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Name: People v. Gomez
Case #: B159879
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 03/21/2003
Subsequent History: Rev. denied 6/11/03

Appellant was identified as the shooter of his intended victim, and his victim’s pregnant girlfriend, who happened to be with the victim when he was shot. He was convicted of two counts of first degree murder and a special circumstance allegation of multiple murders. The jury was instructed on transferred intent by way of CALJIC 8.65. On appeal, Gomez argued that the instruction improperly permitted the jury to convict him of the first degree murder of the girlfriend by applying transferred intent to what could have been an accidental shooting. The argument was based on a contention that appellant committed the murders in 1993, when the law did not permit the doctrine of transferred intent to be applied when the unintended victim was killed accidentally. The appellate court here rejected that argument. When the murders were committed, the appellate courts were split on this issue. Nothing in CALJIC’s Use Note to 8.65 suggested it could not be used in this situation. Therefore the instruction was not in violation of controlling law, and was not improper. Further, given the evidence appellant intended to murder the girlfriend, and the absence of argument to the contrary at trial, any error was harmless beyond a reasonable doubt.