Filed 2/25/21 P. v. Gomez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059270
v. (Super. Ct. No. 18WF0033)
ADRIAN GOMEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Julian W.
Bailey, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
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1. Introduction
Adrian Gomez filed a notice of appeal from a judgment entered following a
jury verdict convicting him of assault with a deadly weapon and finding true the
allegation that he inflicted great bodily injury on the victim. His appointed counsel filed
a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) setting forth the facts
of the case and requesting that we review the entire record. Pursuant to Anders v.
California (1967) 386 U.S. 738 (Anders), counsel identified one issue to assist us in
conducting our independent review. Gomez was granted 30 days in which to file a
supplemental brief on his own behalf. He has not filed a supplemental brief.
We have examined the record in accordance with our obligations under
Wende and Anders and have found no arguable issues on appeal. The issue suggested by
counsel does not have merit. We therefore affirm.
2. Jury Verdict and Sentencing
Gomez was charged by information with one count of attempted murder in
violation of Penal Code sections 187, subdivision (a) and 664, subdivision (a) (count 1)
and one count of assault with a deadly weapon in violation of Penal Code section 245,
subdivision (a)(1) (count 2). The information alleged Gomez was on parole when he
committed the offenses. (Id., § 1203.085, subd. (b).) The information alleged three
enhancements: (1) as to both counts, infliction of great bodily injury on the victim (id.,
§ 12022.7, subd. (a)); (2) as to count 1, personal use of a deadly weapon during the
commission of the offense (id., § 12022, subd. (b)(1)); and (3) as to count 1, commission
of the offense willfully, deliberately, and with premeditation (id., § 664, subd. (a)). The
information also alleged that Gomez previously had been convicted of a strike offense
(id., § 667, subds. (d), (e)(1)) and a serious felony (id., § 667, subd. (a)(1)), and had
served a prior prison term (id., § 667.5, subd. (b)).
The jury found Gomez not guilty of attempted murder and of the lesser
included offense of attempted voluntary manslaughter. The jury found Gomez guilty of
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assault with a deadly weapon and found true the allegation that he had inflicted great
bodily injury on the victim. Gomez waived his right to a jury trial on the prior conviction
allegations. The trial court found the prior strike, prior serious felony, and prior prison
term allegations true and that Gomez was on parole when he committed the charged
offenses.
After denying Gomez’s motion to dismiss the prior strike, the trial court
sentenced Gomez to the upper term of four years (Pen. Code, § 245, subd. (a)(1)) which
was doubled to eight years pursuant to Penal Code sections 667, subdivisions (d) and
(e)(1) and 1170.12, subdivisions (b) and (c)(1). The court imposed a consecutive
three-year term for the great bodily injury enhancement and a consecutive five-year term
for the prior serious felony. The total term was 16 years in prison. The court dismissed
the true finding to the prior prison term enhancement. Gomez was awarded 937 days of
actual custody credits and 140 days of conduct credits, for a total of 1,077 days of credit.
The court imposed the following fines and fees: (1) a $300 parole revocation restitution
fine (id., § 1202.45) (suspended); (2) a $300 restitution fine (id., § 1202.4, subds. (a), (b)
& (d)); (3) a $40 court operations assessment (id., § 2465.8); and (4) a $30 criminal
conviction assessment (Gov. Code, § 70373).
3. Facts
Gomez lived with his mother in a single family home in Garden Grove.
Armando Salmeron and his wife and three children moved into the house in late 2017
because they had been evicted from their home and had no other place to live. Gomez’s
mother was the cousin of Salmeron’s wife. Salmeron had known Gomez since they were
children.
On the morning of January 2, 2018, Salmeron was outside and separating
aluminum cans from plastic materials. Gomez exited the house through the kitchen door,
walked over to Salmeron, who was bent down, and started stabbing him in the head with
a pocket knife. Salmeron screamed, asked what he had ever done to Gomez and then,
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after turning to face Gomez, asked what was going on and whether Gomez intended to
kill him. Gomez said nothing and continued to stab Salmeron with the knife.
Salmeron noticed blood streaming from the right side of his head near his
temple. He wrested the knife from Gomez’s hand by biting Gomez on the forearm about
three times. Gomez threw Salmeron to the ground and struck him with a closed fist.
Salmeron, with the knife in his hand, managed to get up and run to the street, where he
encountered a young man and young woman. Salmeron asked them to call the police and
told them, “[t]his guy wants to kill me.”
The young man, Max Ruiz, and the young woman, his sister Sylvia
Mendoza, had been driving to Enterprise Rent-A-Car. Mendoza parked the car, and
when Ruiz exited it, he heard someone screaming in English and Spanish for help. Ruiz
turned and observed Salmeron, with blood dripping from his head, standing in the street
and screaming for help. When Ruiz asked Salmeron what had happened, he replied, in
Spanish, “[h]e’s stabbing me.” Salmeron momentarily sat on the curb, then got up and
walked to a child’s table at a nearby house.
Ruiz saw Gomez run toward the house to which Salmeron had fled. Ruiz
looked at Gomez and asked, “[h]ey, what’s going on?” and “[w]hat are you doing?” Ruiz
told Gomez the police were on their way. Gomez left, walked up a driveway, temporarily
disappeared from sight, reemerged, and took off running up the street.
Maria Delgado, who had known Gomez and his mother for 20 years, lived
at a house across the street from Gomez’s house. Delgado heard people talking and
banging loudly on the door. She stepped outside into a little patio and saw Salmeron,
seated at a small children’s table, with a lot of blood on him. He set a knife on the table
and asked Delgado to get his children.
Garden Grove Police Officer Jeremy Morse arrived at the scene, where he
found Salmeron seated at a table and bleeding profusely. A black folding knife was next
to him. Police detective Richard Desbiens also arrived at the crime scene. Video
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surveillance footage from a medical supply store showed Gomez walking northbound on
Brookhurst Street, then proceeding west across the northbound lane to the center median,
and then continuing north.
Bharath Chakravarthy, an emergency department physician, treated
Salmeron for his injuries. Salmeron had eight stab wounds or lacerations, including one
just below the clavicle, one in the back of the head, and two to the right scalp.
4. Issue Suggested by Counsel
Gomez’s counsel has brought the following issue to our attention: “Was
the jury instruction for assault with a deadly weapon prejudicially erroneous because a
pocket knife is not a deadly weapon as a matter of law?” The issue has no merit. An
instrumentality that is not inherently dangerous, such a pocket knife, may be considered a
dangerous or deadly weapon if it is capable of being used in a dangerous or deadly
manner and the evidence shows its possessor intended to use it as such. (People v.
Burton (2006) 143 Cal.App.4th 447, 457.) The jury was instructed consistently with this
principle.
5. Disposition
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
MOORE, ACTING P. J.
IKOLA, J.
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