P. v. Gomez 12/8/06 CA5

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State: California

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

Docket No: F049775

Case Date: 02/14/2007

Preview:Filed 12/8/06 P. v. Gomez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F049775 Plaintiff and Respondent, (Super. Ct. No. 1088068) v. ENRIQUE RUDY GOMEZ, Defendant and Appellant.

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge. Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

Appellant Enrique Rudy Gomez challenges the sufficiency of the evidence supporting his conviction for the substantive offense of participating in a criminal street gang and the true finding on the gang enhancement. He also challenges his sentence on several grounds. We will remand for resentencing on the substantive gang offense conviction and otherwise affirm the judgment. FACTUAL AND PROCEDURAL SUMMARY In the early morning of November 17, 2004, Uriel Viramontes was walking from his home to the home of his employer. As he passed through Columbia Park, Viramontes saw a man on a bicycle and a man on foot. Viramontes did not know either man. Viramontes heard the man on the bicycle, Gomez, ask the man on foot whether the man knew Viramontes. Gomez then got off his bike and rushed Viramontes. Gomez asked Viramontes who he was, where he lived, and "what [he] claimed." Viramontes told Gomez that he was not affiliated with any gang. Gomez then demanded that Viramontes hand over all his possessions. When Viramontes turned to look at the other person, Gomez struck Viramontes in the face. The blow hit Viramontes in the left eye, causing the area to bleed. Viramontes fell to the ground, landing on his back. As Viramontes attempted to get up, he was told by Gomez he would stab Viramontes if he stood up. Before Viramontes could get up, Gomez sat on him and took a wallet and cellular phone from Viramontes. The wallet contained Viramontes's green card, Social Security card, and automatic teller machine card. While Viramontes was still lying on the ground, Gomez walked back to his bicycle. Viramontes waited until Gomez was a safe distance away and then ran for his employer's house. As he ran away, Viramontes heard Gomez yell, "Yeah, you better run, you little bitch, puto Norte." The term "puto" means "sissy" or "homosexual" in Spanish. Viramontes understood "Norte" to be a gang reference.

2.

Gomez was charged with one count of robbery, Penal Code section 211,1 and one count of participating in a criminal street gang, section 186.22, subdivision (a). Appended to the robbery count was a section 186.22, subdivision (b)(1) gang enhancement allegation. A section 667.5, subdivision (b) prison prior was alleged as to both counts. The jury convicted Gomez of both charges and found the gang enhancement true. The trial court found the prison prior allegation true. The trial court imposed a term of imprisonment for the robbery conviction and a concurrent term for the gang offense. Terms also were imposed for the gang enhancement and the prison prior. DISCUSSION Gomez challenges the sufficiency of the evidence to support the gang offense and the gang enhancement. He also contends that imposition of the upper term of imprisonment by the trial court violates the holding of Blakely v. Washington (2004) 542 U.S. 296. Gomez further argues that if a term of imprisonment is imposed for the gang offense, section 654 operates to stay imposition of punishment for the gang enhancement. Finally, Gomez claims, and the People concede, there is an error in the abstract of judgment. I. Sufficiency of the Evidence The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must "`"review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] [

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