People v. Gomez CA5

Filed 9/28/16 P. v. Gomez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070393 Plaintiff and Respondent, (Super. Ct. No. 02CM7150) v.

STEVEN GOMEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Kings County. Steven D. Barnes, Judge. Michael Satris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Detjen, J. and Smith, J.

Appellant Steven Gomez appeals from the order denying his petition for recall of sentence pursuant to Penal Code section 1170.126.1 Appellant contends the trial court wrongly concluded he was ineligible for resentencing because his current sentence was for a disqualifying offense under section 1170.126, subdivision (e)(2). Appellant further contends the trial court violated his due process rights by not inviting further briefing on appellant’s eligibility or appointing counsel to further develop this issue. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On August 19, 2002, in response to the filing of an amended information, appellant pled guilty to the crime of involuntary manslaughter under section 192, subdivision (b), and further admitted to three prior felony convictions and to the fact that the crime occurred while appellant was confined in state prison. As a third strike offender, appellant was sentenced to a term of 25 years to life with the possibility of parole, ordered to run consecutive to a sentence appellant was already serving for different crimes. The amended information was filed after appellant’s preliminary hearing in May 2002. At that hearing, several witnesses testified regarding appellant’s allegedly illegal conduct. In June 2001, appellant was confined as a prisoner at the Corcoran State Prison. He shared his cell with an inmate named Sean Patrick Gallagher. On the morning of June 28, 2001, medical technical assistant Sue Savage attempted to bring Mr. Gallagher his medicine. When she arrived at Mr. Gallagher’s cell, Ms. Savage found the lights out, appellant at the door, and Mr. Gallagher lying in his bed. Ms. Savage eventually had appellant turn on the light and attempt to rouse Mr. Gallagher. At that point she noticed Mr. Gallagher was nonresponsive and breathing irregularly. Upon further investigation, Ms. Savage saw that Mr. Gallagher’s face and arms were grossly swollen, that he had a