P. v. Gutierrez
Filed 1/8/13 P. v. Gutierrez CA5
THE OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
SALVADOR FERNANDO
GUTIERREZ,
Defendant and Appellant.
F062544
(Super. Ct. No. DF009589)
APPEAL
from a judgment of the Superior Court of
Gordon
S. Brownell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Salvador
Fernando Gutierrez forced his way into a house, shot one of the occupants in
the head, and hit another occupant with a gun.
Property stolen from another house was found in his car. He was convicted of
in possession of a firearm, receiving stolen property, and assault with a
firearm. He testified at trial, and in
his version of events, he was a drug dealer.
An occupant of the house was his supplier, and the shooting was an
accident that happened when a disagreement arose over payment, and the supplier’s
brother-in-law pulled a gun, leading to a struggle. The jury rejected this story and the court
sentenced Gutierrez to 26 years eight months plus 25 years to life.
In
this appeal, Gutierrez argues that the court prejudicially erred when it failed
to instruct the jury on self-defense for the charge of being a felon in
possession of a firearm. He also argues
that the court erroneously denied his posttrial request for confidential
information about a juror who purportedly fell asleep. We reject these arguments.
The
parties agree that Gutierrez’s sentence for burglary should have been stayed
under Penal Code section 654
concurrent sentence. In addition, the
court erroneously calculated the sentence for burglary as one-third of the
middle term under section 1170.1, subdivision (a). This method of calculation is not applicable
to stayed sentences. It will be
necessary to remand for resentencing to allow the trial court to exercise its
discretion to select the lower, middle, or upper term for the stayed sentence
on count 3. Finally, there are
clerical errors in the abstract of judgment for the sentence on count 5,
receiving stolen property, and for an enhancement on count 6, assault with
a firearm. We order these be corrected.
FACTUAL AND PROCEDURAL HISTORIES
On
October 29,
2009, police received a report of a
shooting at 2210 San Felice
Way in Delano, the home of
Brenda Cadiz and her husband Melecio Cadiz.
Brenda’s brother, Joejo Raquinio, lived with her. Officers found Brenda lying in a neighboring
driveway with one gunshot wound to the head and three to the left arm. She and Raquinio told the officers that a man
had come to the house saying he was seeking a job with Melecio. When he was told there were no jobs, he
forced his way into the house, produced a gun, and shot Brenda repeatedly. Raquinio and the man struggled; the man hit
Raquinio in the head with the gun, and Raquinio hit the man over the head with
a vase. The man fled on foot. He had once worked for the family. Raquinio and Brenda knew him as
Fernando.
Following
a trail of drops of blood, the officers tracked Gutierrez to 2222 Ruffion Court, a block away, where they found him hiding in a shed, bleeding, in
the back yard. With him in the shed were
some pieces of jewelry and a glass smoking pipe. Brenda and her daughter, Kaelah Cadiz,
identified Gutierrez as the man who had been at the house.
The
officers took a set of car keys from Gutierrez.
They found his car, which was parked a short distance from Brenda’s
house, and searched it pursuant to a warrant.
Inside was a gym bag containing 100 to 150 pieces of jewelry and some
baseball memorabilia. Some of the
jewelry and the baseball memorabilia had been reported stolen from a home in Visalia. On the roof of the house at 2214 Ruffion Court, two houses south of the shed where Gutierrez was hiding, the
officers found a .32-caliber revolver with four spent shell casings in the
cylinder.
The
district attorney filed an information charging Gutierrez with six counts: (1) attempted murder of Brenda
(§§ 187, 664); (2) assault of Brenda with a firearm (§ 245,
subd. (a)(2)); (3) first degree burglary (§ 460,
subd. (a)); (4) being a felon in possession of a firearm (former
§ 12021, subd. (a)(1));
property (§ 496, subd. (a)); and (6) assault of Raquinio with a
firearm (§ 245, subd. (a)(2)).
For sentence-enhancement purposes, the information alleged that
Gutierrez used a firearm in committing the offenses in counts 1, 2 and
6. (§§ 12022.5, subd. (a)(1);
12022.53, subd. (d).) The
information also alleged that Gutierrez had one prior strike conviction for
purposes of the Three Strikes Law (§§ 667, subds. (c)-(j), 1170.12,
subds. (a)-(e)) and four prior convictions resulting in prison terms
(§ 667.5, subd. (b)).
Gutierrez
testified at trial, contradicting the account given by the victims. In his version, he was a methamphetamine
dealer and Melecio Cadiz was his supplier.
In the past, Melecio had accepted payment for methamphetamine in the
form of jewelry and electronic devices.
Sometimes Brenda chose the pieces.
Gutierrez
came to the Cadizes’ house on October 29, 2009, to show
Brenda jewelry. They sat in her car and
smoked some methamphetamine, and then went in the house to look at the
jewelry. Gutierrez set out some pieces
on a coffee table in the living room while Brenda talked on the phone in the
kitchen. Raquinio came into the living
room and looked at the jewelry. He
offered Gutierrez $250 for some rings, including a Kansas City Royals American
League Championship ring, but Gutierrez wanted $500. Raquinio became angry and pulled out a
pistol.
Gutierrez
gathered up the jewelry and tried to leave, but Brenda shut the door as
Raquinio hit Gutierrez on the head with a vase.
Gutierrez fell and Raquinio pointed the gun at him. Gutierrez tried to take the gun from Raquinio
and, as they struggled, the gun went off twice and Brenda was shot. Then Gutierrez passed out. When he regained consciousness, Brenda and
Raquinio had left the room.
Gutierrez
tried to flee through the back door but encountered Raquinio, who still had the
gun, in the laundry room. Gutierrez
tried to take the gun again, succeeding this time. The gun went off two more times as the two
men fought. Raquinio continued to
struggle, so Gutierrez hit him on the head with the gun in
police would shoot him if they saw him with it.
In the street, people looked at him in a way he felt was
accusatory. He hid in the shed because
he was afraid. Then he lost
consciousness again. He was in
possession of the property stolen from Visalia because
someone gave it to him to pay for methamphetamine.
The
jury rejected Gutierrez’s story and found him guilty of counts 1, 3, 4, 5,
and 6. Following the court’s
instructions, it returned no verdict on count 2 because it was a lesser
offense included in count 1. The
jury also found true the firearm allegations for counts 1 and 6. The court found true two of the
prior-prison-term allegations and the prior-strike allegation.
After
the verdict, Gutierrez filed a petition for the disclosure of identifying juror
information. The petition alleged that a
juror fell asleep while evidence was being presented. Gutierrez stated in a declaration that he saw
juror number nine “‘drop off’†and then wake up. He passed a note to defense counsel, but
counsel did nothing. Gutierrez wished to
contact the juror for the purpose of gathering evidence to develop a motion for
a new trial based on juror misconduct.
The
court heard arguments on the petition.
The prosecutor stated that he also recalled a juror who closed her eyes
from time to time, but he did not believe this was “anything substantial.†The court recalled a recent trial in which a
juror sometimes closed her eyes, but it was not certain whether it was
Gutierrez’s trial. The court took the
petition under submission. Later, it
issued a minute order denying the petition.
The order stated:
“The allegation of juror inattention
here is insufficient to raise any reasonable grounds for new trial. (People
v. Bradford (1997) 15 Cal.4th 1229, 1349.)
This petition causes the court, upon reflection, to recall that the
juror in question (juror number 9) was observed by the court during trial to
occasionally briefly close her eyes during testimony, but she always promptly
opened them and did not appear sleepy or otherwise lacking in alertness.â€
For
count 1, attempted murder, the court imposed the upper term of nine years,
doubled to 18 years because it was a second strike, plus one year for each of
the two prior prison terms, plus 25 years to life for the firearm
enhancement. For count 3, burglary,
the court imposed a term of two years eight months, concurrent with
count 1. For count 4, being a
felon in possession of a firearm, the court imposed a term of six years, stayed
under section 654. For count 5,
receiving stolen property, the sentence was one year four months, to be served
consecutively. For count 6, assault
with a firearm, the sentence was two years, plus three years four months for
the firearm enhancement, to be served consecutively. The aggregate sentence was 26 years eight
months, plus 25 years to life.
DISCUSSION
I. Self-defense
instruction for being a felon in possession of a firearm
Gutierrez
argues that for count 4, possessing a firearm while a felon, the court was
obligated to instruct the jury sua sponte on temporary possession for purposes
of self-defense. The People argue that
the instruction need not have been given because there was no substantial
evidence to support it. The People also
argue that any error was harmless.
We
need not decide whether it was error not to give the instruction. Erroneous failure to give a jury instruction
warrants reversal only if the failure is prejudicial. (People
v. Breverman (1998) 19 Cal.4th 142, 178.)
This general rule applies to an erroneous failure to instruct on an
affirmative defense. (
1, 23.) The California Supreme Court has
applied the beyond-a-reasonable-doubt standard of harmless error review to this
type of error (ibid.), but has
suggested that the less-stringent reasonable-probability test might be
appropriate instead (People v. Salas
(2006) 37 Cal.4th 967, 984).
name="_ftnref4" title="">[4] For two reasons, we agree
with the People that any error in failing to give a self-defense instruction
for count 4 was harmless under any standard.
First,
the jury found Gutierrez guilty of the attempted murder of Brenda. This means the jury believed Gutierrez shot
Brenda with malice aforethought. To be
not guilty of being a felon in possession of a firearm under a theory of
self-defense, a felon must be in “temporary possession of [the] weapon for a
period no longer than that in which the necessity … to use it in
self-defense continues .…†(
24.) If the period during which
Gutierrez possessed the gun included the time when he tried to murder Brenda
with it, then it is exceedingly unlikely that the period was limited to a time
when he needed the gun for self-defense.
Since the jury believed Gutierrez committed attempted murder with the
gun, there is virtually no chance that, if instructed on the issue, it would
have found that the prosecution failed to prove he possessed it for a longer
time than he needed it for self-defense, assuming it would have found he ever
needed it for self-defense at all.
Second,
the jury found Gutierrez guilty of assaulting Raquinio with the gun. Again, it is extremely difficult to see how
he could have committed this offense if he was in possession of the gun only
for as long as he needed it for self-defense.
In
sum, it is obvious that the jury accepted the prosecution’s account in which
Gutierrez was the aggressor and rejected the defense account in which Raquinio
and Brenda were the aggressors. In light
of this, we are confident, beyond a reasonable doubt, that if the court had
given the instruction at issue, the jury would still have found Gutierrez
guilty of being a felon in possession of a firearm.
II. Petition
for juror information
Gutierrez
argues that the court erred when it denied his petition for identifying
information on juror number nine. We
disagree.
The
court’s decision on the petition was governed by Code of Civil Procedure
sections 206, subdivision (g), and 237, subdivision (b). Any person may petition the court for access
to sealed juror information. (Code Civ.
Proc., § 237, subd. (b).) This
includes a criminal defendant seeking the information for purposes of a new
trial motion after a jury verdict has been recorded. (Code Civ. Proc., § 206,
subd. (g).) The court must set the
matter for hearing if the petition and supporting declarations establish “a
prima facie showing of good cause†for release of the information, but must not
set the matter for hearing if “there is a showing on the record of facts that
establish a compelling interest against disclosure.†(Code Civ. Proc., § 237,
subd. (b).) If the court does not
set the matter for hearing, it must issue a minute order making express
findings that a prima facie showing of good cause to disclose was not made or
that a compelling interest against disclosure was established. (Ibid.) We review the trial court’s denial of the
petition for abuse of discretion. (
604.)
We
interpret the trial court’s ruling to mean that Gutierrez did not make a prima
facie showing of good cause. Juror
inattentiveness can amount to misconduct (People
v. Bradford, supra, 15 Cal.4th at p. 1349), but sporadic
inattentiveness generally does not justify a new trial. The Supreme Court has remarked: “We have observed that ‘[a]lthough implicitly
recognizing that juror inattentiveness may constitute misconduct, courts have
exhibited an understandable reluctance to overturn jury verdicts on the ground
of inattentiveness during trial .…
[The reported] cases uniformly decline to order a new trial in the
absence of convincing proof that the jurors were actually asleep during
material portions of the trial.
[Citations.]’†(
In Bradford, the Supreme Court
held that the trial court did not abuse its discretion in declining to hold an
evidentiary hearing on alleged juror inattentiveness because the record contained
no references to the juror’s inattentiveness over a “substantial period,†even
though the trial court acknowledged it had seen the juror sleeping on two
occasions. (Id. at pp. 1347-1348.)
The present case is comparable.
The court and parties agreed that juror number nine had been closing her
eyes, but, upon reflection, the court remembered that she had done so only for
brief periods and appeared alert. Under
the approach established in Bradford,
it was not an abuse of discretion under these circumstances to find that
Gutierrez failed to make a prima facie case of good cause to release the
information.
Gutierrez
doubts the reliability of the remarks in the trial court’s minute order, saying
there is no explanation of how the court decided juror number nine was not
inattentive for any substantial period despite its earlier remarks that it did
not remember in which trial it had seen a juror with her eyes closed. We have no reason here, however, to
second-guess findings the trial court made based on its own observations. There is nothing unusual about taking some
time fully to recall an incident after it has been brought to one’s
attention.
III. Sentencing
issues
The
court imposed a concurrent sentence for count 3, burglary, of two years
eight months, equal to one-third of the middle term, doubled because of the
prior strike. The parties agree that
this sentence should have been stayed under section 654 because the jury
instructions stated that the burglary count was based on Gutierrez’s intent to
commit murder or assault with a firearm when he entered the house. The prosecutor conceded at the sentencing
hearing that the burglary sentence should be stayed under these circumstances,
and the court said the concession was well-taken. We order the trial court to make the
necessary modification.
The
People also argue that the court erred when it imposed a sentence for
count 3 based on one-third of the middle term under section 1170.1,
subdivision (a), since this method of calculation is not applicable to a
stayed sentence. We agree. In People
v. Cantrell (2009) 175 Cal.App.4th 1161, the trial court imposed a sentence
of nine years on count 1 for burglary with enhancements, and a stayed
sentence on count 2 for attempted robbery.
The defendant argued that the stayed sentence should be based on
one-third of the middle term, which, with enhancements, would have been 16
months. The People argued that the
sentence for the stayed term should have been the low term, which, with
enhancements, would have been 32 months.
(Id. at p. 1164.) The Court of Appeal agreed with the
People. It held that “[t]he
one-third-the-midterm rule of section 1170.1, subdivision (a), only
applies to a consecutive sentence, not a sentence stayed under
section 654. If count 1 should
ever be invalidated, a stayed sentence of 32 months, rather than 16 months, on
count 2 will ensure that defendant’s punishment is commensurate with his
criminal liability. [Citation.] Furthermore, the imposition of a
‘consecutive’ and ‘stayed’ sentence would be meaningless because the stayed
sentence would only operate if the principal count were eliminated. Therefore, a stayed sentence cannot be
consecutive to a principal sentence.†(
In
this case, the court stated that it was imposing a term based on one-third of
the middle term concurrent to another
term, but section 1170.1, subdivision (a), is inapplicable to
concurrent sentences as well. It applies
only to consecutive sentences and neither to stayed sentences nor to concurrent
sentences. Since the sentence should
have been stayed—not consecutive and not concurrent—it could not be based on
one-third of the middle term.
The
People suggest that we should remand for resentencing on count 3;
Gutierrez does not argue to the contrary.
After trying to find a way to avoid this expense, we reluctantly
agree. The sentence closest to the one
the court imposed would be the low term of two years (§ 461, subd. (a)),
doubled to four years for the prior strike.
We cannot assume the court would have imposed the low term, however,
since it found aggravating factors and no mitigating factors when it sentenced
on count 1, which involved the same facts.
We also cannot assume the court would have imposed the middle term (four
years doubled to eight) or the high term (six years doubled to 12), since those
figures are much higher than the term the court actually imposed. The only solution is to remand to allow the
trial court to exercise its discretion in selecting a term.
Finally,
the People point out that the abstract of judgment incorrectly states that the
sentence imposed for count 3 was two years and was the upper term. This point is moot, since the sentence
actually pronounced also was erroneous.
The abstract will be corrected when the resentencing takes place.
The
court stated orally that the sentence for count 5, receiving stolen
property, was one year four months. The
abstract of judgment erroneously states that the sentence for count 5 is
two years four months. For the firearm
enhancement on count 6, the court stated that the sentence was three years
four months. The abstract of judgment
erroneously states that the sentence for that enhancement is two years four
months. The two errors cancel each other
out, but the abstract still should be correct.
We will order the trial court to amend it.
DISPOSITION
The
sentence on count 3 is reversed and the case remanded for resentencing on
that count. Specifically, the trial
court must determine whether the doubled lower, middle, or upper term applies,
and must stay the term it selects. In
addition, the abstract of judgment must be amended to show that the sentence
for count 5 is one year four months, and the sentence for the
section 12022.5, subdivision (a)(1), firearm enhancement on
count 6 is three years four months.
The trial court will forward the corrected abstract of judgment to the
proper correctional authorities. The
judgment is affirmed in all other respects.
_____________________
Wiseman,
Acting P.J.
WE CONCUR:
_____________________
Levy,
J.
_____________________
Detjen,
J.
name="_ftn1" title=""> [1]Subsequent statutory references
are to the Penal Code unless otherwise stated.
name="_ftn2" title=""> [2]This statute now appears at
section 29800, subdivision (a).
