Filed 8/3/26 P. v. Gutierrez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B349665
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA130374)
v.
VALENTINO GUTIERREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Joan M. Chrostek, Judge. Affirmed.
James M. Crawford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, and Julie A. Harris, Deputy Attorney
General, for Plaintiff and Respondent.
******
Valentino Gutierrez (defendant) appeals from the trial
court’s judgment executing a previously imposed but suspended
upper-term prison sentence of three years. Defendant argues
that the upper-term sentence was unlawful because the People
neither pled nor proved any aggravating circumstance justifying
the upper term. This argument ignores the record, which shows
that the People pled, and defendant admitted, an aggravating
circumstance. We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On May 9, 2022, defendant got into an argument with his
neighbors, left the scene, and returned with a shotgun, which he
proceeded to point at them.
II. Procedural Background
A. Charging, plea, and initial sentencing
Because defendant had previously sustained convictions in
1992 for soliciting murder (Pen. Code, § 653f, subd. (b)),1 in 1995
for being an accessory after the fact (§ 32), and in 1997 for
robbery (§ 211), the People charged defendant with (1) being a
felon in possession of a firearm (§ 29800, subd. (a)(1)), and (2)
unlawful possession of ammunition (§ 30305, subd. (a)(1)). The
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
People further alleged that the 1992 and 1997 convictions
constituted “strikes” within the meaning of our Three Strikes
Law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)), and that
defendant “has served a prior term in prison and county jail . . .
within the meaning of California Rules of Court Rule 4.421(b)(3).”
In September 2024, defendant entered a no contest plea to
the felon in possession charge and “admit[ted the] allegation that
he has served a prior term in prison and county jail . . . within
the meaning of California Rule of Court Rule 4.421(b)(3).” The
court placed defendant on two years of formal probation,
including 365 days in the county jail. The People dismissed the
ammunition charge and the strike allegations. At the plea
colloquy, defendant was explicitly advised that, in light of his
plea and admission to the prior prison term allegation, he could
be “sent to state prison for up to three years” if he violated the
terms of his probation.
B. First violation of probation
On August 13, 2025, defendant admitted violating the
terms of his probation. The court imposed but suspended
execution of an upper-term three-year sentence, and placed
defendant on probation with a requirement that he attend the
New Beginnings program.
C. Second violation of probation and execution of
sentence
After defendant was transported to New Beginnings but
walked out without enrolling, the trial court at an October 6,
2025 hearing found defendant to be in violation of the terms of
his probation. The court then lifted the suspended execution of
the previously imposed three-year sentence, and sentenced
defendant to three years in prison.
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D. Appeal
Defendant timely filed this appeal.
DISCUSSION
Defendant argues that the trial court erred in imposing an
upper-term sentence without requiring the People to allege and
prove an aggravating circumstance. We reject this argument.
On or after January 1, 2022, a trial court is permitted to
impose an upper-term sentence for any crime with a sentencing
triad only if certain aggravating factors—including, as pertinent
here, those enumerated in California Rules of Court, rule
4.421(b)—are (1) pled in the charging document, and (2) either (a)
proven beyond a reasonable doubt to a jury or to a judge in a
court trial, or (b) stipulated to by the defendant. (§ 1170, subd.
(b)(2)-(3); People v. Lynch (2024) 16 Cal.5th 730, 748; People v.
Gonzalez (2026) 118 Cal.App.5th 926, 929-930.)
The trial court complied with this statutory mandate in
this case. The information explicitly charged defendant with the
aggravating factor, set forth in California Rules of Court, rule
4.421(b)(3), of having “served a prior term in prison or county
jail,” and defendant explicitly admitted that this allegation was
true during his plea colloquy.
There was accordingly no error, and we affirm.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, P. J.
HOFFSTADT
We concur:
_________________________, J.
MOOR
_________________________, J.
KIM (D.)
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