P. v. Gomez

Filed 8/17/06 P. v. Gomez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed with directions.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela A. Ratner Sobeck, Supervising Deputy Attorney General, and Bradley A. Weinreb, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant Alejandro Gomez guilty of second degree murder (Pen. Code, § 187, subd. (a))^[1] and torture (§ 206). The trial court imposed an indeterminate 22-year-to-life sentence for the two offenses.

In this appeal, defendant contends the trial court erred in refusing to instruct on involuntary manslaughter as a lesser included offense of murder and in excluding evidence of medical malpractice. Defendant also asserts that section 654 precludes multiple punishment for both murder and torture since both offenses arose from the same continuous course of conduct and objective. Defendant further complains, and the Attorney General agrees, that the court should strike the seven-year prison term from defendant's indeterminate life sentence for torture. We affirm the judgment but with instructions to modify the sentence by striking the seven-year prison term from defendant's indeterminate life sentence for torture.

1. Facts

During the early evening hours on October 10, 2003, defendant and his friend, Jesse Badillo, visited defendant's friend, Herlinda Guerrera, and her friend, Gloria Rodriguez. After they socialized and drank beer for a few hours, Richard Ramirez came over to visit his cousin, Gloria Rodriguez.

Around 9:00 p.m., defendant, Ramirez, and Badillo drove in Ramirez's van to Meadowbrook Market to buy some more beer. The three men walked into the market. While Ramirez was purchasing beer, defendant went outside to the pay phone to call his wife and Badillo stood in front of the store, watching defendant use the phone. When Ramirez came out of the store, he noticed a crowd had gathered outside the store.

Meanwhile defendant had gotten into an argument with Billy Pike and Noni Garcia. According to Noni, defendant pushed her out of the way as he exited the store and said, â€