People v. Gutierrez, B058207

• Decision Date: 20 November 1992
• Docket Number: No. B058207,B058207
• Citation: 10 Cal.App.4th 1729,13 Cal.Rptr.2d 464
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Abraham Matilde GUTIERREZ, Defendant and Appellant.

Page 464

13 Cal.Rptr.2d 464

10 Cal.App.4th 1729

The PEOPLE, Plaintiff and Respondent, v. Abraham Matilde GUTIERREZ, Defendant and Appellant.

No. B058207.

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

Nov. 20, 1992.

Rehearing Denied Dec. 15, 1992.

Review Denied March 11, 1993.

[10 Cal.App.4th 1732] Richard L. Knickerbocker, Los Angeles, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Senior Asst. Atty. Gen., Keith H. Borjon, Supervising Deputy Atty. Gen., and Alene M. Games, Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

Defendant Gutierrez was convicted of attempted murder and of discharging a firearm at an occupied motor vehicle. In sentencing defendant, the trial court imposed enhancements for use of a gun and for great bodily injury as to the attempted murder conviction. The court ordered the sentences on both convictions to run consecutively. Defendant appeals the convictions and the sentences imposed. We affirm the judgment.

FACTS AND PROCEEDINGS BELOW

On June 2, 1990, the defendant along with 30 to 40 of his acquaintances were at a friend's house. While the defendant and his friends drank beer in the front yard, Ms. Zarate and three others drove by the party. The defendant and his friends threw beer cans and shouted gang slogans as the car passed by.

The defendant then pursued the victims on a motorcycle. While a second person drove the motorcycle, the defendant sat on the back with a gun in his hand. During the chase, the victims saw the defendant clearly. As the motorcycle approached the car, the defendant fired the gun into the car, striking Ms. Zarate in the head.

At the time of the trial, Ms. Zarate remained hospitalized in a coma, suffering brain damage from the gunshot wound to the head.

Defendant was charged with attempted murder (Count I) and discharging a gun into an occupied motor vehicle (Count II). The jury found the defendant guilty of attempted murder but found the attempt to commit murder was not willful, deliberate, and premeditated. The trial court sentenced defendant to 17 years in prison on Count I. The court sentenced defendant to the upper term of nine years. In addition, the court enhanced the sentence by five years for the use of a gun, pursuant to Penal Code section 12022.5, subdivision (a), plus three years for great bodily injury, pursuant to Penal Code section 12022.7. ¹ The jury found the defendant guilty of discharging a firearm at an occupied motor vehicle, count II. The court imposed one third of the 60-month midterm sentence. The court ordered the sentences on Count I and II to be served consecutively for a combined total of 18 years and 8 months.

I. SUBSTANTIAL EVIDENCE SUPPORTS DEFENDANT'S CONVICTIONS OF ATTEMPTED MURDER AND DISCHARGING A FIREARM INTO AN OCCUPIED MOTOR VEHICLE.

It is well established an appellate court may not reverse a conviction for insufficient Defendant's defense at trial was mistaken identity. On appeal he claims the People failed to meet their burden of proof because there was no evidence anyone at the party had a motorcycle. In addition, two defense witnesses testified defendant was not the shooter.

                evidence, if there is, on the whole record, substantial evidence to support it.  (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110.)   We view all of the evidence in the light most favorable to the prosecution where any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  (Ibid.)
                

We find substantial evidence in the record to support the convictions. At trial, a detective with the Los Angeles County Sheriff's Department gang detail testified one of the defendant's acquaintances at the party owned a white Ninja motorcycle. More importantly, two of the victims identified defendant as the gunman. The defendant's distinctive lips and nose gave the identifications a high degree of reliability. Furthermore, one of the victims knew the defendant from high school. The trier of fact is responsible for weighing the evidence presented, resolving conflicting testimony and drawing reasonable inferences. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560.) We have no reason to disturb the jury's finding in this case.

II. THE TRIAL COURT PROPERLY ADMITTED EXPERT TESTIMONY CONCERNING THE INSIGNIFICANT AMOUNT OF GUNSHOT RESIDUE FOUND ON DEFENDANT'S HANDS.

Following the defendant's arrest, a gunshot residue test was conducted on his hands. At trial, an expert witness testified the test results did not permit a conclusion to be drawn as to whether the defendant had handled or fired a gun. The parties agreed to the introduction of the gunshot residue test and the testimony of the expert witness. The defendant also stipulated to the witness's expertise in the area of gunshot residue analysis.

In questioning the expert witness, the People posed certain hypothetical questions. The People asked whether the delay in residue testing, the effect of the wind while riding on the motorcycle, the result of removing a long-sleeved shirt or jacket, and the effect of having contact with beer could have reduced the gunshot residue on the defendant's hands. The expert testified that assuming a person fired a gun and given the above-mentioned factors it would not be unusual to find an insignificant amount of gunshot residue on the person's hands.

On appeal, defendant argues the expert witness's testimony in response to the hypothetical questions was irrelevant because the insignificant amount of gunshot residue on the defendant's hands prevented the drawing of any inferences as to whether the defendant actually had handled or fired the gun. In view of this, the defendant contends, the jury should not have been permitted to draw any inferences from the expert witness's testimony.

We reject this argument. Defendant failed to object to the hypothetical questions posed to the expert. Therefore, the objections were waived. (Evid. Code, § 353.) Furthermore, if the defendant was entitled to introduce evidence the test did not suggest he had fired a gun, the People were entitled to elicit evidence showing why the test did not rule out that possibility. Such testimony was clearly relevant.

III. THE TRIAL COURT HAD SUFFICIENT REASONS TO IMPOSE THE UPPER TERM FOR COUNT I.

The trial court imposed the upper term on the attempted murder conviction. The court stated it imposed the upper term because of the aggravating circumstances set forth in the probation report and because the crime involved great bodily injury and disclosed a high degree of cruelty, viciousness, and callousness.

Under California Rules of Court rule 421(a)(1), the trial court may impose The trial court erred by using the fact the crime involved great bodily injury in imposing the upper term. The record shows the court imposed an enhancement for great bodily injury while using the same fact to impose the upper term. Such dual use of fact is not permitted. Penal Code section 1170 subdivision (b) prohibits the court from imposing the upper term by using the fact of any enhancement upon which sentence is imposed under Penal Code section 12022.7, (enhancement for great bodily injury).

the upper term if the court is convinced the crime involved great violence, great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness. (See, e.g., People v. Harvey (1984) 163 Cal.App.3d 90, 117, 208 Cal.Rptr. 910; People v. Webber (1991) 228 Cal.App.3d 1146, 1169, 279 Cal.Rptr. 437.)

The error, however, was harmless. Other aggravating circumstances, recited by the trial court, support the court's sentence choice.

E.g., the defendant's probation report reveals the defendant was convicted of taking a vehicle without the owner's consent. Defendant was on probation from this crime when he committed the instant crimes. The court may consider the fact a "defendant was on probation or parole when the crime was committed" as a circumstance in aggravation to impose the upper term. (Cal.Rules of Court, rule 421(b)(4); People v. Fields (1984) 159 Cal.App.3d 555, 568-569, 205 Cal.Rptr. 888.)

The defendant's conduct also demonstrates a high degree of cruelty, viciousness, and callousness. The defendant stalked and pursued his victims on a motorcycle. He chased his victims for blocks, exposing the passengers, other drivers, and pedestrians to the dangers of a traffic accident. Additionally, the firing of the gun into a car full of people reflects an indifference to human life. Such a crime is reprehensible to society.

In view of the above, we hold the trial court properly stated sufficient circumstances in aggravation to impose the upper term.

IV. THE TRIAL COURT PROPERLY IMPOSED SENTENCES ON COUNT I FOR THE ATTEMPTED MURDER OF SANDRA ZARATE AND ON COUNT II FOR DISCHARGING A FIREARM INTO AN OCCUPIED MOTOR VEHICLE.

Defendant argues the trial court imposed multiple punishments for a single course of action. The defendant further asserts the course of action was limited to one victim. We disagree.

Penal Code section 654 prohibits punishment for more than one violation arising out of an act or omission which is made punishable in different ways by different statutory provisions. At the preliminary hearing, the People introduced evidence establishing the defendant had fired a shot into a car with a driver and three passengers. It is the "totality of the evidence" produced at the preliminary hearing which notifies the defendant of the potential charges. (People v. Donnell (1976) 65 Cal.App.3d 227, 233, 135 Cal.Rptr. 217.) Thus, as to count II, the People properly put the defendant on notice as to existence of multiple victims.

Thus, the sole issue is whether Penal Code section 654 applies where the defendant is convicted of attempted murder and discharging a...