People v. Gomez CA2/4

Filed 12/30/22 P. v. Gomez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B316393

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA037390)
v.

ARMANDO GOMEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Richard H. Kirschner, Judge. Affirmed.
Patricia J. Ulibarri, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________________________

INTRODUCTION
On April 29, 2002, a jury found defendant and
appellant Armando Gomez guilty of first degree murder for
his role in a late-night February 3, 2001, robbery at a self-
serve car wash where a customer was shot and killed and
Gomez’s girlfriend was shot and wounded. On August 6,
2002, the trial court sentenced Gomez to life in prison
without the possibility of parole. This court affirmed the
judgment on September 17, 2003.
On June 13, 2020, after changes in the law regarding
the natural and probable consequences doctrine and the
scope of the felony-murder rule, Gomez filed a petition to
vacate his murder conviction and for resentencing under
former Penal Code section 1170.95.1 After conducting an
evidentiary hearing, the trial court denied the petition,
concluding beyond a reasonable doubt Gomez was a major
participant in the robbery underlying his murder conviction
who acted with reckless indifference to human life.
On appeal, Gomez argues the trial court improperly
relied on hearsay evidence in denying his petition and also
that, with or without the hearsay statements, the court’s

1 Undesignated statutory references are to the Penal Code.

2
determination was not supported by substantial evidence.
We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
A. Gomez’s 2002 Murder Conviction
In 2001, Gomez, his girlfriend Claudia Venegas and
Ricardo Gomez2 were charged with the murder of Antonio
Cruz. At the preliminary hearing, the prosecution called Los
Angeles Police Department Officer Shawna Green as a
witness. Officer Green testified that, within hours of Cruz’s
murder, she and a detective conducted a recorded interview
of Ricardo after advising him of his constitutional rights.
Officer Green recounted statements made by Ricardo
describing his and Gomez’s respective roles in the robbery of
Cruz, including a statement that Ricardo was the one who
shot Cruz.
Officer Green testified that Ricardo said Gomez had
pointed out a customer at the car wash and asked Ricardo
“‘Do you want to jack him’ or steal from him,” and Ricardo
agreed. Ricardo said he then armed himself with Gomez’s
assault rifle, which he said was typically stored in the GMC
Suburban that he, Gomez and Venegas were riding in, and
loaded a clip into it. After Venegas pulled the Suburban into
the car wash and behind Cruz’s car, Gomez and Ricardo got
out of the vehicle. While Ricardo stood in front of victim

2 Because appellant Armando Gomez and Ricardo Gomez
share a surname, we refer to Ricardo by his first name.

3
Cruz with the rifle in his hand, Gomez verbally demanded
money from Cruz, then took a fanny pack from Cruz’s car.
As soon as Gomez and Ricardo re-entered the Suburban,
Ricardo saw that Cruz had approached Venegas in the
driver’s seat and that Cruz was wrestling with or hitting
Venegas (who was pregnant). Ricardo exited the Suburban
and saw that Gomez did, too. Ricardo walked around the
Suburban to its left rear side, then “shot towards where the
victim was standing inside the driver door.”
Officer Green further testified that Ricardo stated that,
upon seeing Cruz struggling with Venegas, Ricardo cocked
the rifle. Gomez walked with Ricardo to the left rear side of
the vehicle. There, Ricardo fired three shots; he believed the
first struck Venegas because he heard her scream, while the
second and third struck Cruz, who he saw bleeding. Ricardo
and Gomez got back in the Suburban and Venegas drove
away.
All three defendants were held to answer. After the
preliminary hearing, the charges against Ricardo, who was
17 years old the night Cruz was shot, were severed for
separate trial. At the joint trial of Gomez and Venegas,
Ricardo did not testify and no evidence of his out-of-court
statements was admitted.3 On direct appeal, Gomez and
Venegas challenged the sufficiency of the evidence to support
their convictions for murder committed in the commission of
a robbery. This court affirmed their convictions in an

3 Ricardo was deemed unavailable as a witness after he
asserted his Fifth Amendment right against self-incrimination.

4
unpublished opinion. (People v. Gomez (Sep. 17, 2003, No.
B161030) [2003 Cal.App.Unpub. LEXIS 8831] (Gomez I).)
As this court has previously described, there was
testimony at trial from two witnesses who lived across the
street who heard approximately four gun shots and saw a
dark-colored GMC Suburban leave the car wash. (Gomez I,
supra, 2003 Cal.App.Unpub. LEXIS 8831, at *2-*3.) One of
these witnesses saw Cruz, still alive, lying on the ground
near where the Suburban departed and had a family
member call 911. (Id. at *3.) Soon after, police officers saw a
Suburban matching the witnesses’ description driving
erratically less than two miles from the car wash. (Ibid.)
After the officers pulled the Suburban over, Gomez exited
the driver’s seat and said his girlfriend had been shot.
(Ibid.) Venegas, the owner of the Suburban, was seated in
the front passenger seat and had a gunshot wound to her
knee. (Id. at *3-*4.) Ricardo was seated in the second row.
(Id. at *4.)
Blood was found around the driver’s seat, including on
the step into the vehicle, and a trail of blood and tissue was
found between the driver’s seat and the front passenger’s
seat. (Gomez I, supra, 2003 Cal.App.Unpub. LEXIS 8831, at
*4.) DNA testing revealed that blood samples from the front
floorboard matched Venegas, while samples from the interior
of the driver’s door and window matched Cruz. (Id. at *6.)
A fanny pack containing Cruz’s credit cards and other items
was found under the second row of seats. (Id. at *6-*7.)

5
 There was a bullet hole in the lower portion of the
driver’s door, determined to have been caused by a bullet
fired from the rear of the vehicle while the driver’s door was
open. (Gomez I, supra, 2003 Cal.App.Unpub. LEXIS 8831, at
*6.) There was also evidence that a bullet struck the inside
of the driver’s side door. (Ibid.) A prosecution expert
witness opined that Cruz was standing inside the open
driver’s door when he was shot, facing the interior of the
vehicle. (Ibid.) The expert further concluded that Venegas
was seated in the driver’s seat when the shots were fired,
and subsequently moved over to the passenger’s seat. (Ibid.)
An assault rifle owned by Gomez was found in the
third row of seats, loaded with one round in the firing
chamber. (Gomez I, supra, 2003 Cal.App.Unpub. LEXIS
8831, at *4-*5.) A rifle magazine containing live
ammunition was found in a locked compartment in the
center console and matched four shell casings found at the
car wash. (Id. at *3-*5.) Ricardo’s fingerprints were
detected on the rifle. (Id. at *6.) Gunshot residue similar to
that from the live ammunition found in the Suburban was
detected on Gomez’s left hand. (Id. at *5.) A criminalist
testified that a positive gunshot residue test can result from,
inter alia, firing a weapon or being in the immediate vicinity
of a firearm when it is fired. (Ibid.)
The trial court instructed the jury that Gomez could be
convicted of murder under the felony-murder rule or the
natural and probable consequences doctrine, each premised
on the underlying robbery of Cruz. (Gomez I, supra, 2003

6
Cal.App.Unpub. LEXIS 8831, at *22.) The jury convicted
Gomez of first degree murder and found true a special
circumstance allegation that the murder was committed in
the course of a robbery within the meaning of section 190.2,
subdivision (a)(17). (Id. at *7.) The court sentenced Gomez
to life in prison without parole under section 190.2,
subdivision (a). (Id. at *29.) On direct appeal, we affirmed
the judgment. (Id. at *2, *30.)

B. Gomez’s 2020 Resentencing Petition
More than fifteen years after Gomez’s conviction, the
Legislature enacted Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (SB 1437), which eliminated the natural and probable
consequences doctrine as a basis for murder liability and
“significantly narrowed the scope of the felony-murder rule.”
(People v. Strong (2022) 13 Cal.5th 698, 703, 707, fn. 1
(Strong).) Gomez subsequently filed his petition for
resentencing under former section 1170.95, which has been
renumbered as section 1172.6. The prosecutor opposed the
petition.
At a July 13, 2021, hearing on the resentencing
petition, the trial court determined Gomez was entitled to an
evidentiary hearing. Both parties stated they did not intend
to present any new evidence at the hearing. In response to
the prosecutor’s characterization of the matter as “largely a
circumstantial evidence case where the defendant is the
actual killer or [an] aider and abettor,” the court commented,

7
“I recognize that the issue here, [to a] large extent turns
upon who the shooter was or was not.”
On August 31, 2021, Gomez filed a brief in anticipation
of the evidentiary hearing. He attached as an exhibit an
eight-page excerpt from the transcript of Officer Green’s
preliminary hearing testimony. In the opening lines of the
brief, Gomez pointed to the confession Officer Green
attributed to Ricardo, arguing: “The issue this Court is
concerned with is who is the shooter? [¶] The prosecution
omitted the elephant in the room; [¶] Ricardo [] confessed to
b[e]ing the shooter. [¶] Since Ricardo[’s] fingerprints (and
not [Gomez’s] fingerprints) were on the rif[]le the confession
is believable.” Gomez emphasized in his brief that,
according to Ricardo’s statements, Gomez never held the
rifle. Gomez argued that, based on Ricardo’s description of
what transpired, Gomez’s murder conviction could not stand.
On September 13, 2021, the prosecution filed a brief in
anticipation of the evidentiary hearing. Observing that
Gomez had provided the trial court with only part of Officer
Green’s preliminary hearing testimony, the prosecution
attached as an exhibit a transcript of four additional pages of
Officer Green’s testimony.
At the September 15, 2021, evidentiary hearing, the
court characterized Ricardo’s out-of-court statements as
hearsay but found they were nevertheless admissible in the
resentencing proceeding because there was a substantial
basis for the court to believe them to be reliable. The court
explained that “[t]he indicia of reliability in this matter

8
include the following: The statement was Mirandized and
taken a few hours after the murder when the events were
fresh. While being questioned, Ricardo was composed and
acted like an adult. And most importantly, Ricardo
confessed to being the actual shooter.” The court noted there
was also circumstantial evidence that Gomez was himself
the shooter, but concluded this evidence did not rise to the
level of proof beyond a reasonable doubt. Gomez did not
object to the court’s consideration of Ricardo’s out-of-court
statements on hearsay grounds or any other.
The prosecutor argued the evidence proved beyond a
reasonable doubt that Gomez was a major participant in the
robbery and that he acted with reckless indifference to
human life. Gomez argued the evidence showed, at most,
that Gomez participated in a garden-variety armed robbery,
and that this was insufficient to establish reckless
indifference to human life. After hearing from both sides,
the trial court denied Gomez’s petition. The court found that
the evidence, with or without Ricardo’s out-of-court
statements, proved beyond a reasonable doubt that Gomez
was a major participant in the robbery and that he acted
with reckless indifference to human life, supporting a
conviction for felony murder under current law.4

4 The court also found the evidence proved beyond a
reasonable doubt that Gomez directly aided and abetted the
murder with malice aforethought. On appeal, the Attorney
General contends substantial evidence supported this finding
under theories of express and implied malice. We need not
(Fn. is continued on the next page.)

9
 Gomez timely appealed.

DISCUSSION
Governing Law
The Legislature enacted SB 1437 “to amend the felony
murder rule and the natural and probable consequences
doctrine, as it relates to murder, 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); accord, § 189, subd. (e); People v. Lewis (2021) 11
Cal.5th 952, 959 (Lewis).) SB 1437 also added section
1170.95 to the Penal Code which, as mentioned above, was
later renumbered to section 1172.6. (Stats. 2018, ch. 1015,
§ 4; Stats. 2022, ch. 58, § 10.) This section permits
defendants convicted of felony murder or murder under a
natural and probable consequences theory, but who could
not be convicted of murder following the changes to sections
188 and 189, to petition the sentencing court to vacate the
conviction and resentence on any remaining counts.
(§ 1172.6, subd. (a).)
A petition for relief under section 1172.6 must include
a declaration by the petitioner that he or she is eligible for
relief based on all the requirements of subdivision (a), the

address these theories, as we conclude the court did not err in
finding the evidence showed Gomez was guilty of felony murder.

10
superior court case number and year of the petitioner’s
conviction, and a request for appointment of counsel, should
the petitioner seek such an appointment. (§ 1172.6, subd.
(b)(1).) Subdivision (c) of section 1172.6 provides that
“[w]ithin 60 days after service of a petition that meets the
requirements set forth in subdivision (b), the prosecutor
shall file and serve a response. The petitioner may file and
serve a reply within 30 days after the prosecutor’s response
is served. These deadlines shall be extended for good cause.
After the parties have had an opportunity to submit
briefings, the court shall hold a hearing to determine
whether the petitioner has made a prima facie case for relief.
If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order
to show cause. If the court declines to make an order to
show cause, it shall provide a statement fully setting forth
its reasons for doing so.”
“If the trial court determines that a prima facie
showing for relief has been made, the trial court issues an
order to show cause, and then must hold a hearing ‘to
determine whether to vacate the murder conviction and to
recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner
had not . . . previously been sentenced, provided that the
new sentence, if any, is not greater than the initial sentence.’
([§ 1172.6], subd. (d)(1).)” (Lewis, supra, 11 Cal.5th at 960.)
At the hearing, the parties may rely on the record of
conviction or present “new or additional evidence” to support

11
their positions, and “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder . . . under California law as
amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (d)(3).)

Analysis
On appeal, Gomez argues the trial court’s order
denying his resentencing petition should be reversed
because: (1) even if the trial court properly considered
Ricardo’s hearsay statements, there was insufficient
evidence to support a rational trier of fact finding beyond a
reasonable doubt that Gomez was guilty of felony murder
under current law; (2) the trial court erred in considering
Ricardo’s hearsay statements; and, alternatively, (3) Gomez’s
counsel for the resentencing petition proceedings was
constitutionally ineffective. For reasons discussed below, we
disagree.

A. Substantial Evidence Supported the Trial
Court’s Determination that Gomez Was a Major
Participant in the Robbery and Acted with
Reckless Indifference to Human Life
We review the trial court’s determination at the section
1172.6 (former section 1170.95) evidentiary hearing for
substantial evidence. Under this standard, we review the
entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence, that is,

12
evidence that is reasonable, credible, and of solid value, from
which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. In so doing, we presume
the existence of every fact the trier could reasonably deduce
from the evidence. (People v. Nieber (2022) 82 Cal.App.5th
458, 476.)
“[W]hen Senate Bill 1437 amended Penal Code section
189 [the felony murder statute] to incorporate major
participation and reckless indifference requirements, it
codified the understanding of those requirements elucidated
in Banks and Clark.” (Strong, supra, 13 Cal.5th at 710,
citing People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark).) In Banks, our
Supreme Court provided a non-exhaustive list of factors
relevant to determining whether an individual was a “major
participant” in an underlying felony, including: (1) the
defendant’s role in planning the criminal enterprise that led
to death; (2) the defendant’s role in supplying or using lethal
weapons; (3) the defendant’s awareness of the dangers posed
by the nature of the crime, the weapons used, or the
defendant’s past experience with the other participants;
(4) whether the defendant was present at the scene of the
killing; (5) whether the defendant’s actions or inactions
played a particular role in the death; and (6) what the
defendant did after lethal force was used. (Banks, supra, 61
Cal.4th at 803.) “No one of these considerations is
necessary, nor is any one of them necessarily sufficient.”
(Ibid.) In determining whether a defendant was a major

13
participant in an offense, the finder of fact must consider the
totality of the circumstances. (Id. at 802.)
In Clark, the Supreme Court expounded upon the
meaning of “reckless indifference to human life” and set
forth a non-exclusive list of relevant factors, including:
(1) the defendant’s knowledge of weapons used in the crime;
(2) how those weapons were used; (3) the number of weapons
used; (4) the defendant’s proximity to the crime; (5) the
defendant’s opportunity to stop the killing or aid the victim;
(6) the duration of the crime; (7) the defendant’s knowledge
of the killer’s propensity to kill; and (8) the defendant’s
efforts, if any, to minimize the possibility of violence during
the crime. (Clark, supra, 63 Cal.4th at 616-623.) Like the
Banks factors listed above, “‘[n]o one of these considerations
is necessary, nor is any one of them necessarily sufficient.’”
(Id. at 618.) “We analyze the totality of the circumstances to
determine whether [Gomez] acted with reckless indifference
to human life.” (In re Scoggins (2020) 9 Cal.5th 667, 677
(Scoggins).)
Here, the trial court analyzed the evidence in two
phases, first considering only the evidence actually
presented at trial, and then adding in Ricardo’s out-of-court
statements. In the first scenario, we conclude that there was
evidence sufficient to support each of the following
inferences: (1) the trio in the Suburban pulled into the
driveway of the car wash late at night with a plan to rob the
man washing his car there alone; (2) Gomez supplied the
assault rifle used to carry out the robbery and was

14
accordingly aware of its presence and its nature; (3) Gomez
was present for the entirety of the robbery and shooting;
(4) Gomez did not act to disrupt the chain of events, despite
being close enough to the shooting that he got gunshot
residue on his hand; and (5) Gomez fled in the Suburban
without attempting to render, or even call for, aid to Cruz,
who was visibly wounded but still alive. We accordingly
conclude that substantial evidence supported the trial
court’s determination beyond a reasonable doubt, based on
the evidence at trial, that Gomez was a major participant in
the robbery who acted with reckless indifference to human
life. (Banks, supra, 61 Cal.4th at 803 [“major participant”
factors include defendant’s role in supplying lethal weapons,
awareness of dangers posed, presence at scene of the killing,
what defendant did after lethal force was used and whether
defendant’s actions or inactions played a particular role in
the death]; Clark, supra, 63 Cal.4th at 616-623 [“reckless
indifference” factors include defendant’s knowledge of
weapons used in the crime, proximity to the crime,
opportunity to stop the killing or aid the victim, and efforts,
if any, to minimize the risk of violence during the
commission of the crime].)
Ricardo’s out-of-court statements would allow a
rational finder of fact to further infer that: (6) the presence
and participation of Venegas, whom Gomez knew was
pregnant, aggravated the already high risk of death
associated with carrying out the armed robbery; (7) Gomez
was the instigator in planning the robbery; (8) Gomez

15
actively participated in the robbery by personally demanding
Cruz’s property while Ricardo held Cruz at gunpoint and
was nearby when Ricardo walked around the car to the
position from which he shot Cruz; and (9) Gomez was aware
that Cruz was physically confronting Venegas to recover his
property, increasing the risk that Ricardo would discharge
the rifle, which risk Gomez failed to minimize by
surrendering Cruz’s property to him, telling Ricardo not to
shoot, or both. (See Strong, supra, 13 Cal.5th at 706 [“major
participant” factors include defendant’s role in planning the
underlying crime, “reckless indifference” factors include
defendant’s failure to restrain, and defendant’s proximity to
the killing is a factor in both “major participant” and
“reckless indifference” determinations].)
Gomez argues that the evidence before the trial court
here is indistinguishable from cases where courts have found
the evidence was insufficient to show a defendant was a
major participant or acted with reckless indifference to
human life. We disagree. In many of Gomez’s cited cases,
including Banks, the defendants were no more than getaway
drivers who waited for their accomplices some distance from
the crime scenes.5 In the remaining cases Gomez cites,
including Clark, the defendants similarly were not present

5 (See Banks, supra, 61 Cal.4th at 804-811; Enmund v.
Florida (1982) 458 U.S. 782, 786-788 & fn. 2, 798-801; In re
Taylor (2019) 34 Cal.App.5th 543, 557-561; In re Ramirez (2019)
32 Cal.App.5th 384, 404-408; In re Bennett (2018) 26 Cal.App.5th
1002, 1018-1026)

16
while their accomplices committed the crimes.6 ( We
conclude that, with or without Ricardo’s out-of-court
statements, substantial evidence supported the trial court’s
determination that Gomez was a major participant in the
robbery who acted with reckless indifference to human life.

B. Gomez’s Hearsay Objection Is Barred by the
Doctrines of Invited Error and Forfeiture
Gomez put before the trial court the very hearsay
evidence he now faults the court for considering, namely
Officer Green’s preliminary hearing testimony recounting
Ricardo’s out-of-court statements. Although the prosecution
subsequently put forward additional excerpts of Officer
Green’s testimony, it did so only in response to the
incomplete excerpt Gomez proffered. Had Gomez not put
Ricardo’s statements in issue, it appears the trial court
would have had no occasion to consider them. Under the
doctrine of invited error, “on appeal a litigant cannot object
to the admission of incompetent evidence offered by him.”
(Jentick v. Pacific Gas & Electric Co. (1941) 18 Cal.2d 117,
121; accord, People v. Flinner (2020) 10 Cal.5th 686, 723
[“[Defendant] cannot claim error in admission of evidence he
elicited”].)
Even where a party does not invite error, he may
forfeit an evidentiary objection by failing to raise it in the

6 (See Clark, supra, 63 Cal.4th at 618-623; In re Miller (2017)
14 Cal.App.5th 960, 964-965, 975-977; Scoggins, supra, 9 Cal.5th
667, 676-683.)

17
trial court. (See Evid. Code, § 353, subd. (a); People v.
Stevens (2015) 62 Cal.4th 325, 333.) Here, the trial court
explicitly recognized that Ricardo’s statements were hearsay
and found them admissible after identifying several indicia
of reliability. Gomez did not then object. At the time of the
evidentiary hearing, former section 1170.95 did not explicitly
address the admissibility of hearsay, as section 1172.6 now
does. (See former § 1170.95, subd. (d)(3).) But courts had
already interpreted former section 1170.95 to allow the
admission of hearsay evidence only if the court found a
substantial basis for believing the hearsay evidence was
reliable. (See People v. Williams (2020) 57 Cal.App.5th 652,
659-662, review denied Feb. 10, 2021.) Gomez’s reliance on
People v. Perez (2020) 9 Cal.5th 1 and People v. French
(2008) 43 Cal.4th 36 to explain away his failure to object is
accordingly unavailing. (People v. Perez, supra, 9 Cal.5th at
5-9, 14 [defendant did not forfeit objection that would have
been futile under then-binding precedent]; People v. French,
supra, 43 Cal.4th at 40-41, 46-48 [defendant did not forfeit
jury trial right that had yet to be recognized by the courts].)
We conclude that the invited error and forfeiture doctrines
bar Gomez’s hearsay objection on appeal. (See People v.
Tran (2022) 13 Cal.5th 1169, 1213-1214.)
C. Defense Counsel’s Decision to Offer Ricardo’s
Out-of-Court Statements to Support Gomez’s
Resentencing Petition Did Not Amount to
Ineffective Representation

18
 Gomez contends that, if we conclude the trial court did
not err in considering Ricardo’s hearsay statements, we
should also conclude Gomez was prejudiced by
constitutionally ineffective representation by counsel who
put the statements before the trial court. Because we
conclude the statements were admissible and the decision to
offer them was neither unreasonable nor prejudicial to
Gomez, his constitutional claim fails.
Evidence Code section 1230 provides that the out-of-
court declaration of an unavailable witness may be admitted
for its truth if the statement, when made, was so far against
the declarant’s interests, penal or otherwise, that a
reasonable person would not have made the statement
unless he or she believed it to be true.7 “[T]he against-
interest exception does not require courts to sever and excise
any and all portions of an otherwise inculpatory statement
that do not ‘further incriminate’ the declarant.” (People v.
Grimes (2016) 1 Cal.5th 698, 716-717.) Here, Ricardo acted
against his penal interests in admitting his role in the
robbery and Cruz’s death, one of several reasons why the
trial court concluded the statements were reliable. Ricardo
also inculpated Gomez, stating Gomez suggested the robbery
to Ricardo, demanded and took Cruz’s property while
Ricardo held Cruz at gunpoint, walked with Ricardo around

7 Ricardo was deemed unavailable as a witness at Gomez’s
trial after Ricardo asserted his Fifth Amendment right to refuse
to testify. Gomez appears to concede Ricardo was “legally
unavailable to testify” in the resentencing proceedings as well.

19
the car to the vantage point where Ricardo fired, and fled
with Ricardo. But these descriptions of Gomez’s conduct
merely provided context for Ricardo’s self-inculpatory
admissions, without portraying Gomez as the more culpable
actor or otherwise attempting to shift the blame. (See People
v. Almeda (2018) 19 Cal.App.5th 346, 364 [“statements by a
nontestifying codefendant that implicate the defendant, even
by name, may be admissible if they are disserving to the
codefendant’s interest and are not exculpatory, self-serving,
or collateral”]; People v. Arredondo (2018) 21 Cal.App.5th
493, 508 [trial court acted within its discretion in admitting,
as declaration against interest, accomplice’s statement to
cellmate that accomplice shot victim and then defendant slit
victim’s throat].)
We also reject Gomez’s argument that the admission of
Ricardo’s statements violated Gomez’s confrontation and due
process rights. It appears to be beyond dispute that the
right to confront witnesses does not apply in resentencing
proceedings. (See People v. James (2021) 63 Cal.App.5th
604, 610, review denied July 14, 2021.) With respect to due
process, Gomez forfeited the issue by failing to raise it in his
opening brief. (See People v. Silveria and Travis (2020) 10
Cal.5th 195, 255.) In any event, because we conclude there
were sufficient indicia of reliability for Ricardo’s statements
to be admissible, we further conclude Gomez has likewise
failed to show their admission violated his due process
rights. (See People v. Dalton (2019) 7 Cal.5th 166, 209.)

20
 To demonstrate constitutionally deficient performance
of counsel, Gomez bears the burden of showing that counsel’s
performance “‘fell below an objective standard of
reasonableness . . . under prevailing professional norms’”
and that he suffered prejudice as a result of the deficient
performance. (People v. Mickel (2016) 2 Cal.5th 181, 198.)
To demonstrate prejudice, Gomez must show “a reasonable
probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different.”
(Ibid.)
Here, defense counsel reasonably could have
determined, as we have, that Ricardo’s out-of-court
statements were admissible. (See People v. Seumanu (2015)
61 Cal.4th 1293, 1313.) Counsel, in light of the trial judge’s
comment that the merits of the petition might “turn[] on” the
identity of the actual killer, could have made a reasonable
tactical decision to offer the statements to support an
argument that Gomez was not the actual killer. Even if this
were not the case, Gomez would be unable to show prejudice
in light of our conclusion that, even without Ricardo’s
statements, substantial evidence supported the trial court’s
denial of Gomez’s petition.

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 DISPOSITION
The order denying Gomez’s petition for resentencing is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SCADUTO, J. *

We concur:

COLLINS, Acting P.J.

CURREY, J.

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.

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