P. v. Gomez

Filed 6/13/06 P. v. Gomez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Marsha N. Revel, Judge. Modified and affirmed.

Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.

Jose Adan Gomez (appellant) was convicted by a jury of one count of first degree murder and two counts of attempted willful, deliberate and premeditated murder (Pen. Code, § 664/187, subd. (a)).[1] The jury also found that as to all three offenses, they were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), appellant personally used a firearm (§ 12022.53, subd. (b)), and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). The jury also found that as to the murder count, appellant had personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)), and that a principal had personally and intentionally discharged a firearm (§ 12022.53, subd. (d) & (e)(1)). Appellant was sentenced to 110 years to life. He appeals, contending that the trial court erred in denying his motion to suppress evidence seized during the warrantless search of his bedroom; that the evidence was insufficient to establish a specific intent to kill; and that the court erroneously imposed firearm enhancements and street gang enhancements.

FACTUAL & PROCEDURAL BACKGROUND

On April 26, 2000, Brenda Kilgore was sitting on a bench with her boyfriend Christopher Ballard, and her friend Sandra Stuart, in front of Ernie's Burrito House on First and Anderson Streets in Los Angeles. Several bullets were fired at them and Kilgore later died from gunshot wounds. Appellant and Alberto Rivera were charged with murder and two counts of attempted murder. They were tried together in June 2004, and Rivera was convicted of one count of first degree murder and two counts of attempted premeditated murder, but a mistrial was declared as to appellant. Appellant was retried in September 2004, and this appeal followed his conviction.

Los Angeles Police Officers Steve Zavala and Jose Vasquez responded to reports of a shooting. Zavala interviewed Rodriguez and Kilgore. Vasquez recovered 16 spent cartridge casings from the vicinity of the shooting. Six casings from a .25-caliber semi-automatic weapon were clustered together. Ten nine-millimeter shell casings were on a sidewalk to the north of the alley, near a white van.

Los Angeles Police Detective Charles Markel went to the scene the next morning. He noticed that there was graffiti in the area from the Primera Flats gang. He discovered some homeless people in the vicinity and determined that there were four eyewitnesses to the shooting, Harold McKing, Antonia Rodriguez, Christopher Ballard, and Sandra Stuart. About two weeks later, Markel interviewed Rodriguez and showed her approximately 80 photographs of members from the TMC gang, a rival of the Primera Flats gang which claimed territory about two blocks from the shooting. Rodriguez circled the pictures of appellant and Rivera.

A tape of Rodriguez's interview with Detective Markel was played for the jury. On the tape she said the shooters â€