In re Gomez on Habeas Corpus CA2/5

I. INTRODUCTION

In 2008, a jury found petitioner Gilbert Gomez guilty of first degree murder (Pen. Code, § 187, subd. (a))1, and found a criminal street gang sentencing enhancement (§ 186.22, subd. (b)(1)(C)) to be true. The trial court sentenced petitioner to 25 years to life and a prior panel of this court affirmed the conviction (as well as the convictions of codefendants Benjamin Gonzalez, Spencer Bazan, and Gerson Bazan) with modifications not relevant to this proceeding. (People v. Gonzalez et al. (Feb. 10, 2010, B211559) [nonpub. opn.].) Petitioner now challenges his first degree murder conviction in light of the California Supreme Court’s decision in People v. Chiu (2014) 59 Cal.4th 155 (Chiu). We grant the petition.

II. FACTUAL BACKGROUND

The following factual background is taken from People v. Gonzalez et al., supra, B2115592:

All further statutory references are to the Penal Code unless otherwise stated.

On our own motion, we take judicial notice of that prior nonpublished opinion as well as the record in that appeal. We also take judicial notice of the subsequent opinions, People v. Gonzalez et al. (Nov. 30, 2020, B300650) [nonpub. opn.] and…