People v. Gutierrez

• Decision Date: 01 April 1994
• Docket Number: No. B066651,B066651
• Citation: 28 Cal.Rptr.2d 897,23 Cal.App.4th 1576
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Vincent GUTIERREZ, Defendant and Appellant.

Page 897

28 Cal.Rptr.2d 897

23 Cal.App.4th 1576

The PEOPLE, Plaintiff and Respondent, v. Vincent GUTIERREZ, Defendant and Appellant.

No. B066651.

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

April 1, 1994.

Review Denied July 14, 1994.

[23 Cal.App.4th 1578] Catherine Fancher Campbell, Fresno, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Marc E. Turchin, Supervising Deputy Atty. Gen., Paul C. Ament, Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

We disagree with People v. Santos (1990) 222 Cal.App.3d 723, 271 Cal.Rptr. 811 and hold that the intent required in the use of "force ... likely to produce great bodily injury" (Pen.Code, § 667.7, subd. (a)) is a general intent.

In a three phase trial, a jury first found Vincent Gutierrez (appellant) guilty of second degree murder (PEN.CODE, § 187¹; count I), assault with a firearm (§ 245, subd. (a)(2); count III), and possession of a firearm by a felon (§ 12021, subd. (a); count IV) but not guilty of attempted murder (§§ 664/187; count II). Firearm use allegations were found true (§ 12022.5; counts I and III) but a great bodily injury allegation (§ 12022.7; count III) not true. In the second phase the jury found habitual offender allegations (§ 667.7) and a state prison prior murder allegation (§ 190.05) to be true. In the third phase, the jury found the appropriate penalty for the second degree murder conviction to be 15 years to life in state prison. Appellant was sentenced to two life terms, consecutive to a 17 years to life term.

Appellant contends: (1) the trial court erred in giving a general intent instruction concerning the "use of force likely to cause bodily injury" allegation (§ 667.7); (2) he was improperly sentenced under section 667.7 because one of his prior "prison terms" was a commitment to the Youth Authority; (3) it was error to use his prior murder conviction both as an element of an offense (§ 12021) and as an enhancement (§ 667.7); and (4) the trial court erred regarding threats to witnesses by appellant's brother. We find no error and affirm the judgment.

FACTUAL BACKGROUND

There being no insufficiency of evidence claim, we summarize the evidence. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)

Cynthia Esquir managed an apartment building in East Los Angeles with her live-in companion, Jerry Gutierrez, appellant's brother. Appellant often visited the apartments and assisted his brother with security and odd jobs. The apartment was located in an area known for its gang activity, drive-by shootings and drug activity.

In the early morning hours of March 23, 1989, a group of people were gathered outside the apartment building. Many were intoxicated on drugs, alcohol or both. The crowd was noisy and restless and some of the people began shouting and throwing beer bottles.

An argument began between appellant, who was indoors trying to sleep, and Pedro Gonzalez, who was yelling and throwing bottles. Gonzalez threw a bottle at appellant who then threatened to kill Gonzalez if he did not quiet down. Appellant went inside, retrieved a gun and returned outdoors. Appellant shot Gonzalez four times, and at least once through the head at close range. Gonzalez died almost instantaneously.

Appellant then fired randomly at the fleeing crowd. One shot hit Israel Reynoso, who happened to be walking down the street that night. Reynoso was hospitalized for two weeks.

DISCUSSION

1. Appellant contends the trial court erred in giving a general intent instruction concerning the use of force likely to cause bodily injury allegation (§ 667.7).

The habitual offender statute, section 667.7, provides in pertinent part: "Any person convicted of a felony in which the person inflicted great bodily injury as provided in Section 12022.7, or personally used force which was likely to produce great bodily injury, who has served two or more prior separate prison terms as defined in Section 667.5 for [specified crimes] ... is a habitual offender...." (§ 667.7, subd. (a), italics added.)

As to one of its elements, the statute provides alternatives. If, in committing the felony, the defendant "inflicted great bodily injury" the element is satisfied. Alternatively, when no great bodily injury is inflicted, if the defendant "personally used force ... likely to produce great bodily injury" the element is satisfied.

This habitual offender enhancement, with both alternatives, was alleged as to counts II (attempted murder of Israel Reynoso), III (firearm assault of Israel Reynoso), and IV (possession of a firearm by a felon). ²

During the trial's first phase the jury found appellant not guilty of attempted murder, thus eliminating that count's habitual offender enhancement. As to the firearm assault on Israel Reynoso (count III), the jury found a separately pleaded section 12022.7 great bodily injury allegation not true. Because this separately pleaded allegation (§ 12022.7) is identical to the great bodily injury alternative element of section 667.7, the jury's finding foreclosed reliance on the great bodily injury alternative element of section 667.7.

Accordingly, in the second phase, when the jury was asked to determine whether the counts III and IV habitual offender allegations (§ 667.7) were true, the trial court gave instructions only on the remaining alternative, the use of "force ... likely to produce great bodily injury" allegation.

The trial court instructed the jury:

"In order to prove this allegation the People must prove:

"1. That in the commission of the offenses charged in counts III and IV of the information, the defendant personally used force which was likely to produce great bodily injury; ...

"As used in this instruction 'force likely to produce great bodily injury' means force that is likely to cause a significant or substantial physical injury. Force that is likely to cause minor or moderate injuries of a temporary nature does not constitute force likely to produce great bodily injury."

"In the allegation pursuant to 667.7 of the Penal Code that's the previous instruction [sic] that is charged in counts III and IV of the information, there must exist a union or joint operation of act or conduct in general criminal intent. To constitute a general criminal intent, it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful."

Appellant contends this instruction was in error because it informed the jury only a general intent (to use force) not a specific intent (to cause great bodily injury) was required.

Appellant entirely relies on People v. Santos (1990) 222 Cal.App.3d 723, 271 Cal.Rptr. 811, apparently the only case precisely apposite. Santos supports appellant's contention and if correctly decided requires a reversal of the instant habitual offender (§ 667.7) findings. We consider Santos.

In Santos, the defendant jumped on top of a sleeping 11 year old victim and punched her several times in the head causing bruising, a bloody nose, and swollen eye and lip. Thereafter, he committed various sexual acts upon her and forced her to orally copulate him. He was charged with various sexual offenses enhanced by a great bodily injury allegation (§ 12022.8) and by a habitual offender allegation (§ 667.7). Because, as in the instant case, ³ the jury found the great bodily injury allegation (§ 12022.8) not true, the prosecution solely relied on the alternative provision, "force ... likely to produce great bodily injury," to sustain the habitual offender allegation (§ 667.7). As in the instant case, the trial court instructed the jury only a general intent was required. The jury found the allegation true. The Court of Appeal reversed, holding "force ... likely to produce great bodily injury," within the meaning of section 667.7, includes the "specific intent to produce great bodily injury." (People v. Santos, supra, 222 Cal.App.3d 723, 742, 744, 271 Cal.Rptr. 811.)

The bases for the Santos holding are twofold. First, that the initial clause of section 667.7 ("inflicted great bodily injury as provided in Section 12022.7"), which Santos terms "clause ," requires a specific intent to produce great bodily injury. We assume, without deciding, this basis is correct. ⁴

The second basis for the Santos holding is contained entirely in the following paragraph.

"Of necessity, our inquiry must turn upon the degree of intent required under section 12022.7 because if clause requires specific intent, it would be inharmonious to require only general intent under clause . ⁵ Such a construction could produce the following result: Defendant A pummels X. X sustains great bodily injury. Defendant B pummels Y with equal force. Y does not sustain great bodily injury. Under clause , the section 667.7, subdivision (a) enhancement can be imposed on defendant B upon a finding of only general intent, although his victim did not suffer great bodily injury. Under clause , the section 667.7, subdivision (a) enhancement may be imposed on defendant A, whose victim was egregiously injured, only by application of the more stringent, specific intent standard. The result would be that prosecutors would not bother with clause at all. Presumably, a defendant who actually causes great bodily injury will invariably have a general intent to perform the acts that constitute force likely to produce such injury. Why bother with specific intent under clause if clause requires only general intent, if defendant's acts also satisfy clause , and if the enhancement is the same? To avoid this absurd result, clause necessarily requires specific...