P. v. Gomez

Filed 12/8/06 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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
THE PEOPLE,
Plaintiff and Respondent,
v.
ENRIQUE RUDY GOMEZ,
Defendant and Appellant.
F049775
(Super. Ct. No. 1088068)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E.
Shaver, Judge.
Sylvia Whatley Beckham, 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, Stan Cross and A. Kay
Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

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2.
Appellant Enrique Rudy Gomez challenges the sufficiency of the evidence
supporting his conviction for the substantive offense of participating in a criminal street
gang and the true finding on the gang enhancement. He also challenges his sentence on
several grounds. We will remand for resentencing on the substantive gang offense
conviction and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
In the early morning of November 17, 2004, Uriel Viramontes was walking from
his home to the home of his employer. As he passed through Columbia Park, Viramontes
saw a man on a bicycle and a man on foot. Viramontes did not know either man.
Viramontes heard the man on the bicycle, Gomez, ask the man on foot whether the man
knew Viramontes. Gomez then got off his bike and rushed Viramontes.
Gomez asked Viramontes who he was, where he lived, and “what [he] claimed.”
Viramontes told Gomez that he was not affiliated with any gang. Gomez then demanded
that Viramontes hand over all his possessions. When Viramontes turned to look at the
other person, Gomez struck Viramontes in the face. The blow hit Viramontes in the left
eye, causing the area to bleed.
Viramontes fell to the ground, landing on his back. As Viramontes attempted to
get up, he was told by Gomez he would stab Viramontes if he stood up. Before
Viramontes could get up, Gomez sat on him and took a wallet and cellular phone from
Viramontes. The wallet contained Viramontes’s green card, Social Security card, and
automatic teller machine card.
While Viramontes was still lying on the ground, Gomez walked back to his
bicycle. Viramontes waited until Gomez was a safe distance away and then ran for his
employer’s house. As he ran away, Viramontes heard Gomez yell, “Yeah, you better run,
you little bitch, puto Norte.” The term “puto” means “sissy” or “homosexual” in
Spanish. Viramontes understood “Norte” to be a gang reference.

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3.
Gomez was charged with one count of robbery, Penal Code section 211,1 and one
count of participating in a criminal street gang, section 186.22, subdivision (a).
Appended to the robbery count was a section 186.22, subdivision (b)(1) gang
enhancement allegation. A section 667.5, subdivision (b) prison prior was alleged as to
both counts.
The jury convicted Gomez of both charges and found the gang enhancement true.
The trial court found the prison prior allegation true.
The trial court imposed a term of imprisonment for the robbery conviction and a
concurrent term for the gang offense. Terms also were imposed for the gang
enhancement and the prison prior.
DISCUSSION
Gomez challenges the sufficiency of the evidence to support the gang offense and
the gang enhancement. He also contends that imposition of the upper term of
imprisonment by the trial court violates the holding of Blakely v. Washington (2004) 542
U.S. 296. Gomez further argues that if a term of imprisonment is imposed for the gang
offense, section 654 operates to stay imposition of punishment for the gang enhancement.
Finally, Gomez claims, and the People concede, there is an error in the abstract of
judgment.
I. Sufficiency of the Evidence
The role of an appellate court in reviewing the sufficiency of the evidence is
limited. The court must “‘“review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence -- that is, evidence
which is reasonable, credible, and of solid value -- such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” [Citations.] [¶] ... But it is
1 All further statutory references are to the Penal Code unless otherwise specified.

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4.
the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond
a reasonable doubt.’” (People v. Sanchez (1998) 62 Cal.App.4th 460, 468, quoting
People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.)
We “‘“presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.”’ [Citation.]” (People v. Davis (1995) 10
Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We do not reweigh the
evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.
(People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Green (1997) 51 Cal.App.4th
1433, 1437.) “Before a judgment of conviction can be set aside for insufficiency of the
evidence to support the trier of fact’s verdict, it must clearly appear that upon no
hypothesis whatever is there sufficient evidence to support it. [Citation.]” (People v.
Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)
Gomez acknowledges that the evidence established he belonged to an unspecified
Norteno gang, but contends the evidence had to establish that the specific subgroup of
which he claimed to be a member, the Varrio West Side Turlock gang, was a criminal
street gang. He also argues the evidence failed to establish that the Varrio West Side
Turlock gang had a common membership consisting of three or more persons. Gomez’s
contention is premised on the theory that each Norteno affiliated subgroup should be
treated as a separate criminal street gang for purposes of section 186.22. We reject this
premise.
At trial expert testimony established that the Norteno gang uses the number “14,”
the letter “n,” specific hand signs, and the color red to identify itself. The Norteno gang
has claimed Columbia Park in Turlock as its “territory.” In 2004 there were over 100
Norteno gang members in Turlock, whose primary crime-related activities consisted of
assaults, drug deals, robberies, burglaries, drive-by shootings, and murders. Turlock
Police Officer Steve Crawford, testifying as an expert on gangs, stated that Gomez was
an active participant in the Norteno gang and a high-ranking member of that gang.

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5.
During his investigation of the Viramontes robbery, Crawford learned of a
telephone call made by a jail inmate, Anthony Narcisco, asking someone to send a gang
member named “Soldier” to intimidate a witness in his case. In a subsequent phone call,
Narcisco learned that Soldier had “paid a visit” to the witness and had been arrested.
Gomez’s gang moniker is “Soldier” and no other gang member in Turlock uses that
moniker.
Sureno and Norteno gang members are housed separately in the Stanislaus County
Jail. In April 2005, Gomez was housed in the section reserved for the most notorious
Norteno gang members. Gang members commonly have tattoos of their last name and
gang identification. Gomez has a tattoo with an “I” and four dots, representing the
number 14. He also has tattoos of his last name, the moniker “Soldier,” and “T-14.” The
“T” stands for “Turlock” and the number 14 denotes the Nortenos.
Crawford testified that Gomez was aware of the Norteno gang’s criminal activity
because he participated in those activities. In 2000 Gomez was convicted of felony
possession of narcotics for sale. Gomez also had knowledge of the criminal activities of
other gang members, as evidenced by the written record of crimes committed by fellow
gang members that was found in Gomez’s cell on April 21, 2005.
The robbery of Viramontes benefited the Norteno gang because the victim’s
driver’s license was found not in the possession of Gomez but another Norteno gang
member. The robbery also served to intimidate residents of the Columbia Park area and
strengthen the gang’s control over that neighborhood.
The California Supreme Court has acknowledged that the Nortenos are a large
criminal street gang, with numerous subgroups. (People ex rel. Gallo v. Acuna (1997) 14
Cal.4th 1090, 1121.) The evidence established that Gomez was part of the larger
Norteno gang, regardless of whether he also claimed affiliation to one particular Norteno
subgroup. (In re Jose P. (2003) 106 Cal.App.4th 458, 467-468.) As set forth in Jose P.,
the evidence of gang activity satisfying the requirements of section 186.22 need not be

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6.
specific to a particular subgroup of a criminal street gang, but may be established by
evidence of gang-related criminal activity by members of any of the affiliated subgroups.
(Jose P., at pp. 467-468.)
It is apparent that Gomez was acting as part of the larger Norteno gang when he
robbed and assaulted Viramontes. The evidence was sufficient to support the section
186.22, subdivision (a) conviction and the section 186.22, subdivision (b)(1) true finding.
II. Section 654
At sentencing Gomez argued that concurrent terms should be imposed for the two
substantive offenses of robbery and participating in a criminal street gang. The People
agreed, stating that “active participation … is 654 to the gang enhancement.” The trial
court ordered that the terms imposed for counts 1 and 2 run concurrently.
Gomez argues on appeal that the term imposed for the offense of participating in a
criminal street gang should have been stayed pursuant to section 654 because the term
imposed on the robbery conviction was enhanced by the section 186.22, subdivision
(b)(1) true finding.
There is a split of authority within the Courts of Appeal as to whether section 654
applies to any enhancements. The California Supreme Court to date has not resolved the
issue. (People v. Oates (2004) 32 Cal.4th 1048, 1066, fn. 7; People v. King (1993) 5
Cal.4th 59, 78.) The issue is pending before that court in People v. Palacios, review
granted May 11, 2005, S132144.
Section 654 prohibits multiple punishment for an indivisible course of conduct,
even though it violates more than one statute. (People v. Hicks (1993) 6 Cal.4th 784,
789.) Multiple punishments may be imposed, however, where the defendant commits
two crimes in pursuit of two independent, even if simultaneous, objectives. (People v.
Herrera (1999) 70 Cal.App.4th 1456, 1466.)
The substantive offense of robbery requires an intent to steal and permanently to
deprive the owner of property. (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) Even

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7.
though the robbery was committed for the benefit of a criminal street gang within the
meaning of section 186.22, subdivision (b)(1), the section 186.22, subdivision (a) offense
requires a separate intent and objective from the underlying felony committed on behalf
of a gang. (In re Jose P., supra, 106 Cal.App.4th at p. 471.)
Section 186.22, subdivision (a) is a “substantive offense whose gravamen is the
participation in the gang itself.” (In re Jose P., supra, 106 Cal.App.4th at pp. 470-471.)
This substantive offense punishes active gang participation where the defendant promotes
or assists in felonious criminal conduct. The defendant must have the intent and
objective to participate actively in a criminal street gang. (People v. Herrera, supra, 70
Cal.App.4th at p. 1467.)
In People v. Herrera, supra, 70 Cal.App.4th 1456, the trial court imposed a
sentence for attempted murder, enhanced by a true finding under section 186.22,
subdivision (b)(1), and also imposed a term for the section 186.22, subdivision (a)
substantive offense. (Herrera, at p. 1462.) The appellate court struck the enhancement
for the sole reason that it does not apply where the crime is punishable by life in prison.
(Id. at p. 1465; § 186.22, subd. (b)(4).)
In People v. Burnell (2005) 132 Cal.App.4th 938, the appellate court addressed
whether robbery was a necessarily included offense of section 186.22, subdivision (a).
(Burnell, at pp. 944-946.) That court concluded that robbery was “not necessarily
included in the offense of street terrorism under either the statutory test or the pleadings
test.” (Id. at p. 946.)
Section 186.22, subdivision (a) “requires a separate intent and objective from the
underlying felony committed on behalf of the gang.” (People v. Herrera, supra, 70
Cal.App.4th at p. 1468.) As such, section 654 does not preclude the imposition of
punishment for both the robbery conviction and the section 186.22, subdivision (a)
substantive offense. (Herrera, at p. 1468.)

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8.
III. Imposition of Upper Term Is Constitutional
Gomez contends the imposition of the upper term of imprisonment violates his
constitutional rights as set forth in the holdings of Blakely v. Washington, supra, 542 U.S.
296 and United States v. Booker (2005) 543 U.S. 220. Contrary to his assertion, a jury
determination is not required for the imposition of the upper term.
We first note that Gomez did not raise this objection at sentencing, even though he
was sentenced more than one year after the issuance of the Blakely decision. The issue,
therefore, is not cognizable on appeal. (In re Seaton (2004) 34 Cal.4th 193, 198.)
Regardless, the California Supreme Court decision in People v. Black (2005) 35
Cal.4th 1238 addressed the effect of Blakely and Booker on California’s determinate
sentencing law and concluded “that the judicial factfinding that occurs when a judge
exercises discretion to impose an upper term sentence or consecutive terms under
California law does not implicate a defendant’s Sixth Amendment right to a jury trial.”
(Black, at p. 1244.)
IV. Remand for Resentencing
Gomez claims the trial court erred in imposing a five-year term for the section
186.22, subdivision (a) conviction because the maximum term that could have been
imposed for this offense is three years. The People concede this point.
The parties disagree, however, on whether this case should be remanded for
resentencing or this court should impose the upper or midterm specified in the statute.
Under the circumstances, we will remand the matter to the trial court for resentencing on
the count 2 conviction.

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9.
DISPOSITION
The sentence imposed for the section 186.22, subdivision (a) offense is vacated
and the matter is remanded for resentencing as to that offense. The judgment is otherwise
affirmed.
_____________________
CORNELL, J.
WE CONCUR:
_____________________
HARRIS, Acting P.J.
_____________________
DAWSON, J.

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