Opinion
H047413
01-06-2022
In re PEDRO JESUS GOMEZ, on Habeas Corpus.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS002126
Greenwood, P. J.
Pedro Jesus Gomez petitions for habeas relief from his conviction for attempted murder in connection with a shooting outside a Salinas restaurant in 2000. He is currently serving a term of life consecutive to 35 years in state prison.
The identity of the shooter was the central issue at trial. Gomez denied shooting the victim and testified that his cousin Carlos Gomez was the shooter. On direct appeal in 2003, we concluded the trial court erroneously excluded testimony that Carlos had confessed to the shooting but we found the error harmless and affirmed the conviction.
We will refer to Carlos and other members of the Gomez family by their first names to avoid confusion.
In 2006, habeas counsel for Gomez discovered a police-made videotape of a photographic lineup identification by eyewitness Emilio Zendejas. At trial, Zendejas had testified for the prosecution that the police had shown him a photographic lineup on the night of the shooting. He testified he was 80 or 90 percent certain that Gomez was the shooter. In the video discovered by habeas counsel, however, Zendejas identified another person as the shooter.
Among other claims, Gomez now alleges his trial counsel rendered ineffective assistance by failing to investigate the video and cross-examine Zendejas concerning his identification of another person as the shooter in the photographic lineup. Gomez further alleges cumulative prejudice from this and other errors.
For the reasons below, we conclude defense counsel rendered deficient performance by failing to investigate the video and confront Zendejas at trial with his contradictory identification. Furthermore, we conclude relief is merited given the cumulative prejudice from this error combined with prejudice from the erroneous exclusion of Carlos's confession. We will vacate the judgment of conviction.
I. Factual And Procedural Background
A. Procedural Background
In 2001, a jury found Gomez guilty of attempted willful, deliberate and premeditated murder and assault with a firearm. (Pen. Code, §§ 187, subd. (a), 245, subd. (b), 664.) The jury also found true the allegations that Gomez committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang, and that he intentionally and personally discharged a firearm causing great bodily injury. (§§ 186.22, subd. (b)(1), 12022.53, subd. (d).) The trial court imposed an aggregate term of life consecutive to terms of 25 years to life for the firearm enhancement and 10 years for the gang enhancement. The court also imposed a nine-year term on the assault count, plus two consecutive 10-year enhancements for the gang and firearm enhancements for a term of 29 years, which the court stayed under section 654.
Subsequent undesignated statutory references are to the Penal Code.
In 2003, we affirmed the conviction on direct appeal. We held the trial court had erred by excluding testimony from Ruben Gomez-an uncle to Gomez and Carlos-who would have testified at trial that Carlos confessed to shooting Zarate. We found the error harmless, however, because other witnesses-including Zendejas-had identified Gomez as the shooter.
People v. Gomez (July 18, 2003, H022934) [nonpub. opn.]. We take judicial notice of that opinion and we grant Gomez's request to take judicial notice of the record filed in that matter. (Evid. Code, §§ 452, 459.)
In 2005, Gomez petitioned for a writ of habeas corpus in Monterey County Superior Court. He raised eight claims, including two claims that trial counsel had rendered ineffective assistance; a claim that the prosecutor at trial had violated her Brady obligations by failing to produce the video of the photographic lineup in pretrial discovery; due process violations; and a claim of newly discovered evidence. After multiple evidentiary hearings, the trial court denied these claims.
Brady v. Maryland (1963) 373 U.S. 83.
In 2019, Gomez petitioned this court for a writ of habeas corpus alleging the same claims raised in the superior court. After we summarily denied the petition in December 2020, Gomez petitioned for review in the California Supreme Court. The Supreme Court granted the petition for review and transferred the matter back to this court with instructions to vacate our summary denial and issue an order to show cause as to four of the claims in Gomez's petition.
Shortly thereafter, the Supreme Court issued its opinion in People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke), discussed below, which acknowledged the significance of empirical research casting doubt on the reliability of witness certainty in eyewitness identifications.
In accordance with the Supreme Court's order, we vacated our order denying the petition and issued an order to show cause returnable in this court. We ordered the Attorney General to show cause why relief should not be granted on the grounds that: trial counsel rendered ineffective assistance when he failed to investigate and utilize the video recording of the Zendejas lineup identification; counsel rendered ineffective assistance by failing to present testimony from another eyewitness; newly discovered evidence in the form of a declaration from Gomez's cousin entitles Gomez to relief under Penal Code section 1473, subdivision (b)(3)(A); and these errors cumulatively entitle him to relief.
We set forth the facts more fully in our opinion affirming the conviction on direct appeal.
The charges arose from a shooting outside an Applebee's in Salinas in 2000. Gomez and two of his cousins-Carlos Gomez and Carmen Gomez-were at the Applebee's along with others when they attempted to leave without paying their bill. The victim, Pedro Zarate, confronted Gomez and Carlos outside the restaurant. Zarate was shot in the chest but survived. Witnesses saw the shooter get into a truck driven by Carmen, which she then drove away.
The identity of the shooter was the central issue at trial, held in 2001. Gomez testified that Carlos shot Zarate. Although Zarate had previously identified a photo of Gomez as the shooter, Zarate denied Gomez was the shooter in his trial testimony. Zarate testified that the other man next to Gomez was the shooter, and that he (Zarate) had grabbed Gomez and pulled Gomez in front of him (Zarate) in attempt to block the bullets.
Other eyewitnesses testified either that Gomez shot Zarate, or that the shooter was wearing a red shirt, as was Gomez. In his testimony, Gomez conceded he was wearing a burgundy sweatshirt but he testified Carlos was wearing a burgundy shirt as well. This testimony was corroborated by at least one other witness.
The details of this testimony are discussed in detail in section II.C. below.
Emilio Zendejas testified at trial that he and his wife were parked outside the Applebee's on the night of the shooting. He saw two males between 17 and 18 years old coming from another parked vehicle towards the Applebee's. They came within three to four feet of Zendejas's vehicle. One of them was wearing a red shirt or jacket, was around five feet and three or four inches tall, weighed around 155 to 160 pounds, and had short hair. The other male was shorter by about an inch or an inch and a half, was a little heavier, and wore a white shirt. Another male came out of the Applebee's and confronted the two males in the parking lot. The male in the red shirt started yelling at the man who had come out of the Applebee's and hit him in the face. The man from the Applebee's then pushed the man in the red shirt, who fell onto the ground. The man in the red shirt then started getting back up. Zendejas testified, "When he come up [sic] he kind of reached in the back and that's when I saw something that I could say it was a pistol and started pointing at the guy at the [Applebee's] and started shooting." The shooter fired three to five shots, and the victim ran back into the Applebee's. Another person drove up in a dark Suburban, got out with another gun, and said, "[D]on't move." The male in the white shirt got into a pickup, the shooter got into a red Honda or other small car, and the vehicles drove away.
The prosecutor then questioned Zendejas about his interview with the police on the night of the shooting. The following exchange took place:
"[Prosecutor:] I'm going to show you what's been marked as People's Exhibit Number 3, which is Line-up Number A. You were shown this line-up on the night in question. [¶] And do you recall pointing to any of the persons and saying they looked familiar to you?
"[Zendejas:] I don't recall.
"[Prosecutor:] Okay. Do you recall talking to Detective Carmena?
"[Zendejas:] Yes.
"[Prosecutor:] And did you talk to him in English or in Spanish?
"[Zendejas:] English.
"[Prosecutor:] And do you recall telling Detective Carmena that the person in the Number 2 position
"[Defense counsel:] Objection, your Honor. That's leading and that's hearsay.
"[Zendejas:] If I had to pick one
"[Defense counsel:] Excuse me. Excuse me.
"[Trial court:] Sustained.
"[Prosecutor:] Sir, did you on that night point to any of the photographs in that line-up and say one looked familiar?
"[Zendejas:] Yeah, in Number 2.
"[Prosecutor:] Did you tell that to Detective Carmena?
"[Zendejas:] Yes.
"[Prosecutor:] And as you sit here today does that person look familiar?
"[Zendejas:] Yes, he does look familiar."
After the trial court found that the person in the Number 2 photo position appeared to be Gomez, the prosecutor continued:
"[Prosecutor:] Could you tell the officer with any degree of certainty that that was or was not the person who you saw do the shooting?
"[Zendejas:] Because there is a doubt in my mind I'm not going to assure that it is, okay?
"[Prosecutor:] How certain are you as you sit here today?
"[Zendejas:] 80, 90 percent probably.
"[Prosecutor:] I'm sorry?
"[Zendejas:] 80 percent. "[Prosecutor:] How certain are you that the person who did the shooting was the person wearing the red sweatshirt or T-shirt?
"[Zendejas:] Hundred percent." On cross-examination, defense counsel questioned Zendejas about the photographic lineup as follows: "[Defense counsel:] Mr. Zendejas, you pointed to the picture in the Number 2 slot and said this person looks familiar; is that correct?
"[Zendejas:] Correct.
"[Defense counsel:] And when they asked you to be more specific you told them you couldn't positively identify that person as doing anything in particular; am I right?
"[Zendejas:] Right."
Defense counsel never introduced any evidence of the video and never questioned Zendejas about any of the conflicting statements he had made in the course of the lineup procedure.
C. Postconviction Discovery and Hearings 1. Discovery of the Videotape
In 2006, habeas counsel obtained a videotape of police interviewing Zendejas on the night of the shooting. The video shows that a detective presented Zendejas with two "six-pack" photographic lineups labeled "A" and "B". Gomez's photo was in position "#2" of lineup "A". Carlos was not in either of the photo lineups.
After Zendejas examined the twelve photos for about a minute, a detective asked Zendejas, "Do you see anybody in those that looks familiar?" Zendejas responded, "I see two guys that may according to the body and color." Zendejas then pointed to photo "#1" in lineup "B" (not Gomez) and stated, "This may be the guy, to me he seems the more closer." The detective then asked Zendejas, "How about the other lineup?" Zendejas pointed to Gomez's photo in lineup "A" and said, "Number two. Number two in the second lineup." After examining the lineups further, Zendejas ruled out several other photos. Then he pointed again to the first photo he had identified-"#1" in lineup "B" (not Gomez)-and stated, "But most likely, I remember the face, he had most, uh I, I remember seeing this face, it seemed like this face."
The detective next asked Zendejas to identify which of the photos was that of the shooter. Zendejas identified photo "#1" in lineup "B" (not Gomez) as the shooter, and he identified photo "#5" lineup "B" (not Gomez) as the second person who was with the shooter.
Throughout the interview and prior to the lineup identification, Zendejas and the detective referred to the shooter as "suspect number one" (as distinct from the "#1" as labeled in the photo lineup). The detective asked Zendejas which photo was "suspect number one."
The detective then specifically pointed to Gomez's photo and said, "You pointed to this guy, what does he look like to you?" Zendejas responded, "No, I, I have to say that number one is more, more of what I saw." Zendejas added, "I know that the rest, the rest of the guys, they're different, totally different."
2. Evidentiary Hearings on this Claim
In his habeas petition in the trial court, Gomez raised two claims in the alternative with respect to the video. First, he alleged the prosecutor had violated her Brady obligations by failing to produce the video to the defense at trial. Alternatively, he alleged trial counsel rendered ineffective assistance by failing to present the video evidence at trial and failing to correct Zendejas's testimony about the lineup. The trial court held evidentiary hearings at which the prosecutor, defense counsel, and other witnesses testified about pretrial discovery matters relevant to these claims.
Defense counsel asserted he had never seen the video prior to habeas counsel's discovery of the tape in 2006, and he asserted it had not been provided to him in discovery. If he had seen the video before trial, he would have cross-examined Zendejas about it to correct the false impression given by his testimony. He stated had no tactical reasons for not questioning Zendejas about it.
The prosecutor testified at an evidentiary hearing in 2019. She did not have an independent recollection of the contents of the video, but she testified that she would have reviewed it prior to trial and that her office would have provided it to defense counsel.
The trial court credited the prosecutor's testimony and found the video had been produced to defense counsel. The trial court further found that defense counsel's failure to use the video at trial constituted deficient performance under the Strickland standard.However, the court denied Gomez's claim of ineffective assistance on the ground that Gomez had failed to show he was prejudiced.
Strickland v. Washington (1984) 466 U.S. 668 (Strickland).
II. Discussion
Among other claims, Gomez contends his trial counsel rendered ineffective assistance by failing to investigate and present the video of the Zendejas lineup at trial. The Attorney General contends trial counsel's performance was not deficient because he could have had a strategic purpose for not presenting the video. The Attorney General further contends that even if trial counsel's performance was deficient, Gomez has not shown he was prejudiced.
For the reasons below, we conclude trial counsel's performance fell below professional standards. We further conclude that when the harm from this conduct is considered together with the harm from the evidentiary error we found on appeal, Gomez suffered cumulative prejudice sufficient to undermine confidence in the outcome of the trial. Accordingly, we will grant relief on this claim.
A. Legal Standards
To show ineffective assistance, the petitioner bears the burden to establish both prongs under Strickland. First, he must show trial counsel's performance was deficient: that counsel's performance "fell below an objective standard of reasonableness" in light of the prevailing professional norms. (Strickland, supra, 466 U.S. at p. 688.) Second, the petitioner must show the asserted deficiency in counsel's performance resulted in prejudice: a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
When the trial court has ruled on a habeas claim after an evidentiary hearing, "[W]e give great weight to those of the [trial court]'s findings that are supported by substantial evidence. This is especially true for findings involving credibility determinations. The central reason for referring a habeas corpus claim for an evidentiary hearing is to obtain credibility determinations; consequently, we give special deference to the [trial court] on factual questions 'requiring resolution of testimonial conflicts and assessment of witnesses' credibility, because the [trial court] has the opportunity to observe the witnesses' demeanor and manner of testifying.' [¶] . . . [I]n other areas we give no deference to the [trial court]'s findings. We independently review prior testimony, as well as all mixed questions of fact and law. Whether counsel's performance was deficient, and whether any deficiency prejudiced the petitioner, are both mixed questions subject to independent review. Ultimately, the [trial court]'s findings are not binding on us; it is for this court to make the findings on which the resolution of [petitioner's] habeas corpus claim will turn." (In re Thomas (2006) 37 Cal.4th 1249, 1256-1257 (Thomas).)
B. Trial Counsel's Failure to Investigate the Videotape Constituted Deficient Performance
Substantial evidence supports the trial court's factual finding that the prosecutor produced the video to defense counsel in pretrial discovery, and we defer to that finding. The prosecutor and defense counsel offered conflicting testimony on this point, but the trial court was in the best position to assess their relative credibility. The trial court additionally relied on testimony provided by defense counsel's office manager in finding that that the defense simply misplaced or lost track of the videotape while relocating the office in January 2001.
We also adopt the trial court's conclusion that defense counsel's failure to investigate the video and present it at trial fell below the objective standard of reasonableness under prevailing professional norms. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (Strickland, supra, 466 U.S. at p. 691.) As Gomez's expert on ineffective assistance testified, "Being ignorant about what the evidence is against your client is just not something that's acceptable. That's below standard. [. . .] [I]f there's a video or an audio of the video of [the witness] when they're being shown a lineup, or if there's an in-person lineup, or there's a video, photographs of that, you collect all that and you look at it and you make sure you're on top of it."
The Attorney General contends defense counsel's failure to more fully question Zendejas about on his statements in the video was not objectively unreasonable because a defense attorney could have had a strategic reason for limiting the cross-examination. The Attorney General argues that a reasonable defense attorney could have thought it was better not to impeach Zendejas and to focus instead on the degree of his uncertainty as he characterized it in his testimony. We are not persuaded. More fundamentally, the Attorney General does not address the basic failure by defense counsel to view the video in the first place. Defense counsel conceded he had not seen the video until habeas counsel located it in 2006. No attorney could have made a reasonable tactical decision whether to use the video without knowing what was in it. "In evaluating counsel's performance, we assess both the reasonableness of counsel's decisions and the reasonableness of the investigation that underlay each decision. '[B]efore counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation.' [Citation.]" (Thomas, supra, 37 Cal.4th at p. 1258, italics added.) Effective counsel requires that the attorney "make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation." (See In re Long (2020) 10 Cal.5th 764, 777 (Long) [without investigation, defense counsel was not in a position to make a reasonable decision as to which defense or defenses to focus on at trial].) In this instance, where the identity of the shooter was the central dispute at trial, the investigation and preparation were inadequate to support any reasonable tactical decision limiting the scope of the cross-examination in the way counsel did. We conclude counsel's conduct constituted deficient performance under the Strickland standard.
C. Gomez Suffered Prejudice
To merit relief, Gomez must also show he was prejudiced. Reviewing the record independently, "[w]e examine what 'evidence counsel failed to discover and present in this case' and whether there is 'a reasonable probability that a competent attorney . . . would have introduced it', and then we address whether 'there is a reasonable probability that [the jury] would have returned' a different verdict if it 'had . . . been confronted with [that] evidence' [citation]." (Long, supra, 10 Cal.5th at p. 778.) We assess prejudice given "the totality of the trial evidence." (Id. at p. 785.)
The Attorney General contends Gomez was not prejudiced by this error. The Attorney General does not argue that the overall strength of the evidence against Gomez would have resulted in a conviction regardless of defense counsel's deficient performance. Rather, the Attorney General points out that it was undisputed that Gomez was at the scene, and that Zendejas did not specifically identify Gomez as the shooter during the photo lineup. The Attorney General argues that there was no reasonable probability that anything in the video that was not already before the jury could have altered the probative value of the evidence that Gomez was at the scene.
We are not persuaded by this argument. In his trial testimony, Zendejas testified he was "80, 90 percent certain" that Gomez was the shooter. The statements Zendejas made during the photographic lineup would have caused a reasonable jury to sustain doubt about the strength of his in-court identification of Gomez. If counsel had cross-examined Zendejas with the statements he made in the video, the jury would have learned not only that Zendejas had never identified Gomez as the shooter at the lineup, but that he had identified the photo of another person as the shooter. Although Zendejas had tentatively identified a photo of Gomez as someone who "looks familiar," he unambiguously identified photo "1" in lineup "B" (not Gomez) as that of the shooter. When the detective then specifically pointed to the photo of Gomez and asked Zendejas about it, Zendejas rejected the photo of Gomez as depicting the shooter. Zendejas viewed the photo lineups and made his statements to the detective on the night of the shooting after being accompanied to the police station, directly after viewing the shooting. The trial took place five months later, in February 2021. It is reasonably likely that a competent defense attorney who had examined the video would have confronted Zendejas at trial with these contradictory statements and their timing, and that a jury would have determined there was further doubt regarding his identification of Gomez as the shooter.
We also note the trial court instructed the jury to consider "[t]he extent to which the witness is either certain or uncertain of the identification" in evaluating the believability of eyewitness testimony. Although the evidentiary value of a witness's confidence is questionable, juries are nonetheless influenced by it. Studies show "eyewitness confidence is the single most influential factor in juror determinations regarding the accuracy of an identification." (Lemcke, supra, 11 Cal.5th at p. 647.) This suggests that introduction of the video evidence together with cross-examination undercutting Zendejas's testimony that he was "80, 90 percent" confident of his in-court identification of Gomez as the shooter could have been particularly persuasive for the defense.
The California Supreme Court recently observed, "Contrary to widespread lay belief, there is now near unanimity in the empirical research that 'eyewitness confidence is generally an unreliable indicator of accuracy.' [Citation.]" (Lemcke, supra, 11 Cal.5th at p. 647 [directing trial courts to omit the certainty language from pattern jury instructions].) Gomez does not assert error in connection with this instruction.
The Attorney General argues that the video could not reasonably have caused a juror to suspect Carlos was the shooter. But Carlos's photo was not included in the lineups presented to Zendejas. Had they viewed the video, the jurors would have known Zendejas did not have the opportunity to identify Carlos as the shooter as part of the lineup procedure. And Gomez did not have the burden to prove Carlos was the shooter; the jury only had to find reasonable doubt that Gomez was the shooter.
Furthermore, as we concluded on direct appeal, the trial court erred by excluding testimony that implicated Carlos as the shooter. The defense proffered testimony from Ruben Gomez-an uncle to both Gomez and Carlos-who had stated that Carlos confessed to the shooting. At a hearing under Evidence Code section 402, Ruben testified that he spoke with Carlos after the shooting and that Carlos was sorry Carmen was involved. When Ruben asked Carlos why he shot Zarate, Carlos responded," '[W]ell, Peter was getting beat up so I had to' -- 'so I just brought out the gun and shot him. I had to do it.'" When Ruben asked Carlos when he would turn himself in, Carlos replied," 'I'm not, not until they catch me, because I'm a gangster.'" The defense argued this testimony was admissible as a statement against penal interest, but the trial court excluded it. We concluded the trial court erred by excluding the testimony but we found the error was harmless in part because several witnesses had identified the shooter as being Gomez or the man in the red shirt.
On habeas, Gomez claims the cumulative prejudice from this error together with the prejudice from defense counsel's failure to use the video merits relief. We agree. The erroneous exclusion of Ruben's testimony might have been harmless when considered in isolation, but when considered together with the harm from the failure to confront Zendejas with his contradictory statements at the lineup, the cumulative prejudice requires reversal. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) In this case, both errors cast doubt on the true identity of the shooter. The jury here did not come to its verdict without incident: after deliberating for a day and a half, the jury announced itself hung, and was ordered by the trial court to continue deliberations. We infer from the jury's actions the evidence not presented at trial would have had significance in this close case. If the jury had heard both pieces of the missing evidence on this point, there is a reasonable probability the jury would not have convicted Gomez of attempted first degree murder.
Although the Attorney General does not raise this argument, we note that the strength of the overall evidence against Gomez was not overwhelming. It is undisputed that he was at the scene of the shooting, but the evidence showing he was the shooter was hotly disputed. Much of the prosecution's case relied on the theory that the shooter wore a red or maroon shirt and that Gomez was the only person identified as wearing a red shirt. The defense presented evidence that Carlos also wore a red shirt. Aside from Zendejas, the prosecution presented two other eyewitnesses who identified Gomez in court as the shooter: Maria Zendejas and Edna Williams. Both witnesses gave inconsistent or contradictory testimony about key facts.
Maria Zendejas-Emilio Zendejas's wife-gave an account similar to her husband's account of the shooting. She was unable to identify Gomez in a photographic lineup on the night of the shooting. She identified Gomez in court as the shooter, but on the night of the shooting, she told police she did not remember the person well. She told police the shooter was "a little bit higher" than five feet tall, but when Gomez stood up in court, she estimated he was about five feet and six or seven inches. She agreed that Gomez as he stood in court was taller than the man she had seen firing the gun. She testified there was no doubt in her mind that the shooter wore a maroon or red top, but when the prosecutor showed her the shirt allegedly worn by the shooter, she could not confirm it was the shirt she had seen.
Edna Williams, an employee at the Applebee's, testified there was only one person who approached and shot the victim. She did not see them physically fighting or exchanging blows before the shooting. She described the shooter as wearing an orange or "orangish-red" shirt and a hat. In her testimony, she was equivocal about whether she could identify Gomez or his photo on the night of the shooting because it was dark and the shooter was about 25 to 30 feet away. She then identified Gomez in court as the shooter, but she added that she had first recognized him after seeing his photo on a television news report and then again when she saw him at the preliminary hearing. On cross-examination, Williams admitted police had shown her a photographic lineup on the night of the shooting and that she told police she did not think she could identify the shooter. Nonetheless, she testified that she had picked out a photo of "the person who resembled and looked like him"-a photo in the "middle on the bottom" of the lineup- which did not correspond to the position of Gomez's photo in the lineup exhibits. On redirect examination, the prosecutor then showed Williams the lineup exhibit, specifically directed Williams's attention to Gomez's photo in the middle of the top row, and asked Williams whether she had picked out that photo. Williams responded that she did.
The prosecution presented additional testimony that the shooter wore a reddish shirt, sweatshirt, or jacket. Two off-duty deputy sheriffs were sitting in an SUV in the parking lot of the Applebee's when the shooting occurred. Deputy Sheriff Brian Hoskins described the shooter as wearing a red shirt with black pants, with a shaved head, and a height of about five feet and six to eight inches. Hoskins testified that the other man who was with the shooter was significantly taller than the shooter-by about a head. On cross-examination, Hoskins testified that police showed him photo lineups after the shooting, and that he did pick out one of the photos. He conceded he had told the police he was "99 percent sure" the person in the photo was the shooter, but when defense counsel asked Hoskins which photo he had picked, Hoskins replied that he could not recall. Hoskins further conceded that he could not say whether Gomez was taller or shorter than the shooter. Hoskins agreed, however, that the shooter was about the same height as defense counsel, and that Gomez was almost a full head taller than defense counsel. When asked in court if he could identify Gomez as the shooter, Hoskins testified that he could not.
Witnesses used various similar terms to describe the color of the shooter's shirt-e.g., maroon, burgundy, orange, or "orangish-red."
The prosecutor did not adduce any testimony from Hoskins regarding his photo lineup identification. The detective who conducted the photo lineup, however, testified that Hoskins had picked a photo of another person who was not Gomez.
Off-duty Deputy Sheriff David Hyland was in the SUV with Hoskins at the time. He described the shooter as wearing a red or maroon top, with "a very short haircut if not bald," and approximately five feet and five to seven inches tall. He described the other man with the shooter as "closer to six feet tall," with a darker jacket, and the same hair style. Hyland testified that he was shown photo lineups after the shooting but that he could not pick out the shooter's photo. When asked to estimate Gomez's height standing in court, Hyland estimated he was about five feet and ten inches tall. Hyland conceded that he could not identify Gomez in court as the shooter.
Both off-duty officers testified that immediately after the shooting the shooter got into a red pickup truck driven by another person and fled the scene. The officers pursued the pickup truck in their SUV. When the pickup truck slowed down for a stop sign, the person in the red or burgundy shirt got out of the truck, ran around a bank, and escaped into some bushes. Police subsequently detained the driver of the truck and identified her as Carmen Gomez. The police also found a burgundy sweatshirt together with a black baseball cap by the side of the highway where the truck was driving. Hoskins testified the shirt was similar to the shirt the shooter was wearing.
In his writ petition, Gomez claims trial counsel rendered ineffective assistance by failing to have the hat and shirt tested for DNA evidence. Gomez submits a laboratory report on post-trial testing of DNA found on the baseball cap that excludes him as a contributor. The trial court denied his motion for DNA testing of Carlos to compare with this evidence. We do not reach this claim.
Todd Jones, a manager at the Applebee's, testified that he knew Zarate as a frequent guest at the restaurant. Jones saw Zarate walk out of the restaurant to the parking lot, and two men approached Zarate. One of the men was wearing "a red like sweatshirt/sweater" and the other man had "darker colored clothing." Zarate punched the man in red in the face, whereupon the man in red pulled out something from his back and fired around six to eight shots. Zarate then ran back into the restaurant. Jones testified that the shooter was about five feet and eight or nine inches tall. When asked if the shooter was the same height as Gomez standing in court, Jones responded he was not sure. When Jones was shown photos of Gomez, Carlos, and Carmen, Jones did not recognize any of them as being present on the evening of the shooting. Neither party asked Jones whether he recognized Gomez in court as the shooter.
Gomez testified in his defense. He conceded he was wearing a burgundy sweatshirt but he testified Carlos was wearing a burgundy shirt as well, in addition to a hat-the same shirt and hat found by the police by the side of the highway. Gomez testified that it was Carlos who had gotten in a fight with Zarate after they left the Applebee's. He stated Carlos shot Zarate multiple times, whereupon Zarate grabbed Gomez and tried to pull Gomez in front of him (Zarate) to block the shooting. Gomez left the scene in a car driven by another friend-Ramon Peguero. Gomez saw Carmen driving the red pickup truck at that point, but Gomez did not see whether Carlos got into it.
Other witnesses corroborated Gomez's testimony that Carlos was wearing a red shirt and black hat. Gomez lived with his mother Adeline Gomez, who did his laundry. Adeline testified that she saw Gomez leave the house earlier that evening together with Carlos and Carmen. Gomez was wearing a burgundy sweatshirt with a hood and a pouch, and when Adeline saw him later that evening after he come home, he was still wearing it. Adeline provided the sweatshirt to the defense. Adeline further testified that Carlos was wearing the maroon shirt and black baseball cap that police had located by the side of the highway after the shooting. She identified the same hat in a photo of Carlos wearing it.
Ramon Peguero was with Gomez, Carmen, and Carlos at the Applebee's on the night of the shooting. Peguero testified that Gomez got into his car after the shooting, and that Gomez was wearing the same sweatshirt that Adeline identified on Gomez-the sweatshirt Adeline had provided to the defense. Peguero could not say whether Carlos was wearing the same sweatshirt and hat that police found by the side of the highway. But Peguero testified that Carlos was wearing a hat, which he identified in a photo of Carlos wearing the hat. Another witness-Carlos's cousin Jaime Gomez-identified the hat Carlos wore as the same hat found by police on the side of the highway. Jaime could not say whether Carlos was wearing a red sweatshirt on the night of the shooting, but when he saw Carlos after the shooting, Carlos was not wearing any shirt at all.
Christopher Salazar, a server at the Applebee's, testified that he gave the police a description of the persons he has seen inside the restaurant before the shooting. He told police that two of the men were wearing burgundy shirts. One of the men with a burgundy shirt was wearing a black hat and was approximately five feet three inches tall. The other one was about five feet eight inches tall and had a thin mustache.
Based on the record as a whole, the evidence that Gomez was the shooter was not overwhelming. Besides Zendejas, the two witnesses who identified Gomez as the shooter-Zendejas's wife, and Edna Williams-gave accounts that could not be reconciled with other witnesses' versions of the shooting. Both Zendejas and his wife testified that the shooter got into a car after the shooting while the second man who was with the shooter got into a red pickup truck. This contradicted the account given by the two off-duty deputies, who testified that the shooter was the one who got into the red pickup truck after the shooting. Edna Williams testified that there was only one man who approached the victim before shooting him, and she did not see any fighting between them before the shooting. She told police on the night of the shooting that she did not think she could identify the shooter, and in her testimony she made contradictory statements about which of the suspects she had identified in the photo lineup.
The prosecution's case hinged largely on the theory that the shooter wore a shirt that was a color variously described as red, burgundy, maroon, orange or orangish-red. Gomez conceded in his testimony that he was wearing a red sweatshirt, but he testified that Carlos was also wearing a red sweatshirt, which Gomez identified as the same shirt that police found by the side of the highway. His mother corroborated this testimony, and Salazar-a server at Applebee's who testified for the prosecution-also told police that two of the men there were wearing red sweatshirts.
None of the witnesses to the shooting was sure that the shirt the police recovered was the one the shooter was wearing or that they saw Gomez wearing it. When shown the shirt police had found, Maria Zendejas testified she was "not very sure" whether she recognized it. Similarly, when Jones was shown the shirt police recovered, he responded, "I'm not sure if that's the shirt but I know it was a red shirt." When Christopher Salazar was asked to examine the shirt police had found and whether it was the same shirt he had seen on the person the person in the restaurant, he responded, "I don't know if it's the same person but there is a shirt and a hat there." When the prosecutor asked Salazar if the shirts looked similar, he responded that they did but added, "[W]ell, orange, burgundy, whatever," and, "[T]he shirt maybe."
Obed Albarran, a 15-year-old boy who was inside the restaurant, testified that he saw a man he identified as Gomez wearing a burgundy shirt in the restaurant. But when Albarran was shown the shirt that police recovered, he testified it was the same color but not the same type of shirt Gomez wore. Albarran testified that the man he identified as Gomez was wearing a silky dress shirt with a collar, whereas the shirt that police found was more like a cotton t-shirt. Albarran did not see the shooting.
The witnesses also gave contradictory testimony about whether the shooter or the man with him wore a black hat similar to the black baseball cap that police found together with the red shirt by the side of the highway. Emilio and Maria Zendejas testified that the shooter had a short haircut, which Maria described as a "flattop." A police officer who interviewed a young couple who had witnessed the shooting said the suspect who was wearing a burgundy shirt was also wearing a dark or black baseball cap. But the police officer did not know whether that couple was Emilio and Maria Zendejas because, although he took their names, he did not put their names in his report. Albarran testified that one of the men in the restaurant was wearing a black hat with an "old English N" but Albarran did not think it was the same hat as the one police found by the side of the highway. Salazar testified that one of the men in the restaurant wore a hat similar to the one found by the side of the highway. Edna Williams gave equivocal testimony about whether the shooter wore a hat, stating, "I believe he had a hat but at this point I couldn't remember, because I want to say he had a hat on and I don't know." She later added, "I mean, I do and then I don't but I'm not sure of it." Off-duty Deputy Sheriff Hoskins testified that he could not recall whether either of the two men wore a hat. Off-duty Deputy Sheriff Hyland testified that the shooter had a very short or bald haircut and that the man with the shooter had the same hairstyle. On cross-examination, however, Hyland testified that the man with the shooter wore a dark cap. Another Applebee's server (who did not see the shooting) testified that the man in the restaurant who wore a red shirt had shaved head and that the other man with him was wearing a black baseball hat.
Finally, witnesses gave contradictory testimony concerning the height of the shooter compared with that of the shooter's companion. The evidence was that Gomez was approximately five feet ten inches tall, and that Carlos was significantly shorter than him-by about a head, according to one of the off-duty sheriffs. Maria Zendejas told police the shooter was "a little bit higher" than five feet tall, and in court she agreed that Gomez was taller than the shooter. Emilio Zendejas estimated the shooter was around five feet and three or four inches tall.
In summary, the witnesses to the events of that evening gave a variety of accounts, all of which differed in significant aspects, and none of which established the identity of the shooter with overwhelming certainty. "A 'verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.'" (Long, supra, 10 Cal.5th at p. 785, quoting Strickland, supra, 466 U.S. at p. 696) The prosecution presented evidence that would be sufficient by itself to support a conviction, but the evidence also supported numerous contradictory inferences and conclusions. While the overall state of the record makes this a close question, we conclude counsel's deficient performance, when combined with the erroneous exclusion of Carlos's confession, is "sufficient to undermine confidence in the outcome." (Strickland, at p. 694.) Given the totality of the evidence, there is a" 'substantial, not just conceivable'" likelihood of a more favorable result in the absence of errors. (See Long, at p. 785.) We conclude the two errors identified above cumulatively prejudiced Gomez at trial.
For the reasons above, we conclude the claims merit relief and we will vacate the judgment of conviction.
Because we determine the claims above require us to vacate the conviction, we do not reach petitioner's remaining claims.
III. Disposition
The judgment of the Monterey County Superior Court in People v. Pedro Jesus Gomez (Super. Ct. Monterey County, No. SS002126) is vacated. The prosecution may elect within the time allowed by law to conduct a retrial. Unless there is a timely election to retry Gomez, he is ordered released.
WE CONCUR: Elia, J., Danner, J.