P. v. Gomer
Filed 3/29/06 P. v. Gomer CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. MARQUES GOMER, Defendant and Appellant. | A105757 (Alameda County Super. Ct. No. C142465) |
Appellant was convicted on an aiding and abetting theory of the murder of one man, and the attempted murder of another. On appeal, he argues that the trial court erred by giving an inadequate and misleading response to a question from the jury, and by failing to instruct the jury on duress as a defense to attempted murder. We find the first contention waived by appellant's failure to object in the trial court, and the second to have been harmless error. Appellant also argues that his sentence of 25 years to life in prison plus a one-year enhancement is cruel and unusual punishment because it exceeds that of the actual killer, who was tried separately, convicted of voluntary manslaughter rather than murder, and sentenced to 13 years in prison. We reject appellant's contention, and affirm the judgment.
Facts and procedural background
Appellant grew up in the same neighborhood as his codefendant, Durelle Crawford,[1] and had known him for many years, but did not consider him to be a friend. In the summer of 2001, Durelle entered into a romantic relationship with a woman named Candace Phillips, who lived with her mother and appellant's grandfather in the same Oakland neighborhood, around 76th Street, that was frequented by appellant and Durelle. Phillips had recently had a baby with Antron, but was in the process of breaking up with him.
On July 31, 2001, Antron went to Phillips's home to visit the baby, accompanied by two friends, one of whom was Vedontay Underwood. After a short time, Antron came out of Phillips's home and went a short way down 76th Street to confront Durelle, who was standing on the street with appellant and others. Underwood joined Antron, and an altercation ensued. Appellant tried to intervene, but did not prevent Antron from punching and kicking Durelle. Eventually, the fight was broken up by police who were nearby investigating an unrelated homicide.
The following day, Durelle approached appellant and criticized him for having failed to do more to prevent Antron and Underwood from attacking Durelle. Durelle and a friend of his, Terrence Toliver (known as Mike or Mikey), indicated that they wanted to â€