People v. Gomez

THE PEOPLE, Plaintiff and Respondent, v. YOCIO JONATHAN GOMEZ, Defendant and Appellant.

B258302

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

March 3, 2016

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. YA085001)

APPEAL from a judgment of the Superior Court of Los Angeles County, Steven R. Van Sicklen, Judge. Affirmed with directions.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Stacy S. Schwartz, Deputy Attorney General, for Plaintiff and Respondent.

____________________ Early in the morning of July 23, 2012, after an evening of drinking and partying, Yocio Jonathan Gomez (Gomez) drove his vehicle near a construction zone on the 405 freeway and triggered a chain reaction accident which killed two construction workers and severely injured a third. A jury convicted Gomez of murder, gross vehicular manslaughter, and driving under the influence of alcohol and causing injury. On appeal, Gomez raises four issues. We affirm on three of the four issues: the trial court's denial of Gomez's Batson/Wheeler¹ motion, the trial court's exclusion of evidence on a third party's purported contributory negligence, and the trial court's reading of the CALJIC No. 250 jury instruction on general intent. However, on the fourth issue, the legal adequacy of the abstract of judgment, we remand for the trial court to prepare an amended abstract that identifies the statutory basis for each monetary fine and penalty imposed.

BACKGROUND

I. Facts of the case

A. Prior convictions

Before the incident in this case, Gomez had two convictions for driving under the influence (DUI). The first DUI offense occurred on June 1, 2008; on June 2, the People, via a complaint, charged Gomez with driving under the influence in violation of Vehicle Code section 23152, subdivision (b)² in case no. 8LT04158. He pleaded no contest, and the court placed Gomez on summary probation for 60 days and ordered him to pay a $390 fine or serve 13 days in Los Angeles County jail. The date of conviction was July 14, 2008.

The second DUI offense occurred less than a year later, on April 6, 2009. In case no. 9LT04101 filed on April 7, the People's complaint charged Gomez with drivingunder the influence under section 23152, subdivision (b). He again pleaded no contest, and the court suspended Gomez's driver's license, placed him on probation for five years, and ordered him to pay a fine and serve 30 days in Los Angeles County jail. The date of conviction was April 14, 2009.

Gomez still had a suspended license and remained on probation for his second DUI offense when the July 23, 2012 incident, described below, occurred.

B. The incident

On July 22, 2012, between 8:00 p.m. and 8:30 p.m., Gomez arrived at a party at a friend's apartment. While at the party, Gomez consumed an unknown quantity of alcohol. Later in the night, because Gomez appeared inebriated, the host attempted to stop Gomez from drinking even more alcohol. According to his testimony at trial, the host successfully stopped Gomez from drinking more alcohol. Around 1:00 a.m., Gomez expressed that he wanted to leave the party soon because he had to work in a few hours, but because Gomez still appeared inebriated the host tried to stop him from driving. Though the host offered to let Gomez spend the night at the apartment instead of driving home, Gomez refused. Between 2:00 a.m. and 2:30 a.m., when the host went to the bathroom, Gomez snuck out and drove away in his car.

On that night, the northbound 405 freeway had several closed lanes due to active construction near the Artesia Boulevard exit. As drivers approached the construction zone, hundreds of traffic cones with two reflective stripes, arrow boards displaying messages such as "move over" and "road work ahead," and warning lights alerted them to the upcoming construction zone. While the posted speed limit in this section of the freeway is 65 miles per hour during regular conditions, it is unclear whether there were signs requiring a reduced speed limit due to the construction zone.

Driving 92 miles per hour next to the construction zone, Gomez straddled the carpool lane and first lane (the two lanes closest to the median) in his Ford Explorer, and the right front of his car struck the left rear of another car, a Lexus RX 350 (second car). The second car spun out of control into the construction area; the car hit a construction worker, trapping him upside down inside a drill machine, and catapulted a secondconstruction worker over the guardrail. Both construction workers died from their injuries. The second car's impact threw a third construction worker against the guardrail; he survived but suffered permanent injuries.

An accident reconstruction expert testified at trial that Gomez's pre-impact speed of 92 miles per hour was "excessive" and in violation of sections 22350 and 22349, subdivision (a).³ Gomez had not been braking when he hit the second car. The expert further opined that at the instant before Gomez's car impacted the second car, the second car's speed was 47 miles per hour. After Gomez's car struck the second car, according to the expert, the second car's driver had no means to regain control of his car. Based on Gomez's "egregious speed," the impact sending the second car "out of control," and the fact that the second car was fully within its lane while Gomez's car "was traveling between two lanes, colliding with the other vehicle," the expert concluded that Gomez—and Gomez alone—caused the collision.

At trial, eyewitness Tiara B. testified that, while driving on the freeway with two cars ahead of her, she saw Gomez's car quickly approach her from behind. As Gomez's car approached hazardously close to her car, she swerved out of the way to avoid an accident. She observed Gomez's car pass the first car directly in front of her but strike the second car in front of her. Then, the second car spun out of control into the construction area, and Gomez's car flipped over and slid along the freeway. Tiara B. called the police to report the collision and its location.

A second eyewitness George Z., a construction worker on-site, saw Gomez's car slide on its roof along the freeway. When he approached Gomez's car, he smelledalcohol and observed an alcoholic beverage on the ground about 10 feet away from Gomez's car.

California Highway Patrol Officer Jimmy Nguy responded to the police call. He observed Gomez exit the overturned car. Approaching Gomez, Officer Nguy smelled a strong odor of alcohol and noticed slurring in Gomez's speech. Another Spanish-speaking officer, Officer Jose Cheak, who had arrived at the scene before Officer Nguy, acted as a translator between Officer Nguy and Gomez; Officer Cheak confirmed that Gomez spoke incoherently. After Gomez gave Officer Nguy his identification card, Gomez vomited on his own shoes. Yet, Gomez denied to the police officers that he had consumed any alcohol that night.

After performing multiple field sobriety tests on Gomez and concluding that Gomez had been driving under the influence of alcohol, Officer Nguy arrested him. The criminalist at trial testified that a blood alcohol level (BAL) over 0.08 percent impairs a driver's ability "to drive safely." She opined that Gomez's BAL was likely 0.23 percent at the time of the collision.

The next day, at the county jail, Gomez admitted that during the incident "it's clear that I was smashed, drunk."

II. Procedural history

An amended information charged Gomez with murder under Penal Code section 187, subdivision (a) (counts 1 and 2), gross vehicular manslaughter while intoxicated under Penal Code section 191.5, subdivision (a) (counts 3 and 4), and driving under the influence and causing injury under Vehicle Code section 23153, subdivisions (a) and (b) (counts 5 and 6). The information also alleged that Gomez had two prior convictions for driving under the influence of alcohol, as discussed above. The first conviction concerned the DUI offense on June 1, 2008, with a conviction date of July 14, 2008, in case no. 8LT04158. The second DUI occurred on April 6, 2009 and led to a conviction in case no. 9LT04101 on April 14, 2009.

Gomez pleaded not guilty to the charges, denied the allegations on the prior convictions, and presented no evidence on his own behalf at trial. The jury found Gomezguilty of murder in the second degree (counts 1 and 2), gross vehicular manslaughter while intoxicated (counts 3 and 4), and driving under the influence and causing injury (counts 5 and 6), and found true the allegations that Gomez had the two prior DUI convictions. The trial court sentenced Gomez to consecutive terms of 15 years to life each on counts 1 and 2 as well as an upper term of four years on count 5. The trial court imposed the following monetary fines and penalties: "a fine of $390.00 plus a state penalty fund assessment of $1,131.00 for a total of $1,521.00."

DISCUSSION

I. The trial court correctly denied Gomez's Batson/Wheeler motion.

During voir dire, Gomez's counsel orally made a Batson/Wheeler motion, based on the prosecutor excusing two of the four Hispanic prospective jurors in the jury pool, Prospective Jurors Nos. 6159 and 6204. When the trial court asked whether the prosecutor wanted to respond to the motion, the prosecutor said only if the court first finds the defense has shown a prima facie case of discrimination. After concluding that the defense had not met...