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Gomez v. Garcia

filed: April 5, 1996.


Appeal from the United States District Court for the Central District of California. D.C. No. CV-94-05020-ER. Edward Rafeedie, District Judge, Presiding. Original Opinion Previously Reported at:,.

Before: Robert R. Beezer, Melvin Brunetti, and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Noonan.

Author: Noonan


The opinion filed on April 5, 1996 is amended as follows:

At slip opin., p.4217, ll.4-5, replace "Gomez's. . . counsel," with "Jose Lujan, who was present during the kidnapping,"

The petition for rehearing is DENIED.

NOONAN, Circuit Judge:

Rosie B. Garcia, Warden, appeals the qualified grant of habeas corpus by the district court to Elkin Jesus Gomez, a prisoner of the state of California. The district court adopted the report of a magistrate Judge that Gomez had been denied the right of counsel on appeal because his counsel represented a codefendant whose interest was in conflict with that of Gomez. The district court accordingly discharged Gomez "from all adverse consequences" of his conviction of kidnapping for the purpose of extortion unless he was permitted to take a second direct appeal of his conviction. Holding that no conflict existed for Gomez's counsel, we reverse the judgment of the district court.


Gomez and Luis Cardona were tried for the crime of kidnapping for extortion in violation of California Penal Code § 209(a). Both were found guilty. Evidence at their trial showed that on December 6, 1987 Claudia Espinoza, a cocaine dealer, hired Gomez and Cardona to make "collections" on behalf of Claudia and her husband Tito Espinoza. The first person targeted for collection was Billy Mikus, a drug dealer who had been dealing with the Espinozas during 1986 and who in 1987 was cooperating with the FBI in investigating the Espinozas' cocaine distribution.

On December 10, 1987 Gomez and Cardona met with two other associates of the Espinozas, Jose Lujan and Raoul Gallegos, and decided that, in carrying out the collection from Mikus, Lujan, Gallegos and Gomez would carry weapons. Following a plan they had agreed upon with Claudia Espinoza they waited for Claudia to bring Mikus to a parking lot that evening. Lujan pointed a gun at Mikus and moved into the passenger seat of his car. Gomez sat in the back seat where he was eventually joined by Cardona as Mikus drove the car at their command. Mikus did not speak Spanish and Gomez acted as the translator, conveying threats to Mikus' life if he did not pay the Espinozas $82,000. According to Jose Lujan, who was present during the kidnapping, Gomez told Mikus that all they "wanted was the drugs or the money." Mikus was also told by Gomez, "We are not robbing you" and "We are not extorting you," but all that was wanted was what he owed.

Mikus eventually escaped from the car and the FBI intervened to rescue him and to capture Lujan. Cardona and Gomez were later apprehended.

At the trial Cardona and Gomez were represented by different counsel. Both counsel asked for the dismissal of the kidnapping for extortion count on the ground that the defendants had a claim-of-right defense, i.e., that they were attempting to collect a debt that was owed and that therefore they had no specific intent to extort. This motion was denied. The defendants' request was also denied that the jury be instructed that kidnapping for the purpose of extortion required specific intent to extort and that the defendant did not have such specific intent because Mikus in fact owed $82,000 to Tito Espinoza. At the request of the prosecution the court charged the jury: "A person cannot have a good faith belief that he has a right to property when that property is derived from a notoriously illegal transaction. Sale of cocaine, and obtaining proceeds from such sale is a notoriously illegal transaction."

On the appeal of the case Cardona and Gomez were both represented by Earl L. Hansen. Hansen is a graduate of the University of Southern California Law School. On graduation he worked as a law clerk for the presiding Judge of the appellate department of the Los Angeles Superior Court. From 1961 to 1963 he was a prosecutor for the City of Los Angeles, prosecuting hundreds of criminal trials. From 1963 to 1994 he was engaged in private practice and served as counsel in over 150 felony jury trials, 200 court trials and many hundreds of cases resolved without trial. He was certified as a criminal law specialist in 1973 and has represented defendants in criminal trials in both state and federal courts throughout California. He was contacted by ...

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