PEOPLE v. GOMEZ

Appellant’s Additional Authorities Letter

Cal.August 10, 2018

4521 CAMPUS0RIVE#175 IRVINE, CA 92612 LAURA 5. KELLY ATTORNEY AT LAW The Hon. Jorge Navarette, Clerk California Supreme Court 350 McAllister St. San Francisco, CA 94102-7421 Re: People v. Ruben Gomez (S087773) August 10, 2018 Dear Mr. Navarette: (949) 737-2042 LKELLY@LKELLYLAW.NET I am writing to provide additional citations relevant to Mr. Gomez's arguments in advance of oral argument, calendared for September 5, 2018. Argument I: People v. Banks (2015) 61 Cal.4th 788, 804-811 [where evidence showed defendant Matthews was the getaway driver, but there was no evidence he was at the scene, saw or heard the shooting, had any immediate role in instigating it, or could have prevented it, evidence was insufficient to render him eligible for the death penalty]. People v. Lara (2017) 9 Cal.App.5th 296, 316-321 [though defendants Flores and Espinoza were present at scene of crime, fled with a gang companion who participated in the crime, and lied to police, evidence was insufficient to support their convictions; though defendant Lara was present at the scene and participated in the argument preceding the shooting, there was nothing more than speculation suggesting that he was the shooter or that he aided and abetted the shooting with deliberation and premeditation]. 1 Argument IV: Burton v. Davis (9th Cir. 2016) 816 F.3d 1132, 1141-1146 [Faretta request made weeks before trial is timely under Faretta itself]. People v. Becerra (2016) 63 Cal.4th 511, 520 [Faretta error is reversible per se]. Argument VII: People v. Landry (2017) 2 Cal.5th 52, 81 & fn. 5 [defendant may argue on appeal that objected-to error had additional legal consequence of violating defendant's constitutional rights]. People v. Espinoza (2016) 1 Cal. 5th 61, 78-79 [noting, with approval, that trial court instructed jurors not to consider out-a/- custody defendant's absence for any purpose; citing Wheat v. United States (1988) 486 U.S. 153, 160]. People v. Banks (2014) 59 Cal.4th 1113, 1172-1176 [defendant's right to due process not violated where trial court's exchanges with defendant and defense counsel regarding defendant's repeated absences from court took place outside the presence of the jury; the court did not, in the jury's presence, blame defendant for the delay or indicate that it had an unfavorable view of defendant or his cooperation with prison authorities, citing People v. Sturm (2006) 37 Cal.4th 1218, 1237].1 1 Banks has been abrogated on other grounds by People v. Scott (2015) 59 Cal.4th 113. Banks was decided shortly before the filing of appellant's reply brief. Banks is cited in appellant's reply brief, though not with respect to Argument VII. 2 Argument IX: People v. Rangel (2016) 62 Cal.4th 1192, 1215-1216 [in a case tried before Crawford v. Washington (2004) 541 U.S. 36, defendant does not forfeit a Crawford challenge by failing to raise a confrontation clause objection at trial]. Argument XII: People v. Salazar (2016) 63 Cal.4th 214, 246-248 [in context, jurors would not have understood instructions to suggest that reasonable doubts had to be unanimous]. Argument XV: People v. Johnson (2015) 61 Cal.4th 734, 770-774 [reversing kidnap special circumstance where jury was instructed to consider the totality of the circumstances in determining whether movement of the victim was substantial]. Argument XVIII: People v. Romero & Self (2015) 62 Cal.4th 1, 35-37 [reversing robbery conviction where robbery accomplice's testimony was not corroborated by evidence which failed to connect the defendant to the crime independent of the accomplice testimony]. People v. Rodriguez & Barajas (2018) 4 Cal.5th 1123, 1128- 1130 [reversing Barajas's murder conviction where accomplice's testimony was not corroborated by independent evidence tying him to the crime]. People v. Simon (2016) 1 Cal.5th 98, 130 [instruction that each count charged a distinct crime adequately cautioned jurors against considering evidence of one incident when rendering a verdict on another incident, and vice versa]. 3 People v. Daveggio & Michaud (2018) 4 Cal.5th 790, 828- 830 [in Evidence Code section 1108 context, jury may not consider evidence of other charged crimes unless court admits them for that purpose under Evidence Code section 352]. People v. Bryant (2014) 60 Cal.4th 335, 453-455 [unadjudicated factor (b) offenses may be admitted absent corroboration, though jury must be instructed on the need to find corroboration before it can consider the evidence in aggravation]. 2 Argument XIX: Bryant, supra, 60 Cal.4th at 453-455 Llury must be instructed on the need to find corroboration before it can consider factor (b) evidence in aggravation]. Argument XX: People v. Grimes (2018) 1 Cal.5th 698, 720 [noting debate over the significance of Attorney General's failure to brief the question of prejudice]; see also People v. Sivongxxay (2017) 3 Cal.5th 151, 206-207 [Liu, J., concurring and dissenting] [although the Court is not limited to the parties' arguments in conducting harmless error review, "the fact that no party thought to advance [ a theory of harmlessness] suggests its novelty"]. Landry, supra, 2 Cal.5th at 81 & fn. 5 [defendant may argue on appeal that trial court's objected-to error had additional legal consequence of violating defendant's constitutional rights]. United States v. Runyon (4th Cir. 2013) 707 F.3d 475, 492- 498 [trial court erred in admitting, at penalty phase, videotape containing detective's references to defendant's ethnic background; error harmless beyond a reasonable doubt because 2 Bryant was decided before the filing of appellant's reply brief and came to counsel's attention during preparation for oral argument. I apologize for the late discovery of the case. 4 trial court gave detailed limiting instruction, court instructed jury not to consider race, color, or national origin, and instructed jurors that they could not impose a death sentence unless they would do so no matter what the race of the defendant and the victim was, and each juror signed a certificate stating that race and national origin were not involved in their decision and that they would reach the same verdict no matter the race of the defendant and victim]. 3 Argument XXII: Glossip v. Gross (2015) 135 S.Ct. 2726, 2756-2757 [Breyer, J., dissenting] [noting "convincing evidence" that innocent people have been executed in the past 30 years; since 2002, the number of exonerations in capital cases has risen to 115, citing National Registry of Exonerations, Exonerations in the United States, 1989-2012, pp. 6-7 (Exonerations 2012 Report)]; see also Jordan v. Mississippi (2018) 138 S.Ct. 2567, 2571 [Breyer, J., dissenting from denial of certiorari] [in the past three years, further evidence has accumulated suggesting that the death penalty as applied today lacks reliability; four hours before Willie Manning's scheduled execution, the Mississippi Supreme Court stayed his execution, and he later became the fourth person on Mississippi's death row to be exonerated; since January 2017, six death row inmates have been exonerated, four based on evidence of actual innocence, citing National Registry of Exonerations (June 25, 2018), https://www.law.umich.edu/special/exoneration/Pages/ detaillist.aspx]. 3 Runyon was decided before the filing of appellant's reply brief and came to counsel's attention during preparation for oral argument. I apologize for the late discovery of this case and respectfully request that the Court consider it in connection with Argument XX and appellant's second supplemental opening and reply briefs. 5 Argument XXIV: Hurst v. Florida (2016) 136 S.Ct. 616, 621-624 [Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death]; but see People v. Case (2018) 5 Cal.5th 1, 50. Sincerely, L~ 6 Declaration of Service Re: People v. Ruben Perez Gomez, S087773 On August 10, 2018, I served the within New authorities letter on each of the following, by placing true copies thereof in envelopes addressed respectively as follows, and depositing them in the United States mail at Irvine, California: Clerk Mr. Ruben Perez Gomez Los Angeles Co. Superior E99658 Court San Quentin State Prison Capital Appeals Unit San Quentin, CA 9497 4 210 W. Temple St. Room M-3 Los Angeles, CA 90012 Los Angeles District Attorney's Office 210 West Temple St. Los Angeles, CA 90012 Attn.: Anthony Manzella I have served the Attorney General and CAP-SF as reflected in the proof of service generated by TrueFiling. I declare under penalty of perjury that the foregoing is true and correct. Executed on August 10, 2018, 1 at Irvine, California ,A-=t:3- Laura.°'S. Kell 7 STATE OF CALIFORNIA Supreme Court of California PROOF OF SERVICE STATE OF CALIFORNIA Supreme Court of California Case Name: PEOPLE v. GOMEZ (RUBEN PEREZ) Case Number: S087773 Lower Court Case Number: 1. At the time of service I was at least 18 years of age and not a party to this legal action. 2. My email address used to e-serve: lkelly@lkellylaw.net 3. I served by email a copy of the following document(s) indicated below: Title(s) of papers e-served: Filing Type Document Title ADDITIONAL CITES FOR ORAL ARGUMENT New citations letter Service Recipients: Person Served Email Address Type Date / Time Attorney General - Los Angeles Office David Voet, Deputy Attorney General LAG david.voet@doj.ca.gov e- Service 8/10/2018 11:52:32 AM Attorney General - Los Angeles Office David Voet, Deputy Attorney General LAG david.voet@doj.ca.gov e- Service 8/10/2018 11:52:32 AM David Voet CA Attorney General's Office - Los Angeles 182544 david.voet@doj.ca.gov e- Service 8/10/2018 11:52:32 AM eService California Appellate Project California Appellate Project 000000 filing@capsf.org e- Service 8/10/2018 11:52:32 AM LAAWT Docketing CA Attorney General's Office - Los Angeles DocketingLAAWT@doj.ca.gov e- Service 8/10/2018 11:52:32 AM Laura Kelly Attorney at Law 234036 lkelly@lkellylaw.net e- Service 8/10/2018 11:52:32 AM Laura Kelly Attorney at Law 234036 lkelly@lkellylaw.net e- Service 8/10/2018 11:52:32 AM Laura Kelly Laura Kelly, Attorney at Law 234036 lkelly@lkellylaw.net e- Service 8/10/2018 11:52:32 AM This proof of service was automatically created, submitted and signed on my behalf through my agreements with TrueFiling and its contents are true to the best of my information, knowledge, and belief. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 8/10/2018 Date /s/Laura Kelly Signature Kelly, Laura (234036) Last Name, First Name (PNum) Laura Kelly, Attorney at Law Law Firm