Filed 11/23/20 P. v. Gomez CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MAXSIMILIANO GOMEZ,

Defendant and Appellant.

 B300407

 (Los Angeles County

Super. Ct. No. BA450819)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, James R. Dabney, Judge. Affirmed in part, 

reversed in part, and remanded with instructions.

John F. Schuck, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Marc A. Kohm and David A. Voet, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Maxsimiliano Gomez was 

convicted, by jury, of shooting a firearm in a grossly negligent 

manner, in violation of Penal Code section 246.3, subdivision (a), 

and by no contest plea of possession of a firearm with a prior 

violent conviction.1 Defendant’s sentence was enhanced by five 

years for a prior serious felony conviction. (§ 667, subd. (a).) On 

appeal, defendant contends: (1) there was insufficient evidence 

he was the shooter; (2) the prior serious felony enhancement 

must be reversed because, even with a jury waiver, no court trial 

was ever held; and (3) the prior serious felony enhancement does 

not apply because his current felony conviction was not proven to 

be serious. We remand for a trial on the prior serious felony 

enhancement and otherwise affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Shootings

Defendant was prosecuted for two shootings outside a 

party. The facts, as revealed at trial, were relatively simple.

On the evening of July 16, 2016, people gathered outside a 

house for a teen’s birthday party. There was a quarrel that 

involved defendant, and the man acting as security for the party 

forced defendant to leave. As he was being kicked out of the 

party, defendant said he would come back. Defendant left in a 

white Chevrolet truck. Surveillance video confirms this; 

defendant arrived at the party at 11:37 p.m. and returned to his 

truck at 11:52.2

1 All undesignated statutory references are to the Penal 

Code.

2 Neither party requested the exhibits be transmitted to this 

court for our review. We therefore refer to the detective’s 

narration of the events while playing the video clips at trial. 
3

Defendant drove off, but returned in a few minutes. When 

he came back, he exited his truck, racked his gun, and fired 

multiple times in the air. Defendant subsequently admitted to 

police that he fired one shot in the air outside the party. No 

charges related to this first shooting are at issue in this appeal. 

The relevant shooting is the second one. After shooting in 

the air, defendant got back into the truck. Another man entered 

the passenger side of the vehicle, and defendant drove off. 

Within minutes, defendant’s truck returned. While driving past 

the partygoers on the sidewalk, defendant shot twice out of the 

driver’s side window of the truck. Although no witness 

specifically identified the shooter, the surveillance video 

indicated only a short time had elapsed between when defendant 

drove off after the first shooting and when the muzzle flashes 

came from the driver’s side window of the same vehicle in the 

second shooting. 

2. The Charges

Defendant was charged by amended information with: 

Count 2 – attempted premeditated murder of a John Doe for 

firing into a crowd (§§ 664/187); Count 4 – shooting from a motor 

vehicle (§ 26100, subd. (c)); Count 5 – possession of a firearm 

with a prior violent conviction (§ 29900, subd. (a)(1)); and 

Count 6 – assault with a firearm (§ 245, subd. (a)(2)). Defendant 

had suffered a prior conviction for second degree robbery. 

(§ 212.5, subd. (c).) In the information, the robbery prior was 

alleged three times: (1) the prior violent offense for the 

possession of a firearm charge; (2) a prior strike within the 

meaning of the three strikes law (§ 667, subds. (b)-(i)) with 

respect to all counts; and (3) a prior serious felony within the 

meaning of section 667, subdivision (a) (“667(a)”), with respect to 

all but the possession of a weapon offense. Various firearm 

enhancements were also alleged. 
4

3. Defendant’s Partial Plea

Defendant pleaded no contest to count 5, possession of a 

firearm with a prior violent conviction. He specifically admitted 

the allegation that his prior conviction was for second degree 

robbery. In the course of the plea, the court advised defendant 

that he was, in effect, admitting a strike prior; defendant stated 

he understood. No mention was made, at this point, that the 

prior would also constitute a serious felony under section 667(a).

4. Partial Acquittal and Jury Instructions

The case proceeded to a jury trial on the remaining counts. 

At the close of evidence, the court granted defendant’s motion for 

acquittal on the attempted murder count (count 2).

As to the count of shooting from a motor vehicle, the court 

instructed on the lesser included offense of shooting a firearm in 

a grossly negligent manner.3 The court was very clear that this 

crime could only be considered as lesser to the offense of shooting 

from a vehicle, and related only to the second shooting, not the 

first. The jury submitted a question: “Does the lesser offense of 

shooting a firearm in a grossly negligent manner require the 

defendant to shoot from a vehicle?” The court responded, “No. 

But this relates only to count four [which charged shooting from a 

vehicle] which involves the shots where the muzzle flashes are 

observed.” 

The jury was also instructed on personal use of a firearm. 

As relevant to this appeal, the jury was specifically asked to 

determine whether defendant had personally used a firearm in 

connection with the lesser offense of shooting a firearm in a 

grossly negligent manner. 

3 At trial, defendant objected to the instruction, questioning 

whether the offense was truly lesser included. He does not 

pursue this argument on appeal.
5

5. Verdicts

The jury found defendant not guilty of shooting from a 

vehicle (count 4), but guilty of the lesser included offense of 

willfully discharging a firearm in a grossly negligent manner. 

The jury found true the allegation that this was a serious felony 

because defendant personally used a firearm. Defendant was 

found not guilty of assault with a firearm (count 6). Between his 

partial plea and the jury verdict, defendant was convicted of 

possession of a firearm with a prior violent conviction and 

willfully discharging a firearm in a grossly negligent manner as a 

serious felony. 

6. Defendant Waives Jury on Priors

After the verdicts, the court, outside the presence of the 

jury, asked if defendant wanted to waive jury or admit the priors. 

Defense counsel stated twice that defendant wanted to waive. 

The court stated, “Mr. Gomez, you have the right to have a jury 

determine the truth of the priors alleged in this case. Do you 

waive that right with the understanding that the Court alone will 

make that determination? I still have to be convinced based upon 

whatever documentary evidence is presented as to whether the 

priors are true or not.” Defendant waived, and the prosecutor 

joined. The jurors returned to the courtroom and were excused. 

The court then indicated it would set a date “for any 

post[]trial motions, probation and sentencing.” The following 

colloquy occurred: 

“[The Prosecutor]: Your Honor, we’re not going to have a 

prior[s] trial[]; correct? 

“[Defense Counsel]: I’m going to stipulate. 

“[The Prosecutor]: He already admitted when he was 

pleading.

“[The Court]: He already admitted, correct. I don’t know if 

you want to do that now or do you want to wait.” 
6

Defense counsel wanted to speak to the departing jurors, so 

no further proceedings were held at that point. 

7. Sentencing Hearing

At the next hearing, the court asked, “What’s happening?” 

The prosecutor responded, “Your Honor, today is sentencing. He 

previously admitted to two strike priors – a strike prior. And he 

pled to possession of a gun charge. And he was convicted of 

negligent discharge with a personal allegation as true.” The 

court asked defense counsel if he was ready to proceed. Counsel 

responded by asking the court to exercise its discretion to stay 

the prior serious felony enhancement. Neither the court nor 

either party noticed that the court trial on this prior serious 

felony enhancement had not been held. Nor did defendant 

stipulate to the prior. 

Defendant was sentenced to 11 years in prison, calculated 

as the upper term of 3 years for willful discharge of a firearm in a 

grossly negligent manner, doubled for the strike, plus 5 years for 

the prior serious felony enhancement. A 6-year term for

possession of a firearm with a prior violent offense (3 years, 

doubled for the strike) was stayed under section 654. 

Defendant filed a timely notice of appeal. 

DISCUSSION

On appeal, defendant makes three arguments: (1) there is 

insufficient evidence that he was the shooter in the second

shooting; (2) the court trial on his prior serious felony was never 

held and he did not otherwise admit the prior; and (3) his current 

conviction was not proven to be a serious felony, so the five-year 

prior must be stricken.

1. Sufficient Evidence Supports the Jury’s Verdict that

Defendant was the Shooter

Defendant argues there is insufficient evidence that he was 

the shooter in the second shooting; he suggests the possibility
7

that he switched places with his passenger when the vehicle was 

out of view of the security cameras, so the other man was the 

actual shooter.

4 He relies on evidence that a passenger was seen

getting into the truck following the first shooting.

5

“ ‘In reviewing a claim for sufficiency of the evidence, we 

must determine whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime or special 

circumstance beyond a reasonable doubt. We review the entire 

record in the light most favorable to the judgment below to 

determine whether it discloses sufficient evidence—that is, 

evidence that is reasonable, credible, and of solid value—

supporting the decision, and not whether the evidence proves 

guilt beyond a reasonable doubt. [Citation.] We neither reweigh 

the evidence nor reevaluate the credibility of witnesses.

[Citation.] We presume in support of the judgment the existence 

of every fact the jury reasonably could deduce from the evidence. 

[Citation.] If the circumstances reasonably justify the findings 

made by the trier of fact, reversal of the judgment is not 

warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding.’ [Citation.] 

‘Apropos the question of identity, to entitle a reviewing court to 

set aside a jury’s finding of guilt the evidence of identity must be 

so weak as to constitute practically no evidence at all.’ 

4 The jury was not instructed on aiding and abetting.

5 Defendant also argues that police recovered two bullet 

casings of different calibers which could not have been fired from 

the same gun. Testimony on whether a second person fired shots 

from or near the truck was inconsistent. One of the partygoers 

told police that, in the chaos when defendant was shooting, “I 

guess some people were shooting back.” 
8

[Citations.]” (People v. Mohamed (2011) 201 Cal.App.4th 515, 

521.) 

This much is undisputed: the truck belonged to defendant’s 

girlfriend; she let him drive it. Defendant came to the party and 

was thrown out less than 20 minutes after he arrived. He 

threatened to return. Minutes later he stood outside the party 

with a gun and fired in the air. He got back into the driver’s side 

of the truck and drove off. Very shortly thereafter, the same 

vehicle returned to the same party and the driver fired shots at 

the partygoers before speeding off. The jury reasonably found 

from these facts that defendant was the shooter. 

We also observe that a careful examination of the evidence 

shows that defendant’s alternative scenario, of defendant and his 

passenger switching positions, is improbable at best, and 

certainly one the jury could have reasonably rejected. When 

defendant stood by his truck and shot at the party, the truck was 

facing east. The video confirms that another male was standing 

near the driver’s side and circled around to enter the vehicle on

the passenger side. The first surveillance video indicates the

truck drove off at 11:57 and 10 seconds. The truck is then seen 

coming back on video, this time facing west, at 11:57 and 45 

seconds. The second video confirms that shots were fired from 

the driver’s side on this pass by the house. In short, the truck 

was out of frame for 35 seconds. During that time, the vehicle 

had to turn around. Defendant’s briefs on appeal posit that he 

stopped the vehicle and the two men switched places, in addition 

to turning the vehicle, all during that half a minute. There was 

no evidence to support this theory, and no jury could reasonably 

infer those facts.

6 

6 Defendant superficially suggests that “[f]or all the evidence 

shows, it was the passenger that shot out of the window and 
9

2. The Prior Serious Felony Enhancement

Section 667(a)(1) provides, in pertinent part: “Any person 

convicted of a serious felony who previously has been convicted of 

a serious felony in this state . . . shall receive, in addition to the 

sentence imposed by the court for the present offense, a five-year 

enhancement for each such prior conviction on charges brought 

and tried separately.” Defendant challenges both parts of this 

statute – that is, he questions the proof that he was previously 

convicted of a serious felony and that his current conviction was 

for a serious felony. 

A. The Prior Conviction was Not Proven to be a 

Serious Felony For Count 5

At trial, the parties agreed that there would be a court trial 

on defendant’s prior felony convictions, and defense counsel 

indicated that he was prepared to stipulate to the truth of the 

allegation. However, as the Attorney General concedes, “the 

court and parties moved to sentencing without having a 

proceeding where counsel stipulated during a court trial on the 

prior conviction allegations.” The Attorney General nonetheless 

argues that remand for a court trial is “unwarranted” as the 

court would have “inevitably” found the prior conviction true. 

The Attorney General cites no law for the proposition that the 

failure to hold a trial can be considered harmless under any 

circumstance, and independent research discloses none.

7 

whose gun made the muzzle shots seen on the video.” This, too, 

is speculative.

7 The prosecution cites only People v. Saunders (1993) 

5 Cal.4th 580, 589–590, which held that a defendant can forfeit 

the statutory right to have the same jury that resolved guilt try 

the issue of prior conviction allegations, by failing to object to the 

discharge of the jury before a bifurcated trial was held. We fail to 

see the relevance. The defendant in Saunders ultimately had a 
10

The Attorney General points out that, in the course of his 

plea to possession of a firearm with a prior violent conviction, 

defendant admitted the robbery prior. Since robbery is a serious 

felony (§ 1192.7, subd. (c)(19)), the prosecution suggests the truth 

of the prior has been effectively admitted. But our Supreme 

Court has explained that when a defendant is admitting the 

truth of a prior conviction allegation that subjects him to 

increased punishment, the defendant must be “advised of ‘the full 

penal effect of a finding of the truth of an allegation of prior 

convictions.’ [Citation.] We held ‘as a judicially declared rule of 

criminal procedure’ that an accused, before admitting a prior 

conviction allegation, must be advised of the precise increase in 

the prison term that might be imposed, the effect on parole 

eligibility, and the possibility of being adjudged a habitual 

criminal. [Citation.]” (People v. Cross (2015) 61 Cal.4th 164, 

170–171.) Here, when defendant pled no contest to possession of 

a firearm with a prior violent conviction, he was advised that 

admitting the prior violent conviction constituted the admission 

of a strike, and he admitted the prior with that understanding. 

But he was not advised that admitting the prior in that context

also meant that he was admitting it for the purposes of section 

667(a), and that he would therefore be eligible for an additional 

five years in prison if he was eventually convicted of a serious 

felony at trial. In the absence of such advisement, we cannot find 

that defendant knowingly admitted the prior serious felony. 

jury trial on the priors; the court simply rejected his argument 

that he could complain about the violation of his statutory right 

to have the priors tried before the same jury that convicted him of 

the current offense in the absence of a timely objection to the 

discharge of that jury.
11

We remand to allow the prosecution to decide if it elects to 

re-try the prior serious felony allegation.8 (See People v. 

Barragan (2004) 32 Cal.4th 236, 241, 244–245 [retrial of a 

enhancement allegation is permissible and does not violate state 

or federal due process or double jeopardy].)

B. The Lesser Included Offense was Proven a 

Serious Felony

Defendant was found not guilty of shooting from a vehicle 

in count 5 but was convicted of the lesser included willful 

discharge of a firearm in a grossly negligent manner. This lesser

offense is not necessarily a serious felony for purposes of the 

section 667(a) enhancement, but it can be if the defendant 

personally used a firearm. (§ 1192.7, subd. (c)(8); People v. 

Bautista (2005) 125 Cal.App.4th 646, 654–655.) Here, the jury 

specifically found true “that the offense is a serious felony in that 

the defendant personally used a firearm during the commission 

of the offense within the meaning of [P]enal [C]ode section 

1192.7[, subdivision.] (c)(8).” It was therefore proven to be a 

serious felony. 

Defendant, apparently overlooking this jury finding, argued 

in his supplemental opening brief on appeal that the jury made 

no finding that he personally used a firearm. In the course of 

that argument, he stated, “Here the issue of personal use was 

never charged as to counts 4 and 5 nor was the issue ever 

submitted to the jury.” The latter point is plainly wrong. As for 

the passing reference to the personal use allegation not having 

8 The prosecution argues that if we do not find the error 

harmless, we should reverse for the agreed-upon court trial. 

Although defendant offers an additional reason for the 

inapplicability of the prior serious felony enhancement, to which 

we next turn, he does not respond to the Attorney General’s 

argument that further proceedings are the appropriate remedy.
12

been alleged, defendant cites neither to the record nor to any 

legal authority on the point. For example, he does not address 

the rule that allows informal amendments if there is no prejudice 

to the defendant. (See People v. Anderson (2020) 9 Cal.5th 946, 

958; People v. Toro (1989) 47 Cal.3d 966, 976, disapproved on 

another point by People v. Guiuan (1998) 18 Cal.4th 558, 568, 

fn. 3.)

9 

We may treat as waived any contention not supported by 

legal argument and citation of authority. (People v. Jacobs (2013) 

220 Cal.App.4th 67, 77.) To the extent defendant can be said to 

have raised the point in his reply brief, a point raised for the first 

time in reply is deemed waived in the absence of good cause.

(People v. Clayburg (2013) 211 Cal.App.4th 86, 93.) There is no 

good cause here. 

DISPOSITION

The five-year prior serious felony sentence enhancement is 

reversed and the matter remanded for the District Attorney to 

decide whether to proceed with a bench trial on the prior serious 

felony. In all other respects, the judgment is affirmed. 

RUBIN, P. J.

WE CONCUR:

MOOR, J. KIM, J.

9 Here an informal amendment alleging the lesser as a 

serious felony due to personal use of a firearm (§ 1192.7, subd. 

(c)(8)) would not have enhanced the risk of a greater sentence to 

defendant. The charged offense was already alleged to be a 

serious felony, albeit under a different subdivision (§ 1192.7, 

subd. (c)(36)).