P. v. Gutierrez
Appellant Joseph Anthony Gutierrez appeals from a judgment entered after a jury convicted him of one count of second degree murder (Pen. Code, § 187, subd. (a))[1] and found true the allegation that he personally used and intentionally discharged a firearm that caused great bodily injury and death (§ 12022.53, subds. (b), (c), and (d)). The trial court sentenced appellant to a term of 40 years to life in prison, consisting of 15 years to life for the murder, plus 25 years to life for the firearm enhancement found true pursuant to section 12022.53, subdivision (d). The enhancements found true within the meaning of subdivisions (b) and (c) were stayed pursuant to section 654. The court awarded appellant 779 days of actual custody credit.
Appellant contends (1) the trial court erred in excluding evidence concerning the state of mind of the deceased, (2) the additional term of 25 years to life imposed under section 12022.53, subdivision (d) constituted double jeopardy, and (3) he is entitled to an additional day of custody credit. We modify the abstract of judgment to reflect an additional day of custody credit, but otherwise affirm the judgment.
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