People v. Gutierrez
| Decision Date | 31 October 2019 |
| Docket Number | B250333 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSE JUAN GUTIERREZ et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
THE PEOPLE, Plaintiff and Respondent,
v.
JOSE JUAN GUTIERREZ et al., Defendant and Appellant.
It is ordered that the unpublished opinion in the above-captioned matter, filed on October 31, 2019, be modified as follows:
1. On page 35, in the sixth line from the bottom of the page, the word "seek" is replaced with the word "obtain."
This modification does not change the judgment.
Jacobo's petition for rehearing is denied.
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA388274)
APPEAL from judgments of the Superior Court of Los Angeles County, Monica Bachner, Judge. Judgments of conviction affirmed; sentences vacated and remanded for resentencing.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant Jose Juan Gutierrez.
Carlo Andreani for Defendant and Appellant Gerardo Jacobo.
Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Stephanie A. Myoshi, Amanda V. Lopez, Michael Keller, Idan Ivri, and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendants and appellants Jose Juan Gutierrez and Gerardo Jacobo were convicted of premeditated attempted murder, assault with a deadly weapon, and related crimes, with gang and firearm use enhancements. Appellants appealed their convictions, raising claims of insufficiency of the evidence, instructional error, and evidentiary error. Gutierrez also requested that this court review sealed transcripts relating to the prosecution's assertion of a governmental evidentiary privilege. In an unpublished opinion filed on March 3, 2016, we affirmed the judgments. (People v. Gutierrez (Mar. 3, 2016, B250333) [nonpub. opn.].)
On May 25, 2016, our Supreme Court granted Jacobo's petition for review but deferred further action pending its decision in People v. Mateo (rev. granted May 11, 2016, S232674). The court denied Gutierrez's review petition.
While Jacobo's appeal was pending, the Legislature enacted two statutes that are relevant here. Senate Bill No. 620 (Senate Bill 620) gave trial courts the discretion to strike or dismiss certain firearm enhancements. Senate Bill No. 1437 (Senate Bill1437) amended the law governing application of the natural and probable consequences doctrine as it relates to murder.
On April 10, 2019, the Supreme Court transferred the matter to us with directions to vacate our earlier decision and reconsider the cause in light of Senate Bill 1437.
In accordance with our Supreme Court's order, we vacate the March 3, 2016 nonpublished opinion. Both Jacobo and Gutierrez have filed supplemental briefs. Jacobo raises a variety of claims related to Senate Bill 1437. He also argues, for the first time, that the trial court erred by instructing the jury with a portion of CALCRIM No. 875. Both appellants argue that the matter must be remanded to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements in light of Senate Bill 620's amendment of Penal Code sections 12022.53 and 12022.5.1 Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Gutierrez further asserts that the imposition of restitution fines and two assessments, without a determination of his ability to pay, violated his due process and equal protection rights.
We affirm the judgments of conviction, but vacate appellants' sentences and remand for resentencing. Our decision regarding appellants' previously raised claims of error remains the same as in our original opinion.
Viewed in the light most favorable to the judgment (People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), theevidence relevant to the issues presented on appeal established the following.
Gutierrez and Jacobo were members of the City Terrace gang, whose main rival was the Geraghty Lomas gang. On August 7, 2011, at about 1:30 a.m., Martha G. drove her van to Duke's liquor store. Martha's passengers included her husband Joel, her stepson Santiago, and Santiago's friend, Ernie. The liquor store was within territory claimed by the Geraghty Lomas gang. Ernie and Santiago went into the store to buy beer while Martha and Joel waited in the van. Santiago was walking with a crutch.
Just after Ernie and Santiago entered the liquor store, a pickup truck pulled up and parked at the front entrance. Jacobo got out of the truck and went into the liquor store, where he appeared to exchange words with either Ernie or Santiago, or both of them.2 Jacobo made his purchase and left the store. Immediately afterward, Santiago and Ernie completed their purchase and left the store. As they were walking out the front entrance, Jacobo was sitting in the truck's front passenger seat and was in the act of pulling the truck door closed. Santiago gestured toward Jacobo and appeared to say something to him. In response, Jacobo and Gutierrez (who was sitting in the rear passenger seat) immediately got out of the truck.
Initially, Jacobo and Gutierrez both approached Santiago, who was standing just a few steps away. Jacobo punched Santiago in the face and grabbed his crutch. Santiago began running down the sidewalk in the direction of Martha's van. Meanwhile, Gutierrez turned and approached Ernie, who had been standing slightly behind Santiago. Gutierrez swung at Ernie's head with a handgun and kicked him. Ernie fell to the ground. Gutierrez kicked Ernie again and then joined Jacobo in chasing Santiago down the sidewalk. With Gutierrez running right behind him, Jacobo chased Santiago while swinging the crutch at him. As the three men were running down the sidewalk, Joel got out of Martha's van and joined the fray in an effort to protect Santiago. The melee spilled over into an intersection. Joel and Gutierrez apparently began to fight and then Gutierrez fired his gun six times at Joel, hitting him twice.3 Joel ran back to the van, which sped off. Jacobo and Gutierrez returned to the pickup truck and the driver sped off.
Martha testified that she was sitting in the van talking to Joel when the fight broke out. She watched Santiago and Ernie leave the liquor store, and she saw the defendants attack them. When Joel got out of the van to help Santiago, he began fightingwith Gutierrez. Martha saw Gutierrez shoot at Joel five or six times. Joel ran back to the van and said he had been shot. Martha drove off, leaving Ernie behind. She drove Joel to the hospital where he was treated for gunshot wounds to his leg and hip. According to Martha, Joel, Santiago and Ernie were not armed that night.
Alfonso E. was working at Duke's liquor store that night and he recognized Ernie as a regular customer. Alfonso saw Jacobo walk in, approach Ernie and exchange words with him. Jacobo said, Alfonso testified that Ernie replied by saying, However, when Alfonso was interviewed by the police, he told them that Ernie had responded: "This is Geraghty." Moments after Ernie and Santiago left the store, Alfonso heard gunfire.
The police found six expended .380-caliber shell casings in the street, five or six car lengths from Duke's liquor store.
Detective Eduardo Aguirre testified as the prosecution's gang expert. He was familiar with the City Terrace gang, whose primary activities included murders, shootings, robberies, drug sales, possession of handguns, burglaries, vandalism, and stealing cars. Duke's liquor store is located at the north end of territory belonging to the Geraghty Lomas gang, about a quarter mile from the border with City Terrace territory. Geraghty Lomas is City Terrace's main rival. Their contiguous border was a source of tension between the two gangs.
Aguirre testified it would constitute a sign of disrespect for a gang member to venture into a rival gang's territory. When a gang member "hits up" a potential rival by inquiring where he isfrom, this is a confrontational challenge (the speaker is asking the other person to reveal his gang affiliation) that is considered a provocation and can lead to a physical assault or a shooting if the person answers with the name of a rival gang. It is an accepted part of gang culture that a gang member must take some form of action when confronted by a rival. Backing down from a potential confrontation is frowned upon, and a gang member who did so would not only lose respect, but could possibly be ejected from the gang, assaulted, or killed. Aguirre explained that "if a gang member is disrespected out in the street, what you're supposed to do, you're supposed to act on it with some sort of violence."
Aguirre testified that gang members pass guns around among themselves and store them in safe places having no known ties to the gang. It is common for gang members to stay armed even when they are just out socializing with friends. Gang members make it a point to know whether fellow members of their gang are armed; this is "for their own protection, and in order to go and commit crimes."
Aguirre testified that both defendants were members of the City Terrace gang. Jacobo, who was 31 or 32 years old, had been a member since he was 15. Jacobo had personally admitted his membership...
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