P. v. Gomez

Filed 3/28/06 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.

Mark L. Christiansen, 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, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

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Armando Gomez was convicted of first degree murder in the shooting death of Hector Navarro. (Pen. Code, § 187, subd. (a).)[1] He was sentenced to a term of 50 years to life, consisting of 25 years to life for the murder and a consecutive 25 years to life for personal use of a firearm resulting in great bodily injury. (§ 12022.53, subd. (d).)

Gomez argues the trial court erred in failing to instruct the jury with CALJIC No. 3.18 regarding accomplice testimony, and by failing to permit him to address the issue of whether a key prosecution witness, Braulio Martinez, had a Fifth Amendment right to refuse to testify. We agree that accomplice instructions should have been given, but conclude the error was harmless. We reject the second claim, concluding that Martinez's testimony was not coerced, and therefore affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On August 28, 2003, 16-year-old J.R. reported she had been raped by John Delgado. The rape occurred at a party. J.R. had been invited to the party and was driven to the party by her â€