People v. Gutierrez, B275509

CourtCalifornia Court of Appeals
Writing for the CourtPERLUSS, P. J.
Citation20 Cal.App.5th 847,229 Cal.Rptr.3d 531
Parties The PEOPLE, Plaintiff and Respondent, v. Mitchell Alejandro GUTIERREZ, Defendant and Appellant.
Decision Date26 February 2018
Docket NumberB275509

20 Cal.App.5th 847
229 Cal.Rptr.3d 531

The PEOPLE, Plaintiff and Respondent,
v.
Mitchell Alejandro GUTIERREZ, Defendant and Appellant.

B275509

Court of Appeal, Second District, Division 7, California.

Filed February 26, 2018


Elana Goldstein, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Mary Sanchez, Ryan M. Smith, and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, P. J.

20 Cal.App.5th 849

Mitchell Alejandro Gutierrez appeals from the judgment entered after a jury convicted him of fleeing a police officer while driving recklessly, unlawful driving or taking a vehicle, driving under the influence of alcohol and hit-and-run driving. Gutierrez contends he was improperly convicted of felony vehicle theft and the offense should be reduced to a misdemeanor. He also contends the trial court committed prejudicial error by admitting evidence of his prior conviction for unlawful driving or taking a vehicle. Finally, Gutierrez asks us to review the sealed transcripts of the hearing regarding disclosure of the personnel file of the police officer involved in his pursuit and arrest to determine whether the court abused its discretion when it concluded there were no discoverable materials.

We reverse Gutierrez's felony conviction for unlawful driving or taking a vehicle (count 2), vacate his sentence in its entirety and remand for retrial on that count or resentencing. On remand the People will have the election of accepting a reduction of the felony conviction on count 2 to a misdemeanor or retrying count 2 as a felony. In all other respects we affirm Gutierrez's convictions.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

Gutierrez was charged in an information with felony counts for fleeing a pursuing

229 Cal.Rptr.3d 534

police officer while driving recklessly ( Veh. Code, § 2800.2 )1 (count 1) and driving or taking a vehicle without the owner's consent after a prior conviction for the same or similar offense (§ 10851; Pen. Code, § 666.5 ) (count 2) and misdemeanor counts for driving under the influence (DUI) of alcohol within 10 years of two other DUI offenses (§§ 23152, subd. (a), 23546) (count 3), driving with a blood alcohol content greater than or equal to .08% within 10 years of another DUI offense (§§ 23152, subd. (b), 23540) (count 4) and hit-and-run driving resulting in property damage (§ 20002, subd. (a)) (count 5). It was specially alleged as to count 2 that Gutierrez had previously been convicted of a felony violation of section 10851 and as to counts 3 and 4 that he had previously been convicted of one

20 Cal.App.5th 850

violation of section 23103, subdivision (a) (reckless driving), and one violation of section 23152, subdivision (b). Gutierrez pleaded not guilty and denied the special allegations.

2. Evidence at Trial

In June 2015 Gutierrez was in a relationship with Jorgann Gonzalez.2 Gutierrez routinely drove Gonzalez's car, often taking her to work in the morning, keeping the car during the day, and picking her up in the evening. In early June 2015 Gonzalez was in a car accident, and her car was damaged. Her father rented a Nissan Altima for her to drive while her car was being repaired. Gonzalez was listed as an authorized driver on the car rental agreement. Gutierrez was not.

On the morning of June 26, 2015 Gutierrez drove Gonzalez to a doctor's appointment in the rental car. After the appointment the couple spent the day at Gutierrez's house. Around 6 p.m. Gutierrez told Gonzalez he was leaving and would return later. Approximately 30 minutes later Gonzalez realized the rental car keys were not in her purse where she had left them and the car was gone. Gonzalez called Gutierrez and told him to bring the car back. He said he would.

Gutierrez returned approximately an hour later. He parked the rental car down the street from his house and got out, but left the engine running. Gonzalez came outside. As she approached the car, Gutierrez got back in and drove away. Gonzalez called Gutierrez approximately five times to tell him to bring the car back, but he did not answer his phone. Gonzalez testified she had not given Gutierrez permission to take the car that evening.

Around 10:45 p.m. Officer Atanacio Jimenez of the Gardena Police Department was patrolling in a marked police car. He noticed a vehicle fail to stop at a stop sign and turn the corner at a high rate of speed. The vehicle, which Jimenez later learned was being driven by Gutierrez, turned into an alley travelling approximately 15 miles per hour over the speed limit. Jimenez pursued the vehicle without turning on his patrol car's lights or siren and observed Gutierrez fail to stop at another stop sign, fail to stop at multiple red lights and drive on the wrong side of the road. At that point Jimenez activated his vehicle's lights and siren. Gutierrez did not pull over, instead proceeding through another stop sign without stopping. He continued driving over 40 miles per hour. Gutierrez then pulled into a parking lot and jumped out of the rental car while it was still moving. The car collided with a parked car. Gutierrez ran toward the rear entrance of an adjacent bar. Jimenez

20 Cal.App.5th 851

asked a bystander where Gutierrez had gone and was told Gutierrez ran into the

229 Cal.Rptr.3d 535

bar. Jimenez broadcast the situation over the radio, and one of the responding officers arrested Gutierrez outside the front entrance of the bar. Jimenez's patrol car was equipped with a dashboard camera, which was activated when Jimenez turned on the car's lights and siren. The video footage of the incident was played for the jury.

Gardena Police Officer Jaycon Sanchez responded to Officer Jimenez's broadcast call on June 26, 2015. When Sanchez arrived at the front entrance of the bar Gutierrez had entered, a woman outside the bar told him a man standing in front of the bar, later identified as Gutierrez, was the person he was pursuing. Sanchez testified Gutierrez appeared drunk. Gutierrez refused a field sobriety test. A breathalyzer test administered at the police station showed Gutierrez's blood alcohol level as .14 percent. Upon learning of the night's events, Gonzalez told police Gutierrez had stolen the car.

Gutierrez did not testify or present any witnesses in his defense.

3. Jury Instructions and Closing Argument Regarding Unlawful Taking or Driving a Vehicle

The court instructed the jury, pursuant to CALCRIM No. 1820, that to prove Gutierrez guilty of unlawfully taking or driving a vehicle in violation of section 10851, "the People must prove that: [¶] 1. The defendant took or drove someone else's vehicle without the owner's consent; [¶] AND [¶] 2. When the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time."3 As part of CALCRIM No. 252, Union of Act and Intent, the court also instructed, to find a person guilty of the crime of driving or taking a vehicle without consent, "that person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with a specific intent. ... [¶] ... [¶] The specific intent required for the crime of Driving or Taking a Vehicle Without Consent is the intent to deprive the owner of possession or ownership of the vehicle for any period of time."

In her closing argument following the court's instructions, the deputy district attorney reviewed the evidence showing that Gutierrez took and drove the rental car without the consent of either the rental car company, its owner, or Gonzalez, an authorized driver. She continued, "We know that [Gutierrez] took the car for an hour and a half the first time, and the second time he took

20 Cal.App.5th 852

the car for an hour and a half until he was spotted by Officer Jimenez. And as we know, [Gonzalez] testified that she kept calling the defendant, and he wouldn't answer. So it becomes clear the defendant intended to deprive [the rental car company] of possession of the car during the duration of the time that he was driving the vehicle."

4. Jury Deliberations, Verdict and Sentencing

The jury began deliberating on the afternoon of February 22, 2016. The next day the jury submitted a question to the court: "Do we consider [the rental car company] as the legal owner of the vehicle and that [Gonzalez] or her father cannot give permission to drive the car?" In response the court allowed counsel to argue their positions to the jury for five minutes each. The prosecutor again argued the

229 Cal.Rptr.3d 536

rental car company was the legal owner of the vehicle and reiterated the testimony of the rental car company representative, who had stated only Gonzalez and her father had consent and authorization to...

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107 practice notes
  • People v. Jennings, D074352
    • United States
    • California Court of Appeals
    • November 26, 2019
    ...a reasonable doubt that he intended to take property worth more than $950 when he entered the store.4 (Cf. People v. Gutierrez (2018) 20 Cal.App.5th 847, 855, 229 Cal.Rptr.3d 531 ["to obtain a felony conviction for vehicle theft [under 42 Cal.App.5th 673 Veh. Code, § 10851 ], the People wer......
  • People v. Lester, F079801
    • United States
    • California Court of Appeals
    • July 27, 2022
    ...of its civic duty, rather than its difficulty in reaching a decision. (See Walker, supra, at p. 439; People v. Gutierrez (2018) 20 Cal.App.5th 847, 863.) In sum, even if defendant's statements to Detective Hull had been excluded, it is not reasonably probable the result would have been diff......
  • People v. Hola, C087459
    • United States
    • California Court of Appeals
    • April 11, 2022
    ...v. Page (2017) 3 Cal.5th 1175, 1187, 225 Cal.Rptr.3d 786, 406 P.3d 319 ( Page ).) Thereafter, the court in People v. Gutierrez (2018) 20 Cal.App.5th 847, 229 Cal.Rptr.3d 531 ( Gutierrez ), reversed a Vehicle Code section 10851 conviction then pending appeal based on the newly settled rule o......
  • People v. Booker, B295128
    • United States
    • California Court of Appeals
    • December 10, 2020
    ...to object to instruction does not forfeit issue on appeal when alleged error concerns elements of offense]; People v. Gutierrez (2018) 20 Cal.App.5th 847, 856, fn. 8, 229 Cal.Rptr.3d 531 ["[W]hen an instruction allegedly affects the substantial rights of the defendant, it is reviewable even......
  • Request a trial to view additional results
107 cases
  • People v. Jennings, D074352
    • United States
    • California Court of Appeals
    • November 26, 2019
    ...a reasonable doubt that he intended to take property worth more than $950 when he entered the store.4 (Cf. People v. Gutierrez (2018) 20 Cal.App.5th 847, 855, 229 Cal.Rptr.3d 531 ["to obtain a felony conviction for vehicle theft [under 42 Cal.App.5th 673 Veh. Code, § 10851 ], the People wer......
  • People v. Lester, F079801
    • United States
    • California Court of Appeals
    • July 27, 2022
    ...of its civic duty, rather than its difficulty in reaching a decision. (See Walker, supra, at p. 439; People v. Gutierrez (2018) 20 Cal.App.5th 847, 863.) In sum, even if defendant's statements to Detective Hull had been excluded, it is not reasonably probable the result would have been diff......
  • People v. Hola, C087459
    • United States
    • California Court of Appeals
    • April 11, 2022
    ...v. Page (2017) 3 Cal.5th 1175, 1187, 225 Cal.Rptr.3d 786, 406 P.3d 319 ( Page ).) Thereafter, the court in People v. Gutierrez (2018) 20 Cal.App.5th 847, 229 Cal.Rptr.3d 531 ( Gutierrez ), reversed a Vehicle Code section 10851 conviction then pending appeal based on the newly settled rule o......
  • People v. Booker, B295128
    • United States
    • California Court of Appeals
    • December 10, 2020
    ...to object to instruction does not forfeit issue on appeal when alleged error concerns elements of offense]; People v. Gutierrez (2018) 20 Cal.App.5th 847, 856, fn. 8, 229 Cal.Rptr.3d 531 ["[W]hen an instruction allegedly affects the substantial rights of the defendant, it is reviewable even......
  • Request a trial to view additional results

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