P. v. Gomez

Filed 11/29/04 P. v. Gomez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
LOUIS ANDRES GOMEZ,
Defendant and Appellant.
D041699
(Super. Ct. No. CF-7199)
APPEAL from a judgment of the Superior Court of Imperial County, James
Harmon, Judge. Affirmed in part; reversed in part.
Louis Gomez appeals from a judgment convicting him of second degree murder
and assault with a deadly weapon by a life prisoner with malice aforethought. He argues
for reversal based on: (1) a jury visit to the prison where the killing occurred; (2) the
giving of CALJIC No. 2.62 regarding adverse inferences from a testifying defendant's
failure to explain inculpatory evidence; and (3) improper rebuttal closing argument by the
prosecutor. Finding no reversible error, we affirm the judgment as to the convictions.

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As to sentencing, we find the court's imposition of an upper term sentence violated
the principles set forth in the United States Supreme Court's recent decision in Blakely v.
Washington (2004) 542 U.S. ___ [124 S.Ct. 2531], but that the imposition of consecutive
sentences did not. We reverse the sentence and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Gomez, a life prisoner in a maximum security prison, was a student in a class
taught by Gerardo Larios in the prison's education building. The morning of April 13,
1998, Gomez and prisoner Abe Mendibles engaged in an argument while in Larios's
class. Because of the argument, Larios requested that Correctional Officer Lupe Cuevas
pay extra attention while monitoring his classroom that day. After the inmates had
returned to the classroom from an afternoon break, Officer Cuevas saw Gomez and
another inmate in the restroom next to Larios's classroom and signaled to them to go to
the classroom.
Shortly thereafter, Gomez ran into the classroom and repeatedly stabbed
Mendibles while he was seated at his desk. According to Larios, prior to the attack
Mendibles was seated with his head looking down at his desk; Mendibles did not move
when Gomez came running into the classroom; and during the attack Mendibles was
sitting in his chair and trying to defend himself until he fell to the ground. After the
stabbing, Gomez ran out of the classroom and was apprehended by Officer Cuevas.

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Gomez's version
Testifying in his own defense, Gomez stated that on April 13, Mendibles accused
Gomez of being a "rat."1 Mendibles told Gomez: "Get your shit, because I'm going to
handle my business." Gomez interpreted Mendibles's statement to mean that they would
have a knife fight and Mendibles would stab him. Gomez knew Mendibles had stabbed a
person before; he had seen Mendibles scare other inmates with knives; and he knew that
Mendibles had hidden knives in the bookcase in the classroom and in an exit sign in the
hall outside the classroom.
Over the course of the day, Gomez and other inmates tried unsuccessfully to calm
Mendibles. Mendibles told another inmate that Gomez should watch his back because
Mendibles was going to stab him. During a morning break, Gomez tried to talk to
Mendibles while they were in the restroom but Mendibles said there was nothing to talk
about and he was going to "handle his business." Back in the classroom from the
morning break, Gomez checked the bookcase and saw that the hidden knife was gone.
Gomez did not think Mendibles would attack him in the classroom at that time because it
was not a "blind spot" but was an area visible to the teacher.
Later, on his way back from lunch, Gomez stood on a trash can to check the knife
hidden in the exit sign and saw it was still there. During an afternoon break in the gym,
Gomez saw Mendibles take a knife out of his shoe and put it in a shower bag. When
Gomez went up to Mendibles to talk to him, Mendibles repeated his threat. As the

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inmates were walking back to class, Mendibles told Gomez not to return to class. Gomez
interpreted this statement to mean that he should not go back to class because Mendibles
would stab him. Gomez tried to stay in the gym but was told by correctional officers to
go to class.
Although Gomez was not sure if Mendibles would stab him when he returned to
the classroom, Gomez was afraid Mendibles would stab him at some point when he
turned his back. On his way back to the classroom from the afternoon break, Gomez
retrieved the knife hidden in the exit sign by the classroom. Gomez went into the
restroom to avoid the classroom, but was instructed by Officer Cuevas to return to the
classroom. As Gomez entered the classroom, Mendibles looked at him and "flinch[ed]
up" as if he was going to stand up. Gomez thought Mendibles was going to kill him right
there because Mendibles had told him not to go back to class, so, to defend himself,
Gomez pulled out the knife he had retrieved from the exit sign and "went after"
Mendibles. Gomez blacked out and did not remember actually stabbing Mendibles,
although he knew he was in a fight with him.
Jury Verdict
The instant case was Gomez's second trial. In the first trial, the jury acquitted him
of first degree murder and deadlocked between second degree murder and manslaughter.
In this second trial, the jury rejected Gomez's defenses of perfect or imperfect self-
1 Gomez had upset Mendibles by telling other inmates that Mendibles was going to
be changing cells.

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defense, and found him guilty of second degree murder and assault by a life prisoner with
a deadly weapon with malice aforethought. (Pen. Code,2 §§ 4500, 187, subd. (a).)
DISCUSSION
CONVICTIONS
I. Jury's Visit to the Prison
A. Background
At the prosecution's request and over defense objection, the jury was taken to view
the prison where the killing occurred. During the discussions regarding the propriety of a
visit, the prosecutor asserted that it was difficult to use photographs to show various
distances and areas; a site visit would give the jurors a more thorough view of the
different locations; and deadlocked jurors in Gomez's first trial told her that they had
questions about different prison areas. Defense counsel vigorously objected to a site
visit, arguing a visit would not provide the jury with any relevant information;
photographs of the scene provided the jury with adequate information; it would create
prejudice if Gomez had to wear prison blues and be shackled and surrounded by
correctional officers in front of the jury during the visit; there was a potential for
inadvertent contact between jurors and correctional officers or inmates; and there was a
potential for violence at the prison which could prejudice the jury's view of the defendant.
The court concluded a site visit would be educational; would allow the jury to see
what was being referenced in the testimony; and would, for example, allow the jury to
2 Subsequent statutory references are to the Penal Code.

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see the distance between the bathroom and the classroom. Recognizing that a visit
created a risk of improper influences on the jury, the court took precautions to prevent
this from occurring, including: preparing a pre-approved script about what the court
would say to the jury; limiting the areas the jury would visit to the locales referred to
during trial; requiring that the prison be in lockdown status so there would be no
interaction between the jury and the inmates; requiring the absence of any correctional
officers who were trial witnesses; and allowing Gomez to wear concealed handcuffs and
to be free of leg and ankle shackles so he could walk freely and without visible restraints.
At the time of the visit, the court told the jurors that the purpose of the visit was to
give them a firsthand view of certain areas that had been referred to during trial. The
court advised the jurors that no attempt had been made to recreate the scene as it existed
on the date of the offense and in particular they should not assume the classroom was in
exactly the same configuration; rather, they should rely on their notes and the
photographs and diagrams presented during trial. At the prison, the jury visited the
education building, the gymnasium, and the dining hall. In the education building, they
observed the exit sign, the inmates' bathroom, the classroom, and Officer Cuevas's office.
At the beginning of the visit while the jurors were in a yard outside the education
building, an alarm over the education building sounded. In response to the alarm, several
correctional officers moved quickly toward the education building; however, another
officer signaled that it was a false alarm and yelled that the alarm should be turned off.
Gomez, who was standing near the door of the education building, was ordered to "get
down" as correctional officers ran towards the building. Gomez complied with the order

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by squatting down against the wall of the building and using his hands to steady himself,
which action made his handcuffs visible. When the alarm sounded, the trial judge, the
prosecutor, and the jurors were standing a substantial distance from Gomez and his
counsel.3 From that distance, the prosecutor saw Gomez squatting but she could not hear
the correctional officers direct him to get down and she could not see his handcuffs.4
During the visit an inmate put an 8 1/2-by-11-inch sign in the window of the
prison library that read "not guilty." Defense counsel saw the sign; however, the judge
and the prosecutor did not see the sign as they walked by the law library.5 It was not
known whether jurors saw the sign.
Gomez unsuccessfully moved for mistrial because of these occurrences during the
site visit.6
On appeal, Gomez argues that the court abused its discretion (1) in allowing the
visit to the prison, and (2) in failing to conduct an inquiry of the jury regarding the
incidents that occurred during the visit. He asserts that because of these errors, he was
denied his constitutional rights to a fair trial by an impartial jury.
3 Defense counsel and the prosecutor opined that the distance was 30 to 50 feet,
whereas the trial judge thought it was 30 to 40 yards.
4 The trial judge did not see Gomez at all during the sounding of the alarm.
5 A bailiff informed the prosecutor of the sign and showed it to her after she had
already passed the law library window.

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B. Analysis
1. Discretion to Allow the Visit
Gomez contends it was an abuse of discretion to allow the visit to the prison
because there were no disputed issues pertinent to the prison site, and thus the visit did
not provide the jury with any relevant information. Gomez points out that there were
photographs and diagrams showing the layout of the classroom and the prison, and
asserts that actual observation of a maximum security prison site by the jury was
unnecessary and potentially prejudicial to the defense. As to the potential for prejudice,
he suggests that the "proof is in the pudding"—i.e., the unexpected incidents that did in
fact occur during the visit (the alarm and the "not guilty" sign) underscore the correctness
of his position that it was an abuse of discretion to allow the visit absent a compelling
reason to justify it.
Section 1119 provides: "When in the opinion of the court, it is proper that the jury
should view the place in which the offense is charged to have been committed, or in
which any other material fact occurred, or any personal property which has been referred
to in the evidence and cannot conveniently be brought into the courtroom, it may order
the jury to be conducted in a body, in the custody of the sheriff or marshal, as the case
may be, to the place, or to the property, which must be shown to them by a person
appointed by the court for that purpose; and the officer must be sworn to suffer no person
6 Gomez also moved for a mistrial based on the fact that trash cans, present during
the crime, had been removed from the education building at the time of the visit. On
appeal, he does not reiterate this ground as a basis for reversal.

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to speak or communicate with the jury, nor to do so himself or herself, on any subject
connected with the trial, and to return them into court without unnecessary delay, or at a
specified time."
Section 1119 gives the court specific statutory authority to permit the jury to view
the scene of the crime. (See People v. Robinson (1970) 5 Cal.App.3d 43, 47.) The
statute has been interpreted to preclude any communications during a site visit that would
constitute "extraneous contact and potential tampering." (People v. Bolin (1998) 18
Cal.4th 297, 324.) Additionally, the courts have held that the defendant and defense
counsel have the right to be present during the jury view of the scene because a site visit
provides visual evidence to the jury. (People v. Bush (1886) 68 Cal. 623, 630-631.)
We review a trial court's decision on a motion for jury view under the abuse of
discretion standard. (People v. Lawley (2002) 27 Cal.4th 102, 158.) When evaluating a
trial court's decision denying a request for a site visit, appellate courts have readily found
no abuse of discretion and emphasized that "'it is difficult to conceive of a case in which
the facts would justify a reversal for an abuse of such discretion.'" (People v. Wheeler
(1971) 23 Cal.App.3d 290, 312, overruled on other grounds in People v. Wheeler (1978)
22 Cal.3d 258, 286-287, fn. 35, quoting People v. Wong Hing (1917) 176 Cal. 699, 705.)
However, on the issue of whether a site visit should be permitted, our Supreme Court
long ago cautioned: "'Sending a jury out to view premises, even when clearly within
section 1119 of the Penal Code, is a hazardous proceeding, and frequently leads to
difficulties; and it would be well for trial courts not to make use of the power therein
given except in cases which seem to imperatively call for it.'" (People v. Wong Hing,

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supra, 176 Cal. at p. 705.) Thus, a sound exercise of trial court discretion under section
1119 requires the court to consider whether the site visit is sufficiently relevant to the
issues at trial so as to warrant the risk of exposing the jury to improper outside influences.
Here, we conclude the record does not show the site visit was sufficiently relevant
to justify the risk of untoward exposure.
The record here reveals that during witness testimony, various areas of the prison
were described and referred to, including the education building where inmates were
patted down prior to entry and the separate gymnasium and dining hall structures where
inmates were escorted during the class breaks. The witnesses described the education
building containing the classroom where the assault occurred; the bathroom next to the
classroom where Gomez went just prior to the assault; and the exit sign purportedly
hiding a knife. Additionally, the jury was presented with photographs and diagrams
depicting various prison areas.
Our review of the record supports Gomez's assertion that the references to the
prison layout primarily provided general background information about the crime scene
and were not of any significant relevance to the sole disputed issue of whether Gomez—
who essentially admitted to stabbing Mendibles—acted in self-defense. Neither the
comments by the court and the prosecutor at trial, nor the People's briefing on appeal, are
particularly helpful in explaining why the visit would assist the jury in resolving this
disputed issue. The court's and prosecutor's comments provide no information tying the
prison layout to the question of Gomez's state of mind. On appeal, the People simply

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point to the court's and prosecutor's comments to justify the visit, again without
explaining how the visit provided relevant information.
We have been able to glean some relevance of the site layout to witness
credibility—i.e., in closing argument, the prosecutor referred to the jury's view of the site
and argued that contrary to the testimony of defense witnesses, it was unlikely that an
inmate would have been able to hide, check on, or retrieve a knife on top of the exit sign
(which required standing on a trash can to reach the sign) without this conduct being
observed by correctional officers. However, notwithstanding that the layout of the prison
site may have had some relevance, this is not a case which "imperatively call[s] for [a site
visit].'" (People v. Wong Hing, supra, 176 Cal. at p. 705.) Going to the site required that
the prison be placed in lockdown to avoid contact between the jurors and inmates, and
that the defendant be dressed in a prison uniform, accompanied by several correctional
officers, and shackled (albeit in the least obvious manner possible) if he wanted to
exercise his right to join the jurors on the visit.7 As recognized by the court and argued
by the defense, the potential existed that something could occur at the site to improperly
influence the jury, and, prophetically, there were unexpected occurrences notwithstanding
the diligent protective measures taken by the court. Given the potential for problems
inherent in the jury's departure from the courtroom, the court abused its discretion in
7 Gomez was dressed in the blue prison uniform, and the chain of his handcuffs was
threaded through his clothing so the restraints were not visible as long as he kept his
hands in his pockets. He was accompanied by two or three correctional officers and
defense counsel.

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allowing the visit without a showing that there was an evidentiary need for a view of the
scene.
Although we conclude the record does not show sufficient relevancy to justify the
visit, reversal is not warranted unless the trial court's decision "result[ed] in a manifest
miscarriage of justice." (People v. Lawley, supra, 27 Cal.4th at p. 158.) We see no
miscarriage of justice arising from the fact of the site visit alone. We are not persuaded
by Gomez's assertion that the fact that the site visit was to a maximum security prison in
and of itself prejudiced the defense. The jury already knew Gomez was a life prisoner,
subject to custody and restraint by the state, because he was charged with the offense of
assault by a life prisoner and he testified regarding his status. The fact that the visit was
to a prison did not provide the jury with any information they did not already have.
Gomez's argument that the visit to the prison was comparable to excessive or unnecessary
shackling of a defendant at trial (see People v. Mar (2002) 28 Cal.4th 1201, 1216), is
unavailing. Gomez was allowed to walk without leg restraints and his handcuffs were
hidden in his clothes. Thus, the site visit did not cause him to be portrayed as a prisoner
particularly prone to violence. We see no prejudice arising from the mere fact of the
visit.
2. Occurrences During the Visit
We turn next to the question of whether the actual occurrences during the prison
visit require reversal of the judgment. Gomez argues reversal is required because the trial
court denied his request that the jurors be questioned regarding the alarm and "not guilty"

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sign incidents, and thus he contends it is impossible to determine whether any jurors were
prejudiced by the incidents.
After defense counsel and the prosecutor testified to their observations of these
incidents, and the court set down its own observations, the court denied the motion for
mistrial. The court noted that the alarm was of short duration and quickly turned off;8
the jury was a substantial distance from Gomez when the alarm sounded; there was
nothing to connect Gomez's presence to the alarm; and there were no reactions from
jurors suggesting they were affected by the alarm. The trial judge commented that he had
not seen the "not guilty" sign when he walked by the law library. The court agreed to
admonish the jury that the alarm incident was not planned and had nothing to do with
Gomez's presence; the sign was apparently placed by mischievous inmates and Gomez
had nothing to do with it; and the jury should disregard any of these observed items. The
defense later requested that the admonishment not be given in order not to re-emphasize
the matters. No admonishment was given.
Whenever the court is put on notice that good cause to discharge a juror may exist
because of improper influences, the court must conduct whatever inquiry is reasonably
necessary to determine the alleged facts. (People v. Cleveland (2001) 25 Cal.4th 466,
477; People v. Davis (1995) 10 Cal.4th 463, 547.) However, not every incident requires
further investigation. (People v. Cleveland, supra, at p. 478.) "'The decision whether to
8 Defense counsel believed the alarm sounded for at least one minute; the prosecutor
thought it lasted for "a matter of seconds"; and the trial judge thought it lasted for no
more than 15 seconds.

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investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate
decision to retain or discharge a juror—rests within the sound discretion of the trial
court. [Citation.] [¶] As our cases make clear, a hearing is required only where the court
possesses information which, if proven to be true, would constitute "good cause" to doubt
a juror's ability to perform his duties and would justify his removal from the case.
[Citation.]'" (Ibid.) A jury's impartiality may be challenged by events which are of such
a character as to suggest the likelihood that one or more members of the jury were
influenced by improper bias. (In re Hamilton (1999) 20 Cal.4th 273, 294.)
Here, we see no abuse of discretion arising from the trial court's decision not to
question the jurors about the incidents occurring at the site visit. The trial judge himself
was present during the visit, and thus he was capable of evaluating the occurrences based
on his own personal knowledge. Both the prosecutor and defense counsel testified
regarding their observations of the incidents. Given the wide discretion afforded the trial
court to ascertain whether there may be good cause for discharge, we will not second-
guess the trial court's observation that the sounding of the alarm did not cause any
significant reaction by the jurors. Even assuming jurors saw Gomez squat to the ground
and briefly saw his handcuffs, the court could reasonably conclude that this occurrence
did not subject him to any significant humiliation or undue restraint which might cause
jurors to draw adverse inferences against him. Likewise, even assuming that jurors
noticed the sign in the window, this incident was not so egregious as to warrant
disturbing the trial court's conclusion that it was not of such a character as to raise the
possibility of influencing the jury. Gomez was not the one displaying the "not guilty"

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sign, and the court could reasonably find it was unlikely the jurors would view the sign as
operative one way or the other on the ultimate decision of his guilt.
In sum, the record supports the conclusion that the occurrences, even if noticed by
jurors, were not of a character to have improperly influenced the jury, and thus they
would not constitute good cause for discharge of jurors. Accordingly, the court did not
err in declining to examine the jurors about the incidents and in denying the motion for
mistrial. Alternatively, even assuming arguendo the trial court should have made an
inquiry of the jury to determine whether the occurrences had any impact on jurors, we
conclude any such error was harmless beyond a reasonable doubt given the showing in
the record, set forth above, that the occurrences were innocuous. Accordingly, reversal is
not warranted. (See People v. McNeal (1979) 90 Cal.App.3d 830, 840.)
II. CALJIC No. 2.62
Gomez argues there was no evidentiary basis for the trial court to instruct the jury
with CALJIC No. 2.62, which allows the jury to draw adverse inferences against a
testifying defendant if the jury finds the defendant failed to explain or deny evidence
against him. The court instructed the jury: "In this case defendant has testified to certain
matters. [¶] If you find that the defendant failed to explain or deny any evidence against
him introduced by the prosecution which he can reasonably be expected to deny or
explain because of facts within his knowledge, you may take that failure into
consideration as tending to indicate the truth of the evidence, and as indicating that
among the inferences that may reasonably be drawn therefrom those unfavorable to the
defendant are the more probable. [¶] Failure of the defendant to deny or explain

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evidence against him does not by itself warrant an inference of guilt, nor does it relieve
the prosecution of its burden of proving every essential element of the crime [and] of the
guilt of the defendant beyond a reasonable doubt. [¶] If the defendant does not have
knowledge that he would need to deny or explain evidence against him, it would be
unreasonable to draw an inference unfavorable to him because of his failure to deny or
explain this evidence."
CALJIC No. 2.62 is proper when a defendant testifies but fails to deny or explain
inculpatory evidence within the defendant's knowledge. (People v. Belmontes (1988) 45
Cal.3d 744, 783; People v. Saddler (1979) 24 Cal.3d 671, 682.) The instruction is also
appropriate when "'the defendant tenders an explanation which, while superficially
accounting for his activities, nevertheless seems bizarre or implausible . . . '" so that it
could be deemed a failure to explain or deny. (People v. Belmontes, supra, 45 Cal.3d at
p. 784; People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1030.) The instruction may
be given when there are logical gaps in the defendant's testimony arising from his or her
failure to explain or deny inculpatory evidence. (People v. Redmond (1981) 29 Cal.3d
904, 911.) However, mere contradictions between the testimony of the prosecution
witnesses and the defendant's testimony do not constitute a failure to explain or deny
within the meaning of CALJIC No. 2.62. (People v. Saddler, supra, 24 Cal.3d at p. 682.)
The test for the instruction is not whether the defendant's testimony is believable, but
whether the defendant has failed to explain or deny matters within his or her knowledge.
(People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) The instruction should not "'be
requested by either side unless there is some specific and significant defense omission

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that the prosecution wishes to stress or the defense wishes to mitigate.'" (Id. at p. 1470,
italics omitted.)
Gomez asserts that he did not fail to explain or deny any significant evidence
against him. To justify the instruction, the prosecution pointed to Gomez's failure to
explain his actions during the stabbing because of his claimed blackout and his failure on
cross-examination to recognize the knife he used, and also cited some specific areas
where Gomez's testimony was inconsistent or contradicted by another witness. The trial
court reasoned that the instruction was warranted because "the principal issue relates to
the defendant's state of mind, and there may be a myriad of issues relevant thereto which
the trier of fact could conclude have not been properly or adequately addressed."
On appeal, the People argue Gomez's explanations of the circumstances made no
sense in terms of his claim of self-defense, so as to constitute a failure to explain
warranting the instruction. The People point to the following aspects of Gomez's
testimony: Gomez approached Mendibles to talk to him even after he was afraid
Mendibles would stab him; Gomez had contact with the correctional officers but failed to
alert them of his fears; Gomez did not think the stabbing would occur in the classroom
because it was not a "blind spot" and yet he entered the classroom with a knife prepared
to fight; and Gomez claimed to black out during the stabbing thus conveniently forgetting
the inculpatory evidence against him.
Contrary to the People's assertion, the record reveals that Gomez provided
explanations for all of these matters, and the explanations were not so implausible so as
to reasonably allow a jury to construe them as a failure to explain. Gomez explained that

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he was trying to talk to Mendibles to defuse the situation, and if he told the correctional
officers about Mendibles's threats he would be vulnerable to attack from the entire prison
population as a "snitch." He explained that he eventually became afraid the attack could
occur in the classroom because Mendibles told him not to return to the classroom. His
claim that he blacked out during the actual stabbing cannot be characterized as a failure
to explain or deny evidence against him because he admitted that he pulled out a knife
and attacked Mendibles, and asserted his innocence based on self-defense. Given this
admission of the conduct underlying the crime, this is not a case where a defendant
evades an admission or denial by saying he cannot remember. Although the jury was
entitled to reject Gomez's explanations, they nevertheless indicate that the evidentiary
matters cited by the People do not provide a basis to support the failure-to-explain
instruction. Absent an evidentiary basis, the instruction should not have been given.
However, we find there was no prejudice from the instruction. The nature of the
instruction itself indicates the lack of prejudicial effect. The instruction does not tell the
jury that the defendant failed to explain or deny evidence, but rather leaves it to the jury
to ultimately decide this question. Further, the instruction cautions the jury that any such
failure to explain does not by itself warrant an inference of guilt and does not relieve the
prosecution of its burden of proof. We are not persuaded by Gomez's argument that if
there was no evidentiary basis for the instruction, it unfairly urged the jury to question his
veracity while ignoring inconsistencies in the prosecution's evidence in violation of his
constitutional rights. By the express terms of the instruction, if the jury found Gomez did
not fail to explain or deny evidence against him, it would not draw any adverse inferences

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against him in this regard. Any potential for prejudice was further obviated by the court's
giving of CALJIC No. 17.31, stating that the applicability of some instructions depended
on what the jury found to be the facts, and the jury should "[d]isregard any instruction
which applies to facts determined by [the jury] not to exist."
The state of the evidence also shows no reasonable probability of prejudice from
the giving of CALJIC No. 2.62. To establish perfect or imperfect self-defense, the
defendant must show that he actually believed danger was immediate and present; fear of
an attack even in the near future is insufficient. (People v. Humphrey (1996) 13 Cal.4th
1073, 1082; In re Christian S. (1994) 7 Cal.4th 768, 783.) "Fear of future harm—no
matter how great the fear and no matter how great the likelihood of the harm—will not
suffice. The defendant's fear must be of imminent danger to life or great bodily injury.
'"[T]he peril must appear to the defendant as immediate and present and not prospective
or even in the near future. An imminent peril is one that, from appearances, must be
instantly dealt with."'" (In re Christian S., supra, 7 Cal.4th at p. 783, italics omitted.)
Here, even if the jury credited a substantial portion of Gomez's version of the
events, the record contains a strong evidentiary inference to support a finding that Gomez
did not actually believe Mendibles was going to attack him when Gomez entered the
classroom. Gomez admitted that he had not expected Mendibles to stab him in the
classroom because it was an area visible to the teacher. Even though Mendibles told him
not to return to the classroom, Gomez testified that as he returned to the classroom he
was still not sure the attack would occur there. Gomez further acknowledged that
Mendibles had not tried to attack him during the breaks in the gym and the less-

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supervised bathroom. Gomez stated he saw Mendibles flinch or tense up when Gomez
entered the classroom, but did not claim he saw Mendibles reach for or display a knife at
this time. Similarly, the teacher did not observe Mendibles make any move that might
have caused Gomez to believe an attack was imminent. In short, even from Gomez's
description of the incident, the record provides strong support for a conclusion that
Gomez, fearful of an attack by Mendibles at some unknown point in time, engaged in a
preemptive strike under circumstances where he did not actually believe an attack was
immediately forthcoming.
We conclude it is not reasonably probable that the outcome would have been more
favorable to Gomez had the instruction not been given. (People v. Saddler, supra, 24
Cal.3d at p. 683-684; People v. Ballard (1991) 1 Cal.App.4th 752, 756-757; People v.
Lamer, supra, 110 Cal.App.4th at pp. 1471-1472.)
III. Closing Argument
Gomez argues that in rebuttal closing argument, the prosecutor improperly
impugned defense counsel's integrity and appealed to passion and prejudice.
The prosecutor urged the jury to discredit the inmate witnesses because they were
convicted felons who had committed serious crimes. Stating that only one of the inmates
who was in the classroom testified, the prosecutor asserted: "They went out and
handpicked their liars to come in here and to make up this story [¶] . . . [¶] to help out Mr.
Gomez." The prosecutor continued by asserting that the inmates got to go on a bus ride
and see their "homies" by coming to testify; that they had nothing to lose if they
committed perjury given the life sentences they were already serving and they could

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make up any story they wanted; and they contrived a story to get Gomez off. Later,
urging the jury to discredit a particular defense witness, the prosecutor argued: "They
had to find out a way to try and clean him up because he did so poorly. Look at their
demeanor when they were up there testifying. Boxer stuttering. I asked him a simple
question: 'What is Mr. Gomez'[s] moniker?' And he looks at me and says, 'That's not
what I'm here for.' That wasn't part of the script."
It is improper for the prosecutor to suggest that defense counsel sought to deceive
the jury or to otherwise attack the integrity of defense counsel. (People v. Cummings
(1993) 4 Cal.4th 1233, 1302; People v. Hill (1998) 17 Cal.4th 800, 832.) However, the
prosecutor may vigorously attack the defense case based on the evidence, including using
colorful language to argue defense witnesses are not credible and a defense is fabricated.
(People v. Hillhouse (2002) 27 Cal.4th 469, 502; People v. Earp (1999) 20 Cal.4th 826,
863.) We disagree with Gomez's contention that the above-delineated arguments
constituted an attack on defense counsel's integrity. The part of the argument pertaining
to handpicked liars was made in the context of the prosecutor's contention that that the
convicts' testimony was not to be trusted. There was no suggestion that defense counsel
told the inmates to lie. Similarly, the part of the argument pertaining to the stuttering
witness who testified poorly and could not testify beyond the script attacked the
credibility of a defense witness, not the integrity of defense counsel. Contrary to
Gomez's assertion, the reference to a "script" does not suggest that defense counsel
fabricated a script, as opposed to merely preparing the witness to testify. Read in context,

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the arguments were permissible comment on the veracity of defense witnesses and did
not impugn defense counsel's integrity.
To support his argument that the prosecutor made an improper appeal to passion
and prejudice, Gomez cites to the following statement by the prosecutor during rebuttal:
"Ladies and Gentlemen, please look through the smoke and the mirrors. Use your
common sense. Use logic when you go into that room. Don't set some standard where
we give inmates a license to kill, a license to just go in and kill because he will come
back a hero and . . . they'll all know they can get their homies to come down and testify
for him the next time." During closing argument, although defense counsel
acknowledged that prison inmates must be judged by the same standards as everyone
else, he nevertheless urged the jury to consider the nature of the prison environment,
including that Mendibles was a very violent inmate, the prison was a very violent place,
and that inmates were repeatedly assaulted and killed without being protected by the
prison officials. By urging the jury not to give Gomez a license to kill, the prosecutor
was telling the jury not to apply a different standard merely because the killing occurred
in a prison. In the context of this case, the prosecutor's argument was reasonably
responsive to defense counsel's argument. To the extent the prosecutor was urging a
conviction in order to send a message to the inmate community, the statement was brief
and not likely to have affected the verdict.
IV. Cumulative Error
We are not persuaded by Gomez's argument that reversal is warranted because
cumulative errors resulted in an unfair trial. Although we question whether the site visit

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was warranted, we see nothing in the record to undermine the trial court's conclusion that
the prison visit itself, and the occurrences during the visit, did not cause the jury to draw
any adverse inferences against Gomez. If anything, the visit may have made the jury
more sympathetic to his claimed fear of attack by a dangerous inmate. Although the
People have not cited any evidence to support the giving of CALJIC No. 2.62 based on
Gomez's failure to explain evidence against him, the instruction by its terms became
operative only if the jury first found a failure to explain. Moreover, the lack of
prejudicial effect is supported by the strong evidentiary inferences in support of the jury's
verdict arising from Gomez's own testimony. Finally, the prosecutor's rebuttal argument
was within the range of permissible advocacy.
SENTENCING
Gomez's sentence included (1) life without possibility of parole for assault by a
life prisoner with a deadly weapon with malice aforethought (count two); (2) 15 years to
life (tripled to 45 years to life under the Three Strikes law) for second degree murder
(count one); and (3) an upper term of four years for custodial possession of a knife.
Additionally, five-year enhancements for a prior serious felony conviction were added to
the sentences on counts one and two. All sentences were stayed except for the life
without possibility of parole and five-year enhancement on count two. The life without
possibility of parole sentence for count two and its five-year enhancement were ordered
to run consecutive to the sentence (another life without possibility of parole) Gomez was
serving at the time of the instant murder. Our court recently considered the impact of
Blakely v. Washington, supra, 124 S.Ct. 2531 (Blakely) on California's sentencing

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scheme. In People v. George (2004) 122 Cal.App.4th 419, 424-425, and People v. Lemus
(2004) 122 Cal.App.4th 614, 620-621, we concluded that Blakely is applicable to upper
terms and the sentencing error required reversal. As we shall explain, we adhere to this
holding here. We also hold Blakely is not applicable to consecutive sentences.9
The Blakely Decision
In Blakely, the United States Supreme Court held the defendant's Sixth
Amendment right to trial by jury was violated when a Washington sentencing court
imposed an "exceptional" sentence that was three years beyond the state's "standard
range" maximum for the crime. (Blakely, supra, 124 S.Ct. at pp. 2535-2538.) The
exceptional sentence was based on the sentencing court's factual finding of an aggravated
circumstance of deliberate cruelty. (Ibid.) Blakely applied the rule of Apprendi v. New
Jersey (2000) 530 U.S. 466, 490, which provides: "'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.'"
(Blakely, supra, 124 S.Ct. at p. 2536.) The Blakely court defined the "'statutory
maximum'" as "the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant." (Id. at p. 2537.) That is,
the test to determine the unconstitutionality of a sentence derived from factual findings
9 A split exists in this court on the applicability of Blakely. In People v. Wagener
(2004) 123 Cal.App.4th 424, this court held Blakely was inapplicable to California's
middle/upper term sentencing scheme. We decline to follow Wagener. The issue of
Blakely's application to California's sentencing scheme is currently pending before the

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by a court rather than a jury is whether the sentence is "greater than what state law
authorize[s] on the basis of the verdict alone." (Id. at p. 2538, italics added.) The
Blakely court did not, however, limit all fact-finding by a sentencing judge—rather,
distinguishing determinate from indeterminate sentencing schemes, the court explained
that a judge may impose a sentence based on additional facts as long as the sentence does
not exceed the sentence to which the defendant has a legal right under the state's statutory
scheme. (Id. at p. 2540 [facts ruled upon by court under indeterminate scheme do not
violate jury trial right because the facts "do not pertain to whether the defendant has a
legal right to a lesser sentence"].)
Applicability of Blakely to Upper Term Sentences
Under California's determinate sentencing law, where a penal statute provides for
three possible terms for a particular offense, the sentencing court is required to impose
the middle term unless it finds, by a preponderance of the evidence, that the
circumstances in aggravation outweigh the circumstances in mitigation. (§ 1170, subd.
(b); Cal. Rules of Court,10 rule 4.420.) Because this sentencing scheme requires
selection of the middle term unless the court finds aggravating or mitigating
circumstances, the middle term is viewed as the sentence to which the defendant is
presumptively entitled. (People v. Avalos (1984) 37 Cal.3d 216, 233; People v. Reeder
(1984) 152 Cal.App.3d 900, 923; People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-
California Supreme Court. (People v. Towne, review granted July 14, 2004, S125677;
People v. Black, review granted July 28, 2004, S126182.)

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1583 ["midterm is statutorily presumed to be the appropriate term"].) Further, in order to
avoid punishing the defendant twice based on the same fact, a fact that is an element of
the crime or the basis of an imposed enhancement may not be used to select the upper
term. (§ 1170, subd. (b); rule 4.420(c) & (d); People v. Scott (1994) 9 Cal.4th 331,
350.)11 Thus, the upper term cannot be based on matters included in the jury verdict—
that is, the elements of the crime and imposed enhancements.
Although there are some differences between the Washington and California
sentencing schemes, we conclude that for purposes of the core concerns set forth in
Blakely, California's upper term sentencing scheme is comparable to the scheme
evaluated in Blakely. The Washington sentencing court was authorized to impose an
exceptional sentence based on a court finding of aggravating factors, which factors must
be distinct from the elements of the crime used to compute the standard range sentence,
and thus distinct from the matters encompassed within the jury verdict or guilty plea.
(Blakely, supra, 124 S.Ct. at pp. 2535, 2537-2538.) Similarly, California courts are
authorized to impose an upper term sentence based on a court finding of aggravating
factors, which factors must be distinct from the elements of the crime and imposed
enhancements encompassed within the jury verdict. In Blakely, the United States
Supreme Court rejected the contention that the maximum term set forth in the exceptional
sentence statute should be viewed as the statutory maximum, and instead concluded that
10 Subsequent references to rules are to the California Rules of Court.

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the statutory maximum was the term set forth in the standard range statute, because the
latter is the only sentence which may be imposed "solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant." (Id. at p. 2537, italics
omitted.)
Absent direction from the California Supreme Court or Legislature, we are
compelled to apply Blakely's holding here—i.e., the statutory maximum for an offense is
not the upper term but rather is the middle term, because the latter is the presumptively
correct term and is the only term that does not require findings beyond the jury verdict to
justify its imposition. Accordingly, because the upper term increases the penalty beyond
the statutory maximum, it cannot be imposed unless it is based on the fact of a prior
conviction or facts found by the jury beyond a reasonable doubt.
In sum, based on the middle/upper term sentencing scheme, we conclude that,
except to the extent a sentencing court relies on the fact of a prior conviction or matters
included in the jury verdict, a court's selection of the upper term is proscribed by Blakely
because (1) it exceeds the sentence to which the defendant has a legal right under the
statutory scheme, and (2) it requires fact-finding by the court beyond the facts reflected in
the jury verdict. (People v. George, supra, 122 Cal.App.4th at p. 425; People v. Lemus,
supra, 122 Cal.App.4th at pp. 620-621.)
11 A court may utilize an enhancement to impose the upper term if it can, and does,
strike the enhancement. (Rule 4.420(c).)

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Inapplicability of Blakely to Consecutive Sentences
However, the same conclusion does not apply to a sentencing court's selection of a
consecutive, rather than concurrent, sentence. Similar to the middle term, a consecutive
sentence requires the sentencing court to consider additional facts beyond the elements of
the crime or imposed enhancements to justify the punishment, and absent a determination
in this regard a concurrent sentence will be imposed. (§ 669; rules 4.425, 4.406(b)(5).)
However, what is markedly different from an upper/middle term option for purposes of
Blakely analysis is that there is nothing in California's sentencing scheme suggesting the
defendant is entitled to a concurrent rather than a consecutive sentence. As explained in
People v. Reeder, supra, 152 Cal.App.3d at p. 923: "While there is a statutory
presumption in favor of the middle term . . . , there is no comparable statutory
presumption in favor of concurrent rather than consecutive sentences for multiple
offenses except where consecutive sentencing is statutorily required. The trial court is
required to determine whether a sentence shall be consecutive or concurrent but is not
required to presume in favor of concurrent sentencing."12 Absent a statutory
presumption in favor of a concurrent sentence, a jury verdict finding the defendant guilty
of more than one offense implicitly authorizes a consecutive sentence for each of those
offenses. The lack of statutory entitlement to a particular sentence "makes all the
12 The distinct language used in the penal statutes regarding these sentencing choices
reflects the qualitative difference between a middle term and a concurrent sentence.
Section 1170, subdivision (b) states: "the court shall order imposition of the middle term,
unless there are circumstances in aggravation or mitigation of the crime." In contrast,

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difference insofar as judicial impingement upon the traditional role of the jury is
concerned." (Blakely, supra, 124 S.Ct. at p. 2540.)
Moreover, neither Blakely nor Apprendi arose in the context of sentencing for
multiple offenses. Blakely circumscribed the court's imposition of punishment beyond
the prescribed statutory maximum for a single offense, based on an underlying concern
that a state not circumvent the right to trial by jury by in effect reclassifying elements of
an offense as sentencing factors, or by converting a separate crime into a sentence
enhancement. (Blakely, supra, 124 S.Ct. at pp. 2537, fn. 6, 2539-2540 & fn. 11.) When
a sentencing court selects a consecutive sentence, it is simply deciding that the defendant
shall separately serve the sentence authorized by the jury verdict for the particular
offense, rather than exercising leniency to allow the prescribed punishment for two
separate offenses to be served at the same time. This sentencing choice does not
implicate Blakely. (Accord People v. Jaffe (2004) 122 Cal.App.4th 1559, 1589; People v.
Vaughn (2004) 122 Cal.App.4th 1363, 1372.)
Analysis of Gomez's Sentence
Having concluded that Blakely is applicable to California's upper term, but not
consecutive, sentencing scheme, we consider Gomez's challenge to the imposition of an
upper term.
Preliminarily, we reject the People's argument that Gomez has waived the issue by
failing to raise an Apprendi objection to the trial court. As a federal court aptly stated,
section 669 merely states that when there are multiple convictions the court shall "direct

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Blakely "worked a sea change in the body of sentencing law." (U.S. v. Ameline (9th Cir.
2004) 376 F.3d 967, 973, & fn. 2.) Prior to Blakely, it was widely assumed that the upper
term was the statutory maximum within the meaning of Apprendi. (See, e.g., In re
Varnell (2003) 30 Cal.4th 1132, 1142 [stating, without discussion, that upper term of
three years was statutory maximum under Apprendi]; see § 18.) Gomez was not required
to anticipate an extension of Apprendi to California's middle/upper term sentencing
scheme. The pragmatic waiver rule of People v. Scott, supra, 9 Cal.4th at p. 353, which
applies to sentencing issues that could have been corrected by the trial court, does not
apply here. (People v. George, supra, 122 Cal.App.4th at p. 424.)
We now turn to the merits of Gomez's sentence. Under Blakely, the constitution
requires a jury trial on facts (other than the fact of a prior conviction) which determine
whether the defendant will be given a sentence greater than the statutory maximum.
Based on our conclusion that the statutory maximum is the middle term, the trial court
may only impose the upper term if it utilizes the fact of a prior conviction or matters
included in the jury verdict.13
Here, the trial court recognized that it had not stated reasons for the upper term for
the knife possession conviction, and Gomez expressly agreed the court need not state its
reasons. Because we do not know the sentencing factors the court relied upon, we are
whether the terms of imprisonment . . . shall run concurrently or consecutively."
13 For example, if a court strikes an enhancement found by the jury and then uses the
enhancement to impose the upper term (rule 4.420 (c)), this procedure would comply
with Blakely's jury-determination requirement.

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unable to ascertain whether the upper term would have been imposed under the Blakely
constraints. Thus, regardless of whether we apply the harmless beyond a reasonable
doubt standard (see People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [Apprendi
error]) or reasonable probability of a different outcome standard typically applied to error
in the court's delineation of reasons (see People v. Price (1991) 1 Cal.4th 324, 492), the
sentence must be reversed and remanded for resentencing.14
DISPOSITION
The judgment is affirmed as to the convictions. The judgment is reversed as to the
sentence and remanded for resentencing in a manner consistent with this opinion.
HALLER, J.
WE CONCUR:
M C CONNELL, P.J.
M C INTYRE, J.
14 For guidance on remand, we note that the record suggests the possibility that
Gomez was a juvenile when he committed his prior conviction. If this is so, we direct the
parties' and court's attention to People v. West (1984) 154 Cal.App.3d 100, 107-108 and
People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10, regarding the rule against
using prior juvenile convictions to impose the five-year enhancement under section 667,
subdivision (a)(1).

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