Filed 2/25/21 P. v. Gomez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

ADRIAN GOMEZ,

 Defendant and Appellant.

 G059270

 (Super. Ct. No. 18WF0033)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Julian W. 

Bailey, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant 

and Appellant.

No appearance for Plaintiff and Respondent.

* * *
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1. Introduction

Adrian Gomez filed a notice of appeal from a judgment entered following a 

jury verdict convicting him of assault with a deadly weapon and finding true the 

allegation that he inflicted great bodily injury on the victim. His appointed counsel filed 

a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) setting forth the facts 

of the case and requesting that we review the entire record. Pursuant to Anders v. 

California (1967) 386 U.S. 738 (Anders), counsel identified one issue to assist us in 

conducting our independent review. Gomez was granted 30 days in which to file a 

supplemental brief on his own behalf. He has not filed a supplemental brief.

We have examined the record in accordance with our obligations under 

Wende and Anders and have found no arguable issues on appeal. The issue suggested by 

counsel does not have merit. We therefore affirm.

2. Jury Verdict and Sentencing

Gomez was charged by information with one count of attempted murder in 

violation of Penal Code sections 187, subdivision (a) and 664, subdivision (a) (count 1) 

and one count of assault with a deadly weapon in violation of Penal Code section 245, 

subdivision (a)(1) (count 2). The information alleged Gomez was on parole when he 

committed the offenses. (Id., § 1203.085, subd. (b).) The information alleged three 

enhancements: (1) as to both counts, infliction of great bodily injury on the victim (id., 

§ 12022.7, subd. (a)); (2) as to count 1, personal use of a deadly weapon during the 

commission of the offense (id., § 12022, subd. (b)(1)); and (3) as to count 1, commission 

of the offense willfully, deliberately, and with premeditation (id., § 664, subd. (a)). The 

information also alleged that Gomez previously had been convicted of a strike offense

(id., § 667, subds. (d), (e)(1)) and a serious felony (id., § 667, subd. (a)(1)), and had 

served a prior prison term (id., § 667.5, subd. (b)). 

The jury found Gomez not guilty of attempted murder and of the lesser 

included offense of attempted voluntary manslaughter. The jury found Gomez guilty of 
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assault with a deadly weapon and found true the allegation that he had inflicted great 

bodily injury on the victim. Gomez waived his right to a jury trial on the prior conviction 

allegations. The trial court found the prior strike, prior serious felony, and prior prison 

term allegations true and that Gomez was on parole when he committed the charged 

offenses.

After denying Gomez’s motion to dismiss the prior strike, the trial court 

sentenced Gomez to the upper term of four years (Pen. Code, § 245, subd. (a)(1)) which 

was doubled to eight years pursuant to Penal Code sections 667, subdivisions (d) and

(e)(1) and 1170.12, subdivisions (b) and (c)(1). The court imposed a consecutive 

three-year term for the great bodily injury enhancement and a consecutive five-year term 

for the prior serious felony. The total term was 16 years in prison. The court dismissed 

the true finding to the prior prison term enhancement. Gomez was awarded 937 days of 

actual custody credits and 140 days of conduct credits, for a total of 1,077 days of credit. 

The court imposed the following fines and fees: (1) a $300 parole revocation restitution 

fine (id., § 1202.45) (suspended); (2) a $300 restitution fine (id., § 1202.4, subds. (a), (b) 

& (d)); (3) a $40 court operations assessment (id., § 2465.8); and (4) a $30 criminal 

conviction assessment (Gov. Code, § 70373).

3. Facts

Gomez lived with his mother in a single family home in Garden Grove. 

Armando Salmeron and his wife and three children moved into the house in late 2017 

because they had been evicted from their home and had no other place to live. Gomez’s 

mother was the cousin of Salmeron’s wife. Salmeron had known Gomez since they were 

children. 

On the morning of January 2, 2018, Salmeron was outside and separating 

aluminum cans from plastic materials. Gomez exited the house through the kitchen door, 

walked over to Salmeron, who was bent down, and started stabbing him in the head with 

a pocket knife. Salmeron screamed, asked what he had ever done to Gomez and then, 
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after turning to face Gomez, asked what was going on and whether Gomez intended to 

kill him. Gomez said nothing and continued to stab Salmeron with the knife. 

Salmeron noticed blood streaming from the right side of his head near his

temple. He wrested the knife from Gomez’s hand by biting Gomez on the forearm about 

three times. Gomez threw Salmeron to the ground and struck him with a closed fist. 

Salmeron, with the knife in his hand, managed to get up and run to the street, where he 

encountered a young man and young woman. Salmeron asked them to call the police and 

told them, “[t]his guy wants to kill me.” 

The young man, Max Ruiz, and the young woman, his sister Sylvia 

Mendoza, had been driving to Enterprise Rent-A-Car. Mendoza parked the car, and 

when Ruiz exited it, he heard someone screaming in English and Spanish for help. Ruiz 

turned and observed Salmeron, with blood dripping from his head, standing in the street 

and screaming for help. When Ruiz asked Salmeron what had happened, he replied, in 

Spanish, “[h]e’s stabbing me.” Salmeron momentarily sat on the curb, then got up and 

walked to a child’s table at a nearby house. 

Ruiz saw Gomez run toward the house to which Salmeron had fled. Ruiz 

looked at Gomez and asked, “[h]ey, what’s going on?” and “[w]hat are you doing?” Ruiz 

told Gomez the police were on their way. Gomez left, walked up a driveway, temporarily 

disappeared from sight, reemerged, and took off running up the street. 

Maria Delgado, who had known Gomez and his mother for 20 years, lived 

at a house across the street from Gomez’s house. Delgado heard people talking and 

banging loudly on the door. She stepped outside into a little patio and saw Salmeron, 

seated at a small children’s table, with a lot of blood on him. He set a knife on the table 

and asked Delgado to get his children. 

Garden Grove Police Officer Jeremy Morse arrived at the scene, where he

found Salmeron seated at a table and bleeding profusely. A black folding knife was next 

to him. Police detective Richard Desbiens also arrived at the crime scene. Video 
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surveillance footage from a medical supply store showed Gomez walking northbound on 

Brookhurst Street, then proceeding west across the northbound lane to the center median, 

and then continuing north. 

Bharath Chakravarthy, an emergency department physician, treated 

Salmeron for his injuries. Salmeron had eight stab wounds or lacerations, including one 

just below the clavicle, one in the back of the head, and two to the right scalp. 

4. Issue Suggested by Counsel

Gomez’s counsel has brought the following issue to our attention: “Was 

the jury instruction for assault with a deadly weapon prejudicially erroneous because a 

pocket knife is not a deadly weapon as a matter of law?” The issue has no merit. An 

instrumentality that is not inherently dangerous, such a pocket knife, may be considered a 

dangerous or deadly weapon if it is capable of being used in a dangerous or deadly 

manner and the evidence shows its possessor intended to use it as such. (People v. 

Burton (2006) 143 Cal.App.4th 447, 457.) The jury was instructed consistently with this 

principle. 

5. Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

MOORE, ACTING P. J.

IKOLA, J.