P. v. Gomez 11/29/04 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D041699

Case Date: 03/16/2005

Preview:Filed 11/29/04 P. v. Gomez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. LOUIS ANDRES GOMEZ, Defendant and Appellant.

D041699

(Super. Ct. No. CF-7199)

APPEAL from a judgment of the Superior Court of Imperial County, James Harmon, Judge. Affirmed in part; reversed in part.

Louis Gomez appeals from a judgment convicting him of second degree murder and assault with a deadly weapon by a life prisoner with malice aforethought. He argues for reversal based on: (1) a jury visit to the prison where the killing occurred; (2) the giving of CALJIC No. 2.62 regarding adverse inferences from a testifying defendant's failure to explain inculpatory evidence; and (3) improper rebuttal closing argument by the prosecutor. Finding no reversible error, we affirm the judgment as to the convictions.

As to sentencing, we find the court's imposition of an upper term sentence violated the principles set forth in the United States Supreme Court's recent decision in Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531], but that the imposition of consecutive sentences did not. We reverse the sentence and remand for resentencing. FACTUAL AND PROCEDURAL BACKGROUND Gomez, a life prisoner in a maximum security prison, was a student in a class taught by Gerardo Larios in the prison's education building. The morning of April 13, 1998, Gomez and prisoner Abe Mendibles engaged in an argument while in Larios's class. Because of the argument, Larios requested that Correctional Officer Lupe Cuevas pay extra attention while monitoring his classroom that day. After the inmates had returned to the classroom from an afternoon break, Officer Cuevas saw Gomez and another inmate in the restroom next to Larios's classroom and signaled to them to go to the classroom. Shortly thereafter, Gomez ran into the classroom and repeatedly stabbed Mendibles while he was seated at his desk. According to Larios, prior to the attack Mendibles was seated with his head looking down at his desk; Mendibles did not move when Gomez came running into the classroom; and during the attack Mendibles was sitting in his chair and trying to defend himself until he fell to the ground. After the stabbing, Gomez ran out of the classroom and was apprehended by Officer Cuevas.

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Gomez's version Testifying in his own defense, Gomez stated that on April 13, Mendibles accused Gomez of being a "rat."1 Mendibles told Gomez: "Get your shit, because I'm going to handle my business." Gomez interpreted Mendibles's statement to mean that they would have a knife fight and Mendibles would stab him. Gomez knew Mendibles had stabbed a person before; he had seen Mendibles scare other inmates with knives; and he knew that Mendibles had hidden knives in the bookcase in the classroom and in an exit sign in the hall outside the classroom. Over the course of the day, Gomez and other inmates tried unsuccessfully to calm Mendibles. Mendibles told another inmate that Gomez should watch his back because Mendibles was going to stab him. During a morning break, Gomez tried to talk to Mendibles while they were in the restroom but Mendibles said there was nothing to talk about and he was going to "handle his business." Back in the classroom from the morning break, Gomez checked the bookcase and saw that the hidden knife was gone. Gomez did not think Mendibles would attack him in the classroom at that time because it was not a "blind spot" but was an area visible to the teacher. Later, on his way back from lunch, Gomez stood on a trash can to check the knife hidden in the exit sign and saw it was still there. During an afternoon break in the gym, Gomez saw Mendibles take a knife out of his shoe and put it in a shower bag. When Gomez went up to Mendibles to talk to him, Mendibles repeated his threat. As the

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inmates were walking back to class, Mendibles told Gomez not to return to class. Gomez interpreted this statement to mean that he should not go back to class because Mendibles would stab him. Gomez tried to stay in the gym but was told by correctional officers to go to class. Although Gomez was not sure if Mendibles would stab him when he returned to the classroom, Gomez was afraid Mendibles would stab him at some point when he turned his back. On his way back to the classroom from the afternoon break, Gomez retrieved the knife hidden in the exit sign by the classroom. Gomez went into the restroom to avoid the classroom, but was instructed by Officer Cuevas to return to the classroom. As Gomez entered the classroom, Mendibles looked at him and "flinch[ed] up" as if he was going to stand up. Gomez thought Mendibles was going to kill him right there because Mendibles had told him not to go back to class, so, to defend himself, Gomez pulled out the knife he had retrieved from the exit sign and "went after" Mendibles. Gomez blacked out and did not remember actually stabbing Mendibles, although he knew he was in a fight with him. Jury Verdict The instant case was Gomez's second trial. In the first trial, the jury acquitted him of first degree murder and deadlocked between second degree murder and manslaughter. In this second trial, the jury rejected Gomez's defenses of perfect or imperfect self-

1 Gomez had upset Mendibles by telling other inmates that Mendibles was going to be changing cells. 4

defense, and found him guilty of second degree murder and assault by a life prisoner with a deadly weapon with malice aforethought. (Pen. Code,2

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