cross (2015) 61 Cal.4th 164,
170–171.) Here, when defendant pled no contest to possession of
a firearm with a prior violent conviction, he was advised that
admitting the prior violent conviction constituted the admission
of a strike, and he admitted the prior with that understanding.
But he was not advised that admitting the prior in that context
also meant that he was admitting it for the purposes of section
667(a), and that he would therefore be eligible for an additional
five years in prison if he was eventually convicted of a serious
felony at trial. In the absence of such advisement, we cannot find
that defendant knowingly admitted the prior serious felony.
jury trial on the priors; the court simply rejected his argument
that he could complain about the violation of his statutory right
to have the priors tried before the same jury that convicted him of
the current offense in the absence of a timely objection to the
discharge of that jury.
10
We remand to allow the prosecution to decide if it elects to
re-try the prior serious felony allegation.8 (See People v.
Barragan (2004) 32 Cal.4th 236, 241, 244–245 [retrial of a
enhancement allegation is permissible and does not violate state
or federal due process or double jeopardy].)
B. The Lesser Included Offense was Proven a
Serious Felony
Defendant was found not guilty of shooting from a vehicle
in count 5 but was convicted of the lesser included willful
discharge of a firearm in a grossly negligent manner. This lesser
offense is not necessarily a serious felony for purposes of the
section 667(a) enhancement, but it can be if the defendant
personally used a firearm. (§ 1192.7, subd. (c)(8); People v.
Bautista (2005) 125 Cal.App.4th 646, 654–655.) Here, the jury
specifically found true “that the offense is a serious felony in that
the defendant personally used a firearm during the commission
of the offense within the meaning of [P]enal [C]ode section
1192.7[, subdivision.] (c)(8).” It was therefore proven to be a
serious felony.
Defendant, apparently overlooking this jury finding, argued
in his supplemental opening brief on appeal that the jury made
no finding that he personally used a firearm. In the course of
that argument, he stated, “Here the issue of personal use was
never charged as to counts 4 and 5 nor was the issue ever
submitted to the jury.” The latter point is plainly wrong. As for
the passing reference to the personal use allegation not having
8 The prosecution argues that if we do not find the error
harmless, we should reverse for the agreed-upon court trial.
Although defendant offers an additional reason for the
inapplicability of the prior serious felony enhancement, to which
we next turn, he does not respond to the Attorney General’s
argument that further proceedings are the appropriate remedy.
11
been alleged, defendant cites neither to the record nor to any
legal authority on the point. For example, he does not address
the rule that allows informal amendments if there is no prejudice
to the defendant. (See People v. Anderson (2020) 9 Cal.5th 946,
958; People v. Toro (1989) 47 Cal.3d 966, 976, disapproved on
another point by People v. Guiuan (1998) 18 Cal.4th 558, 568,
fn. 3.)9
We may treat as waived any contention not supported by
legal argument and citation of authority. (People v. Jacobs (2013)
220 Cal.App.4th 67, 77.) To the extent defendant can be said to
have raised the point in his reply brief, a point raised for the first
time in reply is deemed waived in the absence of good cause.
(People v. Clayburg (2013) 211 Cal.App.4th 86, 93.) There is no
good cause here.
DISPOSITION
The five-year prior serious felony sentence enhancement is
reversed and the matter remanded for the District Attorney to
decide whether to proceed with a bench trial on the prior serious
felony. In all other respects, the judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J. KIM, J.
9 Here an informal amendment alleging the lesser as a
serious felony due to personal use of a firearm (§ 1192.7, subd.
(c)(8)) would not have enhanced the risk of a greater sentence to
defendant. The charged offense was already alleged to be a
serious felony, albeit under a different subdivision (§ 1192.7,
subd. (c)(36)).
12