People v. Gutierrez
| Decision Date | 08 September 2022 |
| Docket Number | F081666 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOHNNY GABRIEL GUTIERREZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No VCF160215B Gary L. Paden, Judge.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Craig S. Meyers Deputy Attorneys General, for Plaintiff and Respondent.
This case marks appellant Johnny Gabriel Gutierrez's third appeal, which is the result of the failure of appellant (or the trial court) to inform this court that the primary issue raised in his second appeal was appropriately addressed while that appeal was pending - thus obviating the necessity for appellate review. Nonetheless, we deem it important to illustrate the factual and procedural path that brings us to this point. Hopefully, this will serve as a cautionary tale in the hope that similar miscues will not occur in future cases to avoid the waste of judicial resources.
Appellant's case began in 2005, when he was convicted of two counts of assault by means of force likely to produce great bodily injury, with enhancements for the infliction of great bodily injury and committing the offenses for the benefit of a criminal street gang. In 2007, he was sentenced to the second strike term of 27 years. In 2008, this court affirmed the judgment on direct appeal.
In 2017, appellant filed a postjudgment motion alleging that he was improperly sentenced for both the great bodily injury and gang enhancements. The superior court summarily denied the motion, and appellant filed a notice of appeal. In this second appeal, appellant's appointed counsel raised one issue - that both the great bodily injury and gang enhancements could not be imposed to his conviction.
While his second appeal was pending, however, the California Department of Corrections and Rehabilitation (CDCR) advised the superior court about the same sentencing error involving the two enhancements. In September 2018, the superior court held a hearing with appellant's trial counsel present corrected the error, and modified his sentence to 26 years eight months. Unfortunately, none of the interested parties advised this court (or apparently his appointed appellate counsel) that the identical issue briefed and pending on appeal had been resolved. In December 2018, this court filed the opinion in appellant's second appeal, agreed that both enhancements were improperly imposed, vacated his sentence, and remanded for correction of the sentencing error.
In 2020, the superior court held another hearing on remand as a result of the second appeal, decided there were no further errors to address, and denied appellant's motion to conduct another resentencing hearing. Appellant filed the instant appeal from that hearing, which is his third appeal.
In the initial briefing, the People argued this third appeal must be dismissed because the sentencing error on the enhancement was already corrected and appellant failed to raise any cognizable issues arising from the 2020 hearing. Appellant asserted he raised cognizable issues, the superior court should have conducted another resentencing hearing in 2020, and the matter must again be remanded for various reasons.
On June 22, 2022, we filed the opinion in this third appeal, and denied the People's motion to dismiss. We found appellant's current appellate contentions were cognizable, but meritless, and affirmed his convictions and sentence. We also addressed the procedural errors that led to this unfortunate waste of judicial resources. However, we were compelled to again remand the matter for the superior court to correct and file another abstract of judgment.
Thereafter, appellant filed a petition for rehearing challenging certain aspects of this court's opinion; he also raised two new sentencing issues for the first time, even though those issues were cognizable when this third appeal was pending. After requesting responsive briefing, we granted the petition.
We again affirm appellant's convictions but vacate the sentence and remand for the court to correct the abstract and to also address the two new sentencing issues in the interests of judicial economy.
FACTS[1]
On February 25, 2006, H.J. and his friend, J.O., attended a birthday party for H.J.'s nine-year-old nephew. The party was held at the home of Maria J. (Maria), H.J.'s sister, that was located in the territory of a regional subset of the Norteno gang called the Varrios Farmas Catorce (VFC.) The VFC identify themselves with the color red. J.O. wore a blue checkered shirt to the party. J.O. testified that he was not a member of the Norteno's rival gang, the Surenos, but was aware that the Surenos identify with the color blue.
While eating in his sister's open-door garage with J.O. and three or four other friends, H.J. noticed a grown man with a red handkerchief wrapped around his hand. This man went in and out of a neighbor's house while talking on a telephone and looking toward Maria's house. After this man talked on the phone, 10 to 12 more men arrived in front of the neighbor's house. Maria saw one man at this house and then saw more men slowly start to arrive. The men had red rags, and they were drinking and looking toward her house. She knew the red rags signified the Nortenos because red is "all over the place" in Farmersville.
At around 7:15 p.m., J.O. stepped out of the garage and toward the driveway to answer a cell phone call. H.J. went into the house to change. J.O. testified that just as he went out to answer the phone, he was attacked. He fell to the ground and "covered up" until the attack stopped. When H.J. came out of the house, he saw about four males kicking and hitting J.O., who was in a fetal position. H.J. recognized one of the assailants as Michael Herrera. Farmersville Police Officer Mosqueda identified Herrera as a known member of the VFC, who had been seen associating with appellant numerous times.
H.J. pulled one of the assailants off of J.O., turned halfway around, and was struck in the head by an iron folding chair. H.J. fainted.
Maria testified that around 7:15 p.m., one of H.J.'s friends came into the house and said," 'Call the police, they are fighting, they are fighting.'" When Maria went outside, she saw a group of about 10 men fighting. They were all wearing red, which indicated they were Nortenos. Four men were attacking J.O. with their feet and hands. Maria saw appellant Gutierrez, James Sanchez, and a third assailant attacking H.J., who was on the floor and bleeding. The two other assailants ran off.
Appellant remained, and he continued to attack H.J. Appellant kicked and stomped on H.J.'s head. Maria recognized appellant because he used to associate with another one of her brothers and come by her family's home. She knew he was a Norteno. She noticed appellant had a red bandana.
Maria saw appellant stomp on H.J.'s head about three times. She yelled at appellant, addressed him by name, and asked what he was doing. Appellant looked at her with an apparent expression of shock, stopped stomping on H.J.'s head, and fled.
The next day, Farmersville Police Officer McGuire went to appellant's house and found him standing in the front yard with a large group of northern gang members, including James Sanchez. McGuire knew these two men from a previous arrest in 2005 for spray painting gang indicia on a Minute-Mart wall. McGuire arrested appellant and Sanchez for their alleged involvement in the incident the night before. McGuire confiscated appellant's red shoelaces, a red bandana folded in his right front pocket, and a red baseball cap with Norteno gang symbols in the inside label. McGuire confiscated Sanchez's red shoelaces, baseball cap with a Norteno gang symbol embroidered on the front, and a belt with "F" engraved on the buckle standing for "Farmas," a short way of saying VFC.
Maria positively identified appellant in a photographic lineup as the man who attacked her brother.
At trial, Detective Sanchez, a gang expert, testified concerning the VFC gang. He opined that VFC is a criminal street gang, and that in his expert opinion, the charged offenses against appellant were committed in association with and for the benefit of the VFC gang.
Appellant testified that he is a VFC member, views anybody in a rival gang as an enemy, and associates with James Sanchez. However, he denied assaulting H.J. for gang-related reasons. The night of the incident, appellant was "drunk, relaxed, [and] swaggering a little bit," and walked around for 45 minutes, trying to find a party. He heard yelling at Maria's house, walked around the block again, and then saw a physical fight at the residence. He jogged over, not knowing it was Maria's house, because he thought one of his friends might be involved in the altercation. Appellant was hit, started hitting the closest person to him, whom he assumed had hit him, but never kicked or stomped anyone. Appellant denied that any of his gang members were there or that he fought to promote the gang effort.
On May 2, 2006, an information was filed in the Superior Court of Tulare County, case No. VCF160215B, charging appellant with count 1, assault by means of force likely to produce great bodily injury on H.J. (former Pen. Code, § 245, subd (a)(1)),[2] with enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (a)); and that offense was committed for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(1)(A); with another gang...
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