P. v.
Gutierrez
Filed 7/17/12 P. v. Gutierrez CA1/4
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ARTURO
PEDRO GUTIERREZ,
Defendant and Appellant.
A135230
(Lake County
Super. Ct. No. CR923960)
Defendant
Arturo Pedro Gutierrez appeals from a judgment entered on his plea of no
contest to kidnapping (Pen. Code,
§ 207, subd. (a)), assault with a deadly weapon (§ 245, subd.
(a)(1)), and indecent exposure (§ 314, subd. (1)). His counsel has asked this court for an
independent review of the record to determine whether there are any arguable
issues on appeal. Having conducted the
requested review, we conclude there are no errors or
affirm the judgment.
I.
PROCEDURAL AND FACTUAL BACKROUND
The
underlying facts of this case are taken from the
probation report. Defendant had hired
John Doe, who was apparently a developmentally delayed man in his early to
mid-twenties, to trim marijuana and to take care of the animals and property at
defendant’s ranch. When Doe damaged
defendant’s car, defendant “[s]lung his head into the car, beating him with
firewood, forcing him to clean a recreational vehicle on the property, whipping
him with various items, choking him, [and] forcing certain sexual acts to be
performed.” For a two-week period,
defendant kept Doe against his will at the ranch, where Doe was subject to
“water torture,” sexual assaults, and beatings.
At one point, Doe was shut in a small shed used for drying and
processing marijuana; on another occasion he was taken to a recreational
vehicle and ordered to perform sexual acts on defendant. When Doe told defendant that he wanted to
leave the ranch, defendant told him that “he would not be allowed to leave
until he had worked off the value of the vehicle.” Eventually, defendant drove Doe home, but
threatened to kill him if he told anyone about what had occurred at the ranch.
Defendant
pleaded no contest to kidnapping (§ 207, subd. (a)), assault with a deadly
weapon (§ 245, subd. (a)(1)), and indecent exposure (§ 314, subd.
(1)). Pursuant to the negotiated
disposition, the remaining felony counts of oral copulation by force or fear
(§ 288a, subd. (a)(1)), making a criminal threat (§ 422), and
dissuading a witness (§ 136.1, subd. (b)(2)), together with a prior felony
conviction enhancement (§ 667.6, subd. (b)) and the special allegation of
probation ineligibility due to prior felony convictions (§§ 1203 (e)(4),
664, 187 [attempted murder], 12021, subd. (a) [felon in possession of firearm])
were dismissed.
Prior
to sentencing, defendant moved to withdraw his plea on the ground of
ineffective assistance of counsel based on his former counsel’s alleged failure
to adequately investigate his case. At
the ensuing sentencing hearing held that same day, the prosecutor expressed his
willingness to permit defendant to withdraw his plea, but indicated that
defendant would not be offered any plea deals and would have to take the case
to trial. After addressing the court and
consulting with counsel, defendant elected not to withdraw his plea.
The
trial court denied probation, finding the case presented no unusual
circumstances to overcome his presumptive ineligibility, and further finding
probation would not be appropriate even if defendant were not presumptively
ineligible. The trial court cited
defendant’s numerous prior convictions, his active involvement in the charged
offenses, and the fact that defendant was armed with various weapons beyond
just the one required for the assault with a deadly weapon (§ 245) charge,
as supporting the denial of probation in the instant case. The court selected the upper term of eight
years for the kidnapping conviction, finding numerous aggravating circumstances
(planning, dangerousness to society, violence and numerosity of prior
convictions, prior prison term, and prior performance on probation and parole)
outweighing the solitary mitigating circumstance (early admission of
guilt). The court imposed a consecutive
one-year term, representing one-third of the midterm, for the assault
conviction. Defendant was also sentenced
to a 180-day concurrent term for the indecent exposure conviction.
The
court awarded defendant 558 days of presentence credits, comprised of 486 days
of actual custody credits
(§ 2900.5) and 72 days of conduct credits (§ 2933.1). The court ordered defendant to register
pursuant to section 290. The court also
imposed a restitution fine of $1,800 (§ 1202.4, subd. (b)), a criminal
justice administration fee of $90 (Gov. Code, § 29550, subd. (c)), a court
security fee of $120 (§ 1465.8), a criminal conviction assessment of $90
(Gov. Code, § 70373), and victim restitution in the amount of $2,430
payable to the Victim Compensation and Government Claims Board (§ 1202.4,
subd. (f)). The court suspended
imposition of the $1,800 restitution fine, provided there is no subsequent
parole revocation.
II.
DISCUSSION
Defendant filed a
to the sentence imposed. Defendant’s
appointed counsel on appeal reviewed the record in this case, did not identify
any trial court errors, and asked this court for an independent review of the
record to determine if any arguable issues exist for review on appeal. (People v. Wende (1979) 25 Cal.3d 436,
441-442.) Defendant was advised that he
could file a supplemental brief with this court raising any issues he wished to
call to our attention, and defendant did not file any such brief.
We have reviewed the entire record
and conclude there are no meritorious issues to be argued or that require
further briefing on appeal. Defendant
was represented by counsel throughout these proceedings. We discern no error in the sentencing. The refusal to grant probation, and the
sentencing choices made by the trial court were consistent with applicable law,
supported by substantial evidence, and were well within the discretion of the
trial court. The restitution fines and
penalties imposed were supported by the law and facts. Lastly, we find no error in the court’s
determination that section 290 registration was mandated for defendant due to
his conviction of section 314, subdivision (1).
(§ 290, subd. (c).)
III.
DISPOSITION
The judgment is affirmed.
_________________________
Sepulveda,
J.*
We concur:
_________________________
Ruvolo, P. J.
_________________________
Rivera, J.
*
Retired Associate Justice of the Court of Appeal, First Appellate
District, Division 4, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
name="_ftn1" title="">[1] All further undesignated statutory
references are to the Penal Code.
