P. v. Gomez
Filed 4/26/13 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
JIMMY GOMEZ,
Defendant and
Appellant.
G046164
(Super. Ct.
No. 10CF1981)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Carla Singer, Judge.
Affirmed.
Mark Yanis, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Alana R. Butler and James D. Dutton,
Deputy Attorneys General, for Plaintiff and Respondent.
Jimmy Gomez appeals from
a judgment after a jury convicted him of second
degree robbery and one count of attempted second degree robbery, and found
true he was armed with a firearm and personally used a firearm. Gomez argues the trial court violated the
dual use of facts prohibition in sentencing him to the upper term. We disagree and affirm the judgment.
FACTS
Daniel Bahena and John
Martin arrived at a party in Bahena’s Chevrolet Tahoe (the Tahoe). They were there to meet Martin’s girlfriend,
Aurora Ramos. Gomez asked Martin to move
the Tahoe from where it was parked, and Gomez and Ramos got into an
altercation. Ramos got into the backseat
of the Tahoe with Martin, while Bahena sat in the front passenger seat.
Alejandro Lopez
approached Bahena and asked him for marijuana.
After Bahana told Lopez he did not have any, Lopez entered the Tahoe and
searched through the victim’s belongings.
Gomez approached Martin and Ramos, pulled out a gun, and demanded money
and property. Gomez pointed the gun at
Ramos and Martin. Unsuccessful, Gomez
demanded money from Bahena, who put $80 on the center console. Gomez took the money and the keys from the
ignition. Lopez took speakers and
protein powder from the back of the Tahoe.
Gomez told them to leave, but they could not because they did not have
the keys. After an argument about the
keys, Gomez returned them, and they left.
Ramos called the police the next morning.
Ramos later identified
Gomez as the gunman and Lopez as his confederate. Martin and Bahena identified Gomez as the
person whose facial features were similar to the person who had the gun.
Detective Rene Bonilla
interviewed Gomez who eventually admitted he was at the party and took the
money, but he claimed he gave the money to Lopez. Gomez claimed he was armed with a
screwdriver, and not a gun.
An amended information
charged Gomez with two counts of second degree robbery (Pen. Code, §§ 211,
212.5, subd. (c))
title="">[1]
(counts 1 & 2), and one count of attempted second degree robbery
(§§ 664, subd. (a), 211, 212.5, subd. (c)) (count 3). As to all the counts, the information alleged
Gomez personally used a firearm (§ 12022, subd. (a)(1)).
At trial, Gomez
testified on his own behalf. Gomez
claimed Ramos and Martin were engaged in sexual activities in the back of the
Tahoe and he brandished a screwdriver to get them to leave. Gomez asserted Lopez demanded the money and
took the property, and he was essentially an innocent bystander to the
robberies. He denied having a gun. He lied to police because he was scared.
The jury convicted Gomez
of all counts and found true the enhancements.
The probation report stated there were no mitigating circumstances but
listed
six
aggravating circumstances: (1) Gomez
pointed a handgun at the victims placing them at risk of great bodily injury
and threatened to shoot Ramos; (2) Gomez was armed;
(3)
the victims were unarmed and thus vulnerable; (4) Gomez has engaged in past
violent conduct, which indicates he is a danger to the community; (5) Gomez has
a pattern of increasingly serious criminal conduct as he has three sustained
juvenile petitions; and
(6)
Gomez was on juvenile probation when he committed the offenses.
At the sentencing
hearing, the trial court explained it had read and considered the probation
report and the sentencing briefs, and noted the prosecutor was not seeking the
maximum sentence of 23 years and four months.
In imposing the upper term on count 1, the trial court explained: “[Gomez] pointed a handgun at the victim,
placing them at great risk for bodily harm.
[Gomez] threatened to shoot the victim while the gun was pointed at her
head. And [Gomez] has engaged in violent
conduct in the past, which is indicative of a danger to the community. [¶] As
a juvenile he had three sustained petition for threatening a school employee,
vandalism, . . . burglary, [and]
petty
theft. And, therefore, his record shows
a pattern of increasingly serious criminal conduct which makes him a serious
threat to the community. [¶] Moreover, [Gomez] was on probation, juvenile
probation, when the crime in this case was committed.â€
The trial court selected
count 1 as the principal term and sentenced Gomez to the upper term of five
years and a consecutive term of 10 years on the accompanying firearm
enhancement. The court sentenced Gomez
to concurrent terms on counts 2 and 3.
DISCUSSION
Gomez argues the trial
court erred in using the same fact, use of a firearm, in imposing the upper
term of five years on count 1 and imposing a consecutive term of 10 years on
the firearm enhancement. Recognizing the Attorney General would argue
forfeiture because defense counsel did not object, Gomez also contends his
defense counsel provided ineffective assistance of counsel.
As expected, the
Attorney General argues Gomez forfeited appellate review of the issue and in
any event it has no merit because the court also relied on other factors in
imposing the upper term and it is not reasonably probable the court would have
sentenced Gomez differently had it not relied on a firearm related aggravating
circumstance. We agree with the Attorney
General that Gomez forfeited appellate review of the issue (
745, 755 [alleged dual use violation forfeited by failure to object in trial
court]), but we will address the merits of his claim because he also argues
defense counsel provided ineffective assistance of counsel by failing to object
(People v. Williams (1998) 61
Cal.App.4th 649, 657 [addressing merits of claim despite forfeiture because
defendant asserted ineffective assistance of counsel]).
When the trial judge at
sentencing is required to select among the three terms statutorily authorized
for the current conviction, a single factor in aggravation is an adequate basis
for deciding to impose the upper term. (
815.) However, the dual use of facts
proscription bars the court from using the same fact as the sole factor in
aggravation on which the upper term is based when that fact is the basis for
any enhancement on which sentence is also imposed. (People
v. McFearson (2008) 168 Cal.App.4th 388, 392-395.) A trial court violates the dual use
prohibition by imposing prison time on a firearm use enhancement and using the
fact of the firearm use as a reason for imposing the upper term. (People
v. Young (1983) 146 Cal.App.3d 729, 734.)
Here, in imposing the
upper term on count 1, the trial court did rely on the fact Gomez used a gun in
the commission of the robbery. But that
was not the only fact the court relied on.
The court also relied on three other factors in imposing the upper
term.
California Rules of
Court, rule 4.421 (rule 4.421) provides a list of aggravating
circumstances. Rule 4.421(b), specifies
numerous aggravating circumstances specific to a defendant, including as relevant
here, rule 4.421(b)(1), “The defendant has engaged in violent conduct that
indicates a serious danger to society;â€
rule
4.421(b)(2), “The defendant’s . . . sustained petitions in juvenile delinquency
proceedings are numerous or of increasing seriousness;†and rule 4.421(b)(4),
“The defendant was on probation . . . when the crime was committed[.]â€
Here, the trial court
relied on these three aggravating circumstances in imposing the upper term on
count 1. The court explained Gomez had
engaged in violent conduct that indicated he was a danger to the
community. The court noted he had
suffered three sustained juvenile petitions that demonstrated a pattern of
increasing seriousness. Finally, the
court stated that when Gomez committed these offenses, he was on juvenile
probation. As one aggravating factor
justifies the trial court imposing the upper term, these three aggravating
factors certainly support the court’s imposition of the upper term of five
years on count 1. Thus, there is no
reasonable probability the trial court would have sentenced Gomez differently
as there were other aggravating circumstances the court could properly rely on
in imposing the upper term. The court
noted the maximum term was over 23 years, and the court struck a balance between
the seriousness of the crime and its belief Gomez could still be
rehabilitated. Based on the entire
record before us, we conclude the trial court’s imposition of the upper term on
count 1 did not violate the dual use prohibition.
DISPOSITION
The judgment is
affirmed.
O’LEARY,
P. J.
WE CONCUR:
ARONSON, J.
THOMPSON, J.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code.
name="_ftn2" title="">[2] The amended information
also charged Lopez with offenses and enhancements.
