P. v. Perez

Filed 4/5/05 P. v. Perez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ALFREDO PEREZ et al.,
Defendants and Appellants.
B166034
(Los Angeles County
Super. Ct. No. BA226514)
APPEALS from judgments of the Superior Court of Los Angeles County,
Ruth Ann Kwan, Judge. Affirmed in part, reversed in part and remanded.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant
and Appellant Alfredo Perez.
Margis Matulionis for Defendant and Appellant Salvador Gomez.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,
Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff
and Respondent.

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Alfredo Perez and Salvador Gomez appeal from judgments entered
following a jury trial in which Perez was convicted of two counts of attempted
willful, premeditated murder (Pen. Code, §§ 664/187, subd. (a)) with the finding
that a principal personally used a firearm within the meaning of Penal Code
section 12022.53, subdivision (b); and Gomez was convicted of two counts of the
lesser included offense of attempted voluntary manslaughter with the finding that
he personally used a firearm within the meaning of Penal Code section 12022.5,
subdivision (a)(1). Perez was sentenced to prison for 26 years and four months,
plus two consecutive terms of life with the possibility of parole. Gomez was
sentenced to prison for a total of 19 years and 10 months. Gomez filed an opening
brief contending the record does not support his sentence. Perez’s counsel filed a
Wende Brief.1
This court asked the parties to file a supplemental brief addressing
the application to this case of Blakely v. Washington (2004) 542 U.S. ___ [124
S.Ct. 2531]. For reasons explained in the opinion, we affirm the conviction but
reverse only the sentence of Salvador Gomez and remand the matter to the superior
court for resentencing and affirm the judgment of Alfredo Perez.
FACTUAL AND PROCEDURAL SUMMARY
On January 10, 2002, at approximately 1:30 p.m., Los Angeles Police
Officer Michael Martinez and his partner Officer Andre Dixon made a traffic stop
at a gas station at the corner of Florence Avenue and San Pedro. While standing in
front of the driver’s car, Officer Martinez heard a loud boom, which sounded like
backfire or a shotgun blast, and saw a cream-colored Toyota vehicle slightly
behind a burgundy Ford Expedition. The rear passenger of the Toyota was outside
the car, approximately five to 10 feet away from the Explorer, and armed with a
1
People v. Wende (1979) 25 Cal.3d 436.

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sawed-off shotgun and the front passenger was armed with a pistol. Officer
Martinez then heard and observed three additional “smaller booms coming from
the pistol.” At that point, the gas pump near Officer Martinez “began to rattle as if
the pellets or something splattered up against it making a loud dinging noise” and
the officer and the traffic violator took cover, believing that the noises were
shotgun blasts. The Expedition sped off in an eastbound direction and the Toyota
slowly proceeded eastbound. Gomez, the rear passenger, was outside the vehicle,
tossed the shotgun into the car and attempted to get back in the car. At that point,
someone in the Toyota yelled, “Oh, shit, police” and the Toyota drove off in a
northbound direction on San Pedro, leaving Gomez standing in the street. The
officers followed in their vehicle and Gomez raised his hands to surrender. Officer
Martinez identified appellant Perez as the person who fired the handgun.
Officer Martinez and his partner pursued the Toyota at a high rate of speed
and Officer Martinez observed Perez toss the handgun out along the curb on
San Pedro. Someone from the vehicle also discarded the shotgun out of the
driver’s side of the vehicle. The officers continued to pursue the Toyota until the
Toyota came to a stop and its occupants jumped out and ran. Three of the
occupants ran in the same direction and one ran parallel to the officers’ vehicle.
Officer Martinez directed his units to respond to a location and set up a two-block
perimeter. Once the perimeter was set up, he returned to the Toyota and observed
a red shotgun shell, an expended round, in the backseat. Thereafter, he returned to
the location where the occupants had been found and taken into custody and
identified appellant Perez as one of them. Based on what he had observed, Officer
Martinez believed that possibly someone had been shot in the Explorer. The
shooting had been directly into the vehicle and when it pulled over, it nearly hit a
pole and two people jumped out and ran. Another officer had observed Gomez,
after he had been left by his companions, get on a bus; and when he exited the bus,

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he was detained. Officer Martinez went to the location where Gomez was detained
and confirmed that he was the individual from the Toyota who had fired the
shotgun. The Explorer vehicle was examined at the police station and damage to
its door and mirror, caused by the shotgun blast, was observed. In the interior of
the vehicle, there was a small hole consistent with a bullet hole.
The parties stipulated that codefendant Victor Moreno made the following
statements under oath as the factual basis for his plea. He was a member of a
criminal street gang known as “SOK” or “Still Out Killing” and had the moniker
“KID.” His codefendant Alfredo Perez had the moniker of “CASK” and his
codefendant Salvador Gomez had a street moniker of “Boo Boo.” On January 10,
2002, Moreno was driving a car containing the two fellow codefendants and two
additional people. Perez was sitting in the front passenger seat and Gomez was
sitting in the passenger seat behind Perez. Moreno approached a red or burgundy
Ford Expedition at the corner of Florence and San Pedro and shots were fired.
Moreno did not know who fired the gun but knew that shots were fired from the
rear passenger side and the front passenger side. Moreno stated that earlier they
had been leaving school when the Ford Explorer drove up to them and its
occupants fired at him and his companions.2
Moreno happened to come across the
same vehicle that fired on him earlier. After the shots were fired, Moreno stopped
at the corner and the police car started following them. Gomez got out of
Moreno’s vehicle and Moreno drove away. At some point, Moreno stopped the
vehicle and ran.
2
Alfredo Perez but not Salvador Gomez was in the car with Moreno.

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APPEAL OF SALVADOR GOMEZ
DISCUSSION
Appellant Gomez contends the sentence he received “does not conform to
either the jury’s findings or the facts of the case” and that “[h]e should be
resentenced with proper attention paid to the facts of his case.” Respondent argues
that the sentence was supported by the record. On August 11, 2004, this court
asked the parties to file supplemental briefs addressing the application of Blakely v.
Washington, supra, 124 S. Ct. 2531 to this case. Our conclusion is that appellant
Gomez’s sentence violates the holding of Blakely, which requires the sentence to
be reversed and the matter be remanded to the trial court. This renders appellant’s
original contention moot.
The court selected count 1, attempted voluntary manslaughter, as the
principal term. As a factor in mitigation, the court stated Gomez had no prior
criminal record. As factors in aggravation, the court found the crime involved
great violence and threat of great bodily harm, that Gomez went out searching for
the individuals in the Ford Explorer with the intent to kill and retaliate, and that
because he was one of the shooters and the first to fire shots, he occupied a
position of leadership. The court concluded that the aggravating factors
outweighed the mitigating factors, noting “any one of the above aggravating
factors in the court’s opinion would outweigh the mitigating factors” and selected
the upper term of five years and six months. This term was calculated by dividing
the high term for a violation of Penal Code section 192, subdivision (a) by half
pursuant to Penal Code section 664, subdivision (a). For the weapon enhancement,
the court selected the high term for 10 years for a total of 15 years, 6 months for
count 1. The court stated the reasons for selecting the upper term for the
enhancement were that the victim was particularly vulnerable and the manner in

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which the crime was carried out indicated planning. With respect to count 2,
Gomez was sentenced to one-third of half the midterm, or one year, and one-third
of the upper term for the enhancement, which would be three years and four
months, for a total of four years and four months for count 2. The court again
chose the upper term for the enhancement because the victim was particularly
vulnerable and the manner in which the crime was carried out indicated planning.
The court chose consecutive sentences because the crimes involved separate acts of
violence or threats of violence against two separate individuals.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United
States Supreme Court held: “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely v.
Washington, supra, 124 S.Ct. 2531, 2537 (Blakely ), the Supreme Court held that
“the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant. . . . In other words, the relevant ‘statutory maximum’ is not the
maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” (Italics omitted.) It
appears that the holding applies to all cases not yet final when Blakely was decided
in June 2004. (See Schriro v. Summerlin (2004) 542 U.S. ___ [124 S.Ct. 2519].)
In his supplemental brief, appellant argues that his sentence violates the
holding in Blakely. We agree the court’s imposition of upper terms was a
violation. Under Penal Code section 1170, subdivision (b), “[w]hen a judgment of
imprisonment is to be imposed and the statute specifies three possible terms, the
court shall order imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime.” Circumstances in aggravation cannot
include a fact on which an enhancement is based or a fact which is an element of

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the underlying offense. (Cal. Rules of Court, rule 4.420(c) and (d).) Like the
“standard range” in the Washington sentencing scheme considered in Blakely, the
middle term under California law is the maximum sentence the court can impose
“solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” (Blakely, supra, 124 S.Ct. 2531, 2537.) Here, the court imposed the
upper term based on several factors. The court found that the victims were
especially vulnerable, that the crime was premeditated and that appellant occupied
a position of leadership. Appellant was entitled to have a jury determine these
facts used to impose the upper term, and the resulting sentence here is an invalid
sentence.
APPEAL OF ALFREDO PEREZ
After review of the record, appellant Alfredo Perez’s court-appointed
counsel filed an opening brief requesting this court to independently review the
record pursuant to the holding of People v. Wende, supra, 25 Cal.3d 436, 441.
On November 5, 2003, we advised appellant that he had 30 days within
which to personally submit any contentions or issues which he wished us to
consider. No response to this notice was received.
On August 11, 2004, this court requested counsel to file a supplemental brief
addressing the application of Blakely, supra, 124 S.Ct. 2531.
Appellant filed a supplemental brief arguing that Blakely precludes his
consecutive sentences for counts 1 and 2. We disagree. The court’s decision to
sentence consecutively was made after a jury had found appellant guilty beyond a
reasonable doubt on the two charged offenses thus complying with the requirement
of a jury trial and due process requirements. In view of the jury’s findings,
imposition of consecutive sentences did not violate the holding in Blakely.

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We have examined the entire record and are satisfied that no arguable issues
exist, and that appellant has, by virtue of counsel’s compliance with the Wende
procedure and our review of the record, received adequate and effective appellate
review of the judgment entered against him in this case. (Smith v. Robbins (2000)
528 U.S. 259, 278.)
DISPOSITION
The sentence of Salvador Gomez is reversed and the cause is remanded to
the trial court for further proceedings consistent with this opinion and in all other
respects the judgment is affirmed.
The judgment of Alfredo Perez is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURRY, J.
We concur:
EPSTEIN, P.J.
HASTINGS, J.

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