People v. Gomez CA6

Filed 5/13/24 P. v. Gomez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050814 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1650718)

v.

RICARDO GOMEZ,

Defendant and Appellant.

Defendant Ricardo Gomez pleaded guilty to murder and other crimes arising from charges that, while intoxicated, he sped through a red light and struck and killed a pedestrian. He is currently serving a sentence of 15 years to life consecutive to three years. Gomez appeals from an order denying his petition for resentencing under Penal Code section 1170.95 (now Pen. Code, § 1172.6)1. Gomez argues the trial court improperly denied his petition at the prima facie stage by relying on preliminary hearing evidence. For the reasons stated here, we will affirm the order. I. TRIAL COURT PROCEEDINGS

We derive the following factual summary from the unpublished opinion filed in 2020 granting Gomez’s request for remand for resentencing (case No. H046937). On our own motion, we take judicial notice of the record in case No. H046937 because our

1 In 2022 the Legislature renumbered Penal Code section 1170.95 to Penal Code section 1172.6 without substantive change to the text. (Stats. 2022, ch. 58, § 10, eff. June 30, 2022.) Although the petition references Penal Code section 1170.95, we primarily refer to the current statute for clarity. Unspecified statutory references are to the Penal Code. 1

analysis here relies on the preliminary hearing transcript rather than the factual summary contained in our prior opinion. (Accord People v. Clements (2022) 75 Cal.App.5th 276, 293.) At approximately 4:30 p.m. on November 10, 2016, Gomez ran a red light in downtown San Jose. Gomez’s truck entered an intersection nearly three seconds after the light had changed to red at an approximate speed of 49 miles per hour. Gomez’s truck collided with another vehicle in the intersection, hit a pedestrian, and then crashed into a parked news van. The pedestrian was killed and two occupants of the news van suffered injuries. Gomez’s blood alcohol content was 0.25 percent approximately 90 minutes after the collision. Gomez had three prior DUI convictions: two for driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and one for driving with blood alcohol content of 0.08 percent or higher (id., subd. (b)). The Santa Clara County District Attorney charged Gomez with murder (Pen. Code, § 187); driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)); and driving with a blood alcohol content of 0.08 percent or higher causing injury (id., § 23153, subd. (b)). At the preliminary hearing, the prosecutor presented three witnesses who identified Gomez as the driver of the truck, including one of the news van’s occupants; Gomez’s cousin; and a San Jose police sergeant who apprehended Gomez as he walked away from his truck. The prosecutor also introduced surveillance video of the accident showing Gomez getting out of his truck and being stopped by the police sergeant. The prosecutor explained that the theory of murder was implied malice while driving drunk, as set forth in People v. Watson (1981) 30 Cal.3d 290 (Watson), known colloquially as “Watson murder.” The prosecutor submitted certified records of Gomez’s prior DUI convictions to establish Gomez’s “knowledge of the dangers of drinking and driving” and “the implied malice requirement.” 2