Filed 3/8/16 P. v. Gomez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F070460
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF150876A)
                   v.

WENDY GUADALUPE GOMEZ,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.

         Sylvia Whatley Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-
         Wendy Guadalupe Gomez was convicted of second degree murder and child abuse
in the death of her two-year-old cousin Karla Isidro, who had been left in her care.1


         *Before Gomes,        Acting P.J., Franson, J. and Peña, J.
Appellate counsel filed a brief asserting she could not identify any arguable issues in the
case. (People v. Wende (1979) 25 Cal.3d 436.) After a thorough review of the record we
agree and affirm the judgment.
                       FACTUAL AND PROCEDURAL SUMMARY
The Information
       The information charged Gomez with second degree murder (Pen. Code, § 187,
subd. (a)),2 and willfully causing great bodily injury to a child in her custody (§ 273a,
subd. (a)). The second count alleged as an enhancement that Gomez personally inflicted
great bodily injury to a person under the age of five. (§ 12022.7, subd. (d).)
Prosecution Evidence—Testimony
       On September 20, 2013, about 4:00 p.m. Gomez was driving in the Bakersfield
area when she noticed that Karla, who was riding in the back seat, appeared
nonresponsive. Gomez stopped the car and determined Karla had died. Gomez drove
around the area for approximately seven hours with the dead child in the back seat before
she called the emergency operator.
       Forensic pathologist Yulai Wang performed the autopsy on Karla. The external
examination began by noting she had severe malnutrition, which may have been related
to the injury she suffered. He also noted scrapes on the front part of Karla’s shoulder.
The most significant injury was severe trauma to the back of her head. The fracture of
the skull resulted in displacement of a piece of bone, which felt like a hard bump on the
back of the head. A contusion to the back of the head indicated Karla suffered a blunt


       1In the record the victim’s first name is spelled both Carla and Karla, and her last name is
spelled Ysidro and Isidro. We will spell the victim’s name Karla Isidro to conform with the
information.
        Gomez’s relationship to Karla is also unclear. Gomez often referred to Karla’s mother as
her sister, however it appears Karla’s mother was Gomez’s aunt, making Karla a cousin of
Gomez. The exact relationship between Gomez and the victim is not significant to resolution of
the appeal.
       2All   statutory references are to the Penal Code unless otherwise indicated.

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force trauma, meaning the head was struck by a hard object or the head impacted a hard
object. There were also multiple bruises on the forehead area indicating blunt force
trauma to the forehead. Finally, he noticed bruising on the forearms and the legs
consistent with ligature binding.
       The internal examination of the scalp showed a fairly large displaced fracture on
the back of the skull that extended from the base of the skull to the top of the skull and
over to the front of the skull. He described the fracture as a severe complex fracture,
which meant the fracture broke into many pieces. The cause of the fracture was a severe
trauma. The injuries were probably caused by more than one event and were not
accidental. Dr. Wang opined it is unlikely Karla suffered these injuries as a result of a
fall. He also noted a subdural hematoma that was both acute and chronic, and a brain
injury. The injury to the brain was caused by the blunt force injury to the head. These
findings indicate at least some of the injuries occurred more than three weeks ago, and
some were more recent. These injuries would be consistent with symptoms such as
trouble speaking, loss of balance, vomiting, seizures, and weight loss. The cause of death
was blunt force trauma to the head resulting in a homicide.
       The issue at trial was who caused the injuries to Karla and, to a lesser extent, how
the injuries occurred. Gomez was caring for Karla and her sister A. because the
children’s mother went to Mexico. The mother was expected to return to California
within a week or so. However, Gomez had been caring for the children for
approximately two months at the time of Karla’s death.
       Maria Pantoja was the mother of Jaime Pantoja Calderon.3 Jaime was a friend of
Gomez. Beginning in August 2013, Maria spent some time with Gomez as a result of
Jaime’s friendship with her. Gomez lived with the Pantojas for a short period of time
because work was being done on her apartment. Maria met the children when Gomez


       3We will   refer to the Pantojas by their first names to ease the reader’s task. No disrespect
is intended.

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brought them to her house. Karla did not look healthy, and something appeared to be
wrong with her head. Karla also appeared to have problems with her balance. Maria
noticed in the morning of September 20, Karla could not hold up her head. Maria told
Gomez to take Karla to the doctor, but Gomez said she could not until she received a
letter from Karla’s mother giving Gomez permission to do so. On cross-examination
Maria testified she never saw Gomez abuse Karla.
       Jaime testified he initially was just friends with Gomez, but for a time they had a
romantic relationship. The first issue Jaime noticed regarding Karla was that she
appeared sad. About a month later, Karla began vomiting after she ate. This vomiting
continued intermittently until Karla died. In the beginning of August, Jaime noticed
bumps on Karla’s head. One of the bumps began to grow over time, and other bumps
appeared. On September 19, Karla had a seizure and started grinding her teeth. Jaime
and Gomez were both worried about Karla. Gomez stated she could not wait any longer
for a letter from the children’s mother and she would take Karla to the doctor on the 20th.
Karla and Gomez lived in Jaime’s house for the last 12 days of Karla’s life.
       Jaime never was concerned that Gomez was too rough with Karla, although he had
told police officers Gomez became frustrated when Karla misbehaved and she was then
hard on Karla. Jaime also saw Gomez tie Karla up on August 31. That was the only time
that occurred, and Karla was tied up 20 to 30 minutes. He testified he never saw Gomez
shake Karla.
       Xochitl Garcia is Gomez’s aunt. She spoke with Gomez many times while Gomez
had the children. Gomez would tell Garcia the children were fine, but Karla did not eat
well. On cross-examination Garcia testified she had not seen Gomez abuse Karla, nor did
she see signs of abuse on the children.
Prosecution Evidence—Recorded Statements
       The prosecution introduced three recordings. The first was the call made by
Gomez to the emergency operator. The second was the initial interview of Gomez by


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police officers when they arrived at the scene after Gomez called the emergency operator.
The third was the investigating detective’s interview of Gomez the following day.
       Call to the Emergency Operator
       In the call to the emergency operator, Gomez stated Karla was dead. Gomes
stated Karla had been sick, but she did not know why she died. She admitted she had
custody of the children for approximately two months when their mother left for Mexico.
On the day of Karla’s death, Gomez stated she was driving around talking to the children
when she noticed Karla was no longer responding. The police arrived at that time and the
call ended.
       First Police Interview
       The second interview occurred at the scene shortly after the police arrived. In this
interview Gomez admitted she was staying with a friend (Jaime) for a few weeks because
there was a problem in her apartment. In a rambling interview Gomez said Karla was
showing signs of being sick (vomiting, general weakness and poor balance), so she tried
to contact Karla’s mother. Gomez said the mother was going to send her a letter so she
could obtain medical care for the girls. Gomez finally spoke with the mother and again
asked for a letter. The mother said she needed money, so Gomez sent her money but still
had not received the letter. Gomez claimed she called a lawyer to try and rectify the
problem. The lawyer apparently told her to take Karla to the doctor.
       When asked about Karla, Gomez said she had been vomiting intermittently for
about a month. Gomez eventually concluded Karla had worms in her stomach. For a
while Karla appeared to be feeling better, and she ate some food. Gomez bought some
medicine for the worms. Around 4:00 p.m. that afternoon Gomez noted Karla was not
responding. Gomez checked Karla and determined she had died. Gomez called her
mother. Gomez said she did not call an ambulance because she was afraid she would go
to jail, or would lose the girls. Gomez’s mother and Jaime told Gomez to call an
ambulance. Gomez claimed she did not because she was thinking about herself. Gomez


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eventually called her uncles in Los Angeles who drove to Bakersfield. She called the
emergency operator when her uncles arrived.
       Second Police Interview
       Finally, Gomez’s interview with the investigating detective (Detective Josh
Finney) was played for the jury. As relevant to Karla’s death, Gomez stated at times she
thought Karla was faking being sick to get attention, but at other times she was actually
sick. She stated she had not taken Karla to see a doctor because she was trying to contact
the children’s mother. She spoke with the mother on one occasion and told her Karla was
sick and the mother needed to send a letter giving Gomez authority to take the children to
the doctor. The mother asked for money ($100) and said she would send the letter.
Gomez never received the letter.
       Gomez said she thought she might have been negligent in her care for the children
because she failed to obtain medical care for Karla. The symptoms displayed by Karla as
described by Gomez included difficulty with her balance, vomiting, disobeying Gomez,
throwing herself on the ground when around others, resulting in hitting her forehead, a
seizure, and a soft spot on her head.
       When asked if there was anything she felt she had done wrong other than failing to
obtain medical care for Karla, Gomez admitted she had hit Karla and tied her hands twice
because Karla would pull her hair repeatedly. She also admitted that on one occasion
while riding in the car she had tied Karla’s hands and feet for four hours because Karla
was kicking. Gomez used clothing when she tied up Karla. Gomez admitted getting
angry with the children because Karla always seemed to be sick when she was around
other people, and Gomez thought she was trying to get attention. Gomez also said she
would get very upset and frustrated with Karla when her personality changed, which
might have occurred because she was sick. She admitted she sometimes lost control of
her temper.




                                            6.
       Gomez admitted she knew the right thing to do was call for an ambulance when
she discovered Karla was not breathing, but “I just couldn’t do it.” Later she admitted
she did not call for help because she thought she would be arrested. She also stated she
had a feeling Karla would die.
       When asked about any event that might have contributed to Karla’s death, Gomez
stated Karla fell many times hitting her forehead and fell one time apparently attempting
to exit the bathtub. Gomez also admitted she threw Karla into the back seat of the car on
one occasion, and shook Karla hard on two occasions. Gomez initially did not think
anything she did contributed to Karla’s death, but then suggested that perhaps when she
shook Karla she contributed to her death. Gomez felt that Karla may have injured herself
when she fell out of the bathtub onto her head, which happened about a month before her
death. Karla’s head was soft and swollen after that, and it appeared a piece of her skull
was displaced.
Defense Evidence
       Rhonda Gomez lived in the apartment adjacent to Gomez’s apartment during the
relevant time period. She saw Gomez in passing and at times with the children. The
children appeared to be happy and well cared for, and Gomez appeared to be kind and
patient with the children.
       Gomez testified in her defense. As relevant here, she testified she obtained
custody of the children when their mother, Yesenia Garcia, decided to go to Mexico at
the end of June 2013. Garcia was supposed to be gone for only two weeks. When
Gomez picked up the children in Los Angeles, they appeared happy and healthy.
       Gomez and the children initially lived in Gomez’s apartment. Gomez’s boyfriend
at the time, Jorge Morales, would come to the apartment occasionally. At times Morales
would help with the children.
       Gomez and the children eventually moved to Maria Pantoja’s home because of a
problem with her apartment. The children were treated well and ate with the family.


                                            7.
       Gomez testified about the incident where Karla fell out of the bathtub, which
occurred in late July or early August. Gomez explained she had left Karla in the bathtub
while she went into the kitchen to check on something cooking on the stove. She
returned to the bathroom when she heard Morales call her name. She saw Karla stuck,
head down, between the door and the bathtub. The back of Karla’s head was against the
bathtub. Morales was standing by the sink staring at Karla. Gomez checked Karla’s
head but she did not appear to be hurt.
       Karla’s health began to deteriorate approximately two weeks after the fall from the
bathtub. The people Gomez talked to all told her it was unnecessary to take Karla to a
doctor, that she would get better. Gomez and Jaime conducted research on the Internet to
attempt to determine what was wrong with Karla. Gomez concluded Karla may have
been hydrocephalic, dehydrated, or had stomach worms. Gomez attempted to treat the
dehydration and worms. Gomez did not believe Karla would die from her injuries.
       Gomez admitted tying Karla during a car trip because Karla would not stop
pulling her hair. However, she denied shaking Karla, claiming she admitted doing so to
the police because she was so upset she no longer cared.
The Verdict and Sentencing
       The jury found Gomez guilty of second degree murder and willful cruelty to a
child. It also found the great bodily injury enhancement true. The trial court sentenced
Gomez to a term of 15 years to life for the second degree murder count, and stayed the
sentence on the child cruelty count.
                                       DISCUSSION
       Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
asserting she did not identify any arguable issues in the case. On February 26, 2015, we
sent a letter to Gomez inviting her to identify any issues she would like this court to
address. Gomez responded to our letter identifying, as we understand it, three issues she
believes require reversal of the judgment.


                                             8.
       The first issue identified by Gomez involved Juror No. 5. Shortly after testimony
began in the case, the trial court received a note from this juror stating she might have
some familiarity with the case as a result of her employment with child protective
services. The juror was examined by the trial court and both counsel. She explained she
is bilingual and is often asked to translate for other social workers when a Spanish
interpreter is needed. Juror No. 5 had a vague recollection that another social worker had
asked her to place a phone call to Mexico. The social worker explained the purpose of
the call was to attempt to locate a child’s mother. Apparently Juror No. 5 was told the
mother was Spanish speaking, there was a child in custody, and a sibling had passed
away while in the custody of a caretaker. Juror No. 5 also recalled the dead sibling had
been found in a vehicle. Juror No. 5 placed a call and either left a message or did not
speak to anyone, but was certain she did not speak to the mother. Juror No. 5 was not
certain this was the same case as the one pending before the court, but was certain she did
not investigate the matter and received only a brief summary of the purpose of the call.
       Juror No. 5 confirmed she did not form any opinions about the matter at the time,
she did not know any details about the matter, did not know how the sibling had died, and
her involvement was limited to the issue of making a phone call. She also confirmed she
would be able to set aside anything related to the phone call and make a decision on the
evidence at trial. Without objection by either party, the trial court concluded Juror No. 5
was a fair and impartial juror and allowed her to remain on the jury. Gomez asserts Juror
No. 5 should have been excused for cause.

       “The qualification of jurors challenged for cause comes within the wide
       discretion of the trial court, seldom disturbed on appeal. [Citation.] To
       find a juror is actually biased, the court must find ‘the existence of a state of
       mind’ regarding the case or the parties that would prevent the prospective
       ‘juror from acting with entire impartiality, and without prejudice to the
       substantial rights of any party.’ [Citations.] … ‘“On appeal, we will
       uphold the trial court’s ruling if it is fairly supported by the record ….”’
       [Citation.]” (People v. Rountree (2013) 56 Cal.4th 823, 842.)



                                              9.
       The record summarized above does not provide any support for the contention that
Juror No. 5 was actually biased against Gomez. She explained she had a minimal
involvement in a case similar to this one, but was not sure it was actually this case. She
did not learn any of the details related to the child’s death, and affirmed she could base
her decision on the facts before her. The trial court did not have any basis for dismissing
the juror for cause.
       The second issue identified by Gomez was ineffectiveness of defense counsel.
Gomez asserts defense counsel failed to make proper objections, failed to introduce e-
mail or text messages that would have established Gomez’s good faith efforts to save
Karla, and failed to call certain witnesses.4
       A defendant is entitled to a new trial if she received ineffective assistance of
counsel at trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.)

       “Establishing a claim of ineffective assistance of counsel requires the
       defendant to demonstrate (1) counsel’s performance was deficient in that it
       fell below an objective standard of reasonableness under prevailing
       professional norms, and (2) counsel’s deficient representation prejudiced
       the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s
       failings, defendant would have obtained a more favorable result.
       [Citations.] A ‘reasonable probability’ is one that is enough to undermine
       confidence in the outcome. [Citations.] [¶] Our review is deferential; we
       make every effort to avoid the distorting effects of hindsight and to evaluate
       counsel’s conduct from counsel’s perspective at the time. [Citation.] A
       court must indulge a strong presumption that counsel’s acts were within the
       wide range of reasonable professional assistance. [Citation.] …
       Nevertheless, deference is not abdication; it cannot shield counsel’s
       performance from meaningful scrutiny or automatically validate challenged
       acts and omissions. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468,
       540-541.)
       Gomez’s assertions do not establish either prong of the ineffective assistance of
counsel analysis. Gomez does not show what evidence would have been excluded if a


       4We note  Gomez was represented at trial by two attorneys, one male and one female,
who each actively participated in her defense. Gomez’s complaints appear to be directed to the
male defense attorney.

                                                10.
proper objection was made, nor does she explain why the objection would have been
proper under the law. Nor does Gomez show the relevance of the e-mail or text messages
that were not introduced, and how such evidence would have affected the outcome of the
trial. We note the record contains ample evidence that Gomez was worried about Karla’s
health, but it also shows she failed to obtain medical treatment for the child despite her
concern. Finally, Gomez fails to explain what evidence would have been introduced had
additional witnesses been called in her defense. Nor does the record indicate why such
evidence was relevant or if it would have affected the outcome of the trial.
       Our review of the record reveals defense counsel actively and competently
defended Gomez in a very difficult case. Nothing in the record suggests a different
outcome would have been obtained had more objections been made or additional
evidence introduced. Accordingly, Gomez cannot establish defense counsel was
ineffective.
       Finally, Gomez asserts there is insufficient evidence she caused the death of Karla
with malice aforethought.

       “When considering a challenge to the sufficiency of the evidence to support
       a conviction, we review the entire record in the light most favorable to the
       judgment to determine whether it contains substantial evidence—that is,
       evidence that is reasonable, credible, and of solid value—from which a
       reasonable trier of fact could find the defendant guilty beyond a reasonable
       doubt.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
“[T]he relevant question is 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 beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S.
307, 319; see People v. Staten (2000) 24 Cal.4th 434, 460 [“An identical standard applies
under the California Constitution”]; People v. Cain (1995) 10 Cal.4th 1, 39, overruled on
other grounds in People v. Moon (2005) 37 Cal.4th 1, 17 [same standard applies to
sufficiency of the evidence to sustain special circumstance finding].) “[I]t is the jury, not
the appellate court which must be convinced of the defendant’s guilt beyond a reasonable

                                             11.
doubt.” (People v. Bean (1988) 46 Cal.3d 919, 933.) “In a case, such as the present one,
based upon circumstantial evidence, we must decide whether the circumstances
reasonably justify the findings of the trier of fact, but our opinion that the circumstances
also might reasonably be reconciled with a contrary finding would not warrant reversal of
the judgment. [Citation.]” (People v. Proctor (1992) 4 Cal.4th 499, 528-529.)
       We need not review the evidence at length to reject this claim. The substantial
injuries suffered by Karla and Gomez’s failure to obtain medical care provided ample
evidence to permit the jury to infer that Gomez intentionally injured Karla, the natural
and probable consequences of the act causing the injury were dangerous to human life,
Gomez knew her actions were dangerous to human life, and she deliberately acted with
conscious disregard for human life when she injured Karla.
       Not only is there no merit to Gomez’s contentions, our review of the record did
not reveal any arguable issues in this case. The evidence was undisputed for the most
part, especially considering the statements made by Gomez to the police investigators.
Defense counsel’s strategy of attempting to minimize Gomez’s crime was sound, but
could not overcome the overwhelming evidence to support the verdict. There was no
dispute about the jury instructions, the trial court’s rulings were sound, and the prosecutor
argued the evidence without undue hyperbole.
                                      DISPOSITION
       The judgment is affirmed.




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