P. v. Gutierrez
On April 25, 2008, a jury found appellant Luis Alberto Gutierrez (Gutierrez) guilty of one count of second degree robbery (Pen. Code, 211)[1]and found the allegation that he personally used a firearm during the commission of the robbery to be true. ( 12022.53, subd. (b).)[2] The trial court sentenced Gutierrez to the high term of five years for the robbery, plus a 10-year consecutive term pursuant to section 12022.53, subd. (b), and a two-year consecutive term pursuant to section 12022.1, for a total term of 17 years.Gutierrez appeals, contending the trial court erred by: (1) finding the victim unavailable and then allowing use of his preliminary hearing testimony at trial; (2) excluding a late-found witnesss testimony; and (3) admitting the unavailable victims statement to one of the police officers in violation of Gutierrezs rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution. Court conclude the trial court committed harmless error in admitting the victims testimonial hearsay in violation of the Confrontation Clause and determine his other contentions lack merit. Court therefore affirm the judgment.
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