Opinion
F075773
12-17-2018
THE PEOPLE, Plaintiff and Appellant, v. JOHNNY GABRIEL GUTIERREZ, Defendant and Appellant.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. VCF160215B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
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INTRODUCTION
Appellant Johnny Gabriel Gutierrez was convicted in 2007 of two counts of assault by means of force likely to cause great bodily injury, with great bodily injury and gang enhancements. He was sentenced to 27 years in prison.
In 2017, appellant filed a petition in the Superior Court of Tulare County for resentencing and argued the court improperly imposed the gang and great bodily injury enhancements pursuant to People v. Le (2015) 61 Cal.4th 416 (Le). The superior court denied his petition.
As we will explain, we remand the matter for resentencing pursuant to Le and Penal Code section 1170.1, subdivision (g), and correction of the abstract of judgment.
All further statutory citations are to the Penal Code unless otherwise indicated.
FACTS
As noted by appellate counsel, appellant's convictions were affirmed by this court. We take judicial notice of the record and this court's unpublished opinion in People v. Johnny Gabriel Gutierrez (July 22, 2008, F052787) [nonpub. opn.], from which we take the facts and procedural history leading to the petition that appellant filed in the instant case.
"On February 25, 2006, H.J. and his friend J.O. attended a birthday party for H.J.'s nine-year-old nephew. The party was held at [the home of] Maria J.'s (Maria), H.J.'s sister ... located in the territory of a regional subset of the Norteno gang called the Varrios Farmas Catorce (VFC.) The VFC identify themselves with the color red. J.O. wore a blue checkered shirt to the party. J.O. testified he is not in the Norteno's rival gang, the Sureno gang, but is aware that the Surenos identify with the color blue.
"While eating in his sister's open-door garage with J.O. and three or four other friends, H.J. noticed a grown man with a red handkerchief wrapped around his hand. This man went in and out of a neighbor's house while talking on a telephone and looking toward Maria's house. After this man talked on the phone, 10-12 more men arrived in front of the neighbor's house. Maria saw one man at this house and then saw more men slowly start to arrive. The men had red rags and were drinking and looking toward her house. She knew the red rags signified the Nortenos because red is 'all over the place' in Farmersville.
"At around 7:15 p.m., J.O. stepped out of the garage toward the driveway to answer a cell phone call. H.J. went into the house to change. J.O. testified that just as he went out to answer the phone, he was attacked. He fell down and 'covered up' until the attack stopped. When H.J. came out of the house, he saw about four males kicking and hitting J.O., who was in a fetal position. H.J. recognized one of the assailants as Michael Herrera, whom Farmersville Police Officer Mosqueda identified as being a known member of the VFC and who had been seen associating with appellant numerous times. H.J. pulled one of the assailants off of J.O., turned halfway around, was struck in the head by an iron folding chair, and fainted.
"Maria testified that around 7:15 p.m., one of H.J.'s friends came into the house and said, ' "Call the police, they are fighting, they are fighting." ' When Maria went outside, she saw a group of about 10 men fighting. They were all wearing red, which indicated they were Nortenos. Four men were attacking J.O. with their feet and hands. Maria saw appellant, James Sanchez, and a third assailant attacking H.J., who was on the floor, bleeding. The two other assailants ran off, leaving appellant, who continued to attack H.J. Appellant kicked and stomped on H.J.'s head. Maria recognized appellant because he used to associate with another one of her brothers and used to come by her family's home. She knew he was a Norteno. She noticed appellant had a red bandanna [sic].
"Maria saw appellant stomp on H.J.'s head about three times. She yelled at him, addressed him by name, and asked what he was doing. Appellant looked at her with an apparent expression of shock, stopped stomping on H.J.'s head, and fled.
"The next day, Farmersville Police Officer McGuire went to appellant's house and found him standing in the front yard with a large group of northern gang members, including James Sanchez. McGuire knew these two men from a previous arrest in 2005 for spray-painting gang indicia on a Minute-Mart wall. McGuire arrested appellant and Sanchez for their alleged involvement in the incident the night before. McGuire confiscated appellant's red shoelaces, a red bandanna [sic] folded in his right front pocket, and a red baseball cap with Norteno gang symbols in the inside label. McGuire confiscated Sanchez's red shoelaces, baseball cap with a Norteno gang symbol embroidered on the front, and a belt with 'F' engraved on the buckle standing for 'Farmas,' a shortened way of saying VFC.
"Maria subsequently positively identified appellant in a photographic lineup as the man who attacked her brother.
"At trial, Detective Sanchez, a gang expert, testified concerning the VFC gang. He opined that VFC is a criminal street gang, and that in his expert opinion, the charged offenses against appellant were committed in association with and for the benefit of the VFC gang.
"Appellant testified that he is a VFC member, views anybody in a rival gang as an enemy, and associates with James Sanchez. However, he denied assaulting H.J. for gang-related reasons. The night of the incident, appellant was 'drunk, relaxed, [and] swaggering a little bit' while walking around for 45 minutes, trying to find a party. He heard yelling at Maria's house, walked around the block again, and then saw a physical fight at the residence. He jogged over, not knowing it was Maria's house, because he thought one of his friends might be involved in the altercation. Appellant was hit, started hitting the closest person to him, whom he assumed had hit him, but never kicked or stomped anyone. Appellant denied that any of his gang members were there or that he fought to promote the gang effort." (People v. Johnny Gabriel Gutierrez, supra, F052787 at pp. 1-2.) Charges , convictions, and sentence
The information charged appellant with count 1, assault by means of force likely to produce great bodily injury on H.J. (former § 245, subd. (a)(1)), with enhancements for personal infliction of great bodily injury on H.J. (§ 12022.7, subd. (a)); that he committed the offense for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(1)(A); and another gang enhancement alleged under section 186.22, subdivision (b)(1)(C) based on the commission of a "violent felony."
In count 2, appellant was charged with assault by means of force likely to produce great bodily injury on J.O., with a gang enhancement alleged under section 186.22, subdivision(b)(1)(A). It was also alleged that appellant had one prior serious felony enhancement and one prior strike conviction.
On November 27, 2006, appellant's jury trial began.
On November 29, 2006, appellant was convicted of counts 1 and 2. The jury found the great bodily injury enhancement true as to count 1, and the gang enhancements true for both counts.
"In a bifurcated proceeding, appellant waived a jury trial on allegations of prior serious felony convictions for purposes of section 667, subdivision (a) and the 'three strikes law' (§ 1170.12). The trial court found the prior conviction allegations to be true." (People v. Johnny Gabriel Gutierrez, supra, F052787 at p. 1.)
On March 29, 2007, the court denied probation and imposed the midterm of three years for count 1, doubled to six years as the second strike term; plus consecutive terms of five years for the prior serious felony enhancement, three years for the section 12022.7 great bodily injury enhancement, and 10 years for the section 186.22, subdivision (b)(1)(C) enhancement. As to count 2, the court imposed a consecutive sentence (based on one-third the midterms) of two years, plus one year for the section 186.22, subdivision (b)(1)(A) gang enhancement; for an aggregate term of 27 years in prison.
As we explain below, appellant filed a petition in the superior court and raised several issues, including the claim that his sentence violated section 654 because the court imposed terms for both the substantive offense of assault with force likely to produce great bodily injury and the section 12022.7 enhancement for the personal infliction of great bodily injury. However, a sentence for assault by force likely to produce great bodily injury "with an enhancement under ... section 12022.7 is not double punishment for the same offense in violation of ... section 654." (People v. Parrish (1985) 170 Cal.App.3d 336, 344, fn. omitted; People v. Lamb (2017) 8 Cal.App.5th 137, 143.)
On July 22, 2008, this court affirmed appellant's convictions and rejected his appellate contention that the gang enhancements were not supported by substantial evidence.
APPELLANT'S PETITION
The instant appeal is based on a petition that appellant filed in pro. per., on or about April 7, 2017, in the Superior Court of Tulare County "for modification of sentence and to correct illegal enhancements."
Among the issues raised by appellant was the claim that the court improperly imposed both the great bodily injury and gang enhancements pursuant to Le, supra, 61 Cal.4th 416. Appellant requested the superior court recall the matter for "corrective resentencing" and "a possible immediate release on state parole." Denial of petition
On May 1, 2017, the superior court denied appellant's petition without comment. On June 2, 2017, appellant filed a timely notice of appeal. Appellant briefing
On September 11, 2017, appellate counsel filed a brief with this court that summarized the facts with citations to the record, raised no issues, and asked this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) On the same day, we invited appellant to submit additional briefing. He failed to do so
On May 9, 2018, appellate counsel filed a request with this court for leave to file a supplemental brief. Counsel advised this court that he had recently received certain documents which indicated that appellant's sentence was erroneous and requested to file a supplemental brief that was included with his request.
On May 14, 2018, this court granted appellant's request and filed his opening brief. We ordered the previously-filed Wende brief stricken and set forth a briefing schedule. On September 12, 2018, the People filed the respondent's brief.
DISCUSSION
Appellant claimed in his petition that the court improperly imposed the enhancements contrary to the California Supreme Court's ruling in Le. The parties now concede that the court erroneously imposed both the great bodily injury and gang enhancements pursuant to section 1170.1, subdivision (g). For guidance on resentencing, we will review the applicable sentencing provisions. I. Rodriguez and Le
In order to address the imposition of the enhancements in this case, we must review a series of cases that have interpreted section 1170.1, beginning with People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez). In that case, the defendant was convicted of three counts of assault with a firearm, for three separate victims. As to each count, the jury found the defendant personally used a firearm under section 12022.5, subdivision (a); and he committed a "violent felony," as defined by section 667.5, subdivision (c), to benefit a criminal street gang under section 186.22, subdivision (b)(1)(C). The defendant was sentenced to terms for both the personal use and gang enhancements. (Rodriguez, supra, at p. 505.)
Rodriguez reversed the defendant's sentence based on section 1170.1, subdivision (f), which provides:
"When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury."
Rodriguez held the defendant received two enhancements for his use of a firearm against each victim: one enhancement under section 12022.5, subdivision (a), and another enhancement under section 186.22, subdivision (b)(1)(C). (Rodriguez, supra, 47 Cal.4th at p. 508.) "Because two different sentence enhancements were imposed for defendant's firearm use in each crime, section 1170.1[,] subdivision (f) requires that 'only the greatest of those enhancements' be imposed." (Id. at pp. 508-509.)
Rodriguez explained the "defendant's firearm use resulted in additional punishment not only under section 12022.5's subdivision (a) (providing for additional punishment for personal use of a firearm) but also under section 186.22's subdivision (b)(1)(C), for committing a violent felony as defined in section 667.5, subdivision (c)(8) (by personal use of firearm) to benefit a criminal street gang. Because the firearm use was punished under two different sentence enhancement provisions, each pertaining to firearm use, section 1170.1's subdivision (f) requires imposition of 'only the greatest of those enhancements' with respect to each offense." (Rodriguez, supra, 47 Cal.4th at p. 509.) Rodriguez remanded the matter to the trial court to restructure the sentence so as not to violate section 1170.1, subdivision (f).
In People v. Le, supra, 61 Cal.4th 416, the court addressed a similar situation where the defendant was convicted of assault with a semiautomatic firearm (§ 245, subd. (b)), with personal use of a firearm (§ 12022.5, subd. (a)(1)), and the gang enhancement was alleged and found true pursuant to section 186.22, subdivision (b)(1). At sentencing, the court said it could not impose terms for both the personal use and gang enhancements under Rodriguez, "because the jury's findings made defendant's assault a violent felony under section 667 .5, thereby making the applicable enhancement the same 10-year term under 186.22, subdivision (b)(1)(C) that was at issue in Rodriguez. Accordingly, the court imposed the 10-year term for that [gang] enhancement, but stayed any sentence enhancement [imposed] under section 12022.5, subdivision (a)...." (Le, supra, 61 Cal.4th at pp. 421-422, italics added.)
Le addressed the People's appellate claim that the sentencing court could have imposed an elevated term for the gang enhancement, plus the personal use enhancement, because the substantive offense was also a serious felony without reference to the defendant's use of a deadly weapon. Le rejected this argument because the substantive offense was defined as a serious felony only because of the defendant's use of a firearm. (Le, supra, 61 Cal.4th at p. 425.)
Le held that "as was the case in Rodriguez,...[the defendant's] section 186.22 gang enhancement ... regardless of whether it qualified as a serious or violent felony under subdivision (b)(1)(B) or (b)(1)(C), is an enhancement 'imposed for being armed with or using ... a firearm.' (§ 1170.1, subd. (f).) Under section 1170.1, subdivision (f), the underlying felony, based on section 245, subdivision (b), could not be enhanced for use of a firearm both under section 12022.5, subdivision (a), and section 186.22, subdivision (b)(1). Rather, section 1170.1 required that only the greater of the two enhancements - in this case, the enhancement under section 12022.5 - could be imposed." (Le, supra, 61 Cal.4th at p. 425.)
Le concluded that, as in Rodriguez, "because both [the personal use and gang] enhancements again depend on defendant's firearm use, we conclude that section 1170.1, subdivision (f) bars the imposition of both enhancements." (Le, supra, 61 Cal.4th at p. 420.) Le affirmed the sentencing court's decision to stay the personal use enhancement pursuant to section 654. (Le, supra, 61 Cal.4th at p. 429.) II. Gonzalez
In People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez), the court applied Rodriguez to a situation identical to the instant case. The defendant in Gonzalez was convicted of one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and the jury found he personally inflicted great bodily injury on a person other than an accomplice in the commission of a felony (§ 12022.7, subd. (a)); and that the assault was a "violent felony" committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The defendant was sentenced to the midterm of three years for the assault, plus three years for the great bodily injury enhancement, and 10 years for the defendant's commission of a violent felony to benefit a criminal street gang. (Id. at p. 1327.)
Gonzalez held that, based on Rodriguez, the defendant could not be sentenced for both the great bodily injury and gang enhancement, since the elevated term for the gang enhancement was imposed because he committed a "violent" felony, and the assault charge was only a "violent" felony because of the infliction of great bodily injury, based on the applicable statutory definitions.
In reaching this conclusion, Gonzalez interpreted section 1170.1, subdivision (g), which states:
"When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm." (Italics added.)
Gonzalez explained that subdivision (g) was similar to the sentencing limitation interpreted in Rodriguez:
"Section 12022.7 sets forth various sentence enhancements for the infliction of great bodily injury while committing or attempting a felony. Subdivision (a), the relevant provision in this case, provides: '(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.' (§ 12022.7, subd. (a).)
"Section 186.22, subdivision (b)(1), specifies that a felony 'committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members' is subject to a sentence enhancement. Subparagraphs (A) through (C) set forth the actual enhancements: subparagraph (A) provides for a two, three, or four-year enhancement unless subparagraphs (B) or (C) applies; subparagraph (B) provides for a five-year enhancement if the underlying felony is a 'serious felony,' as defined by section 1192.7, subdivision (c); and subparagraph (C), the relevant provision here, provides for a 10-year enhancement if the underlying felony is a 'violent felony,' as defined by section 667.5, subdivision (c).
"Section 667.5, subdivision (c), in turn, lists a number of offenses which qualify as 'violent' felonies. As relevant here, a 'violent felony' includes '[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 ....' (§ 667.5, subd. (c)(8).)
"Here, [the defendant's] infliction of great bodily injury on the victim had two consequences as it pertained to sentence enhancements. First, it qualified him for a three-year enhancement under section 12022 .7, subdivision (a). Second, it turned the underlying offense of assault into a 'violent felony' as defined by section 667.5, subdivision (c), which qualified [the defendant] for the 10-year (and not the standard two-, three-, or four-year) gang enhancement under section 186.22, subdivision (b)(1)(C)." (Gonzalez, supra, 178 Cal.App.4th at pp. 1329-1330, italics added.)
Gonzalez held that Rodriguez was "persuasive and squarely applicable" to the interpretation of section 1170.1, subdivision (g), dealing with the great bodily injury and gang enhancements.
"Similar to subdivision (f) of section 1170.1, subdivision (g) of the same section prohibits the imposition of more than one enhancement 'for the infliction of great bodily injury on the same victim in the commission of a single offense ....' Here, [the defendant's] infliction of great bodily injury on a single victim subjected him to a three-year enhancement under section 12022.7, subdivision (a). The same infliction of great bodily injury on the same victim also turned [the defendant's] underlying assault offense into a 'violent felony' under section 667.5, which subjected him to a 10-year enhancement under section 186.22, subdivision (b)(1)(C). In other words, the trial court imposed two enhancements for [the defendant's] infliction of
great bodily injury on the same victim in the commission of a single offense. Under the reasoning articulated in Rodriguez, we conclude the trial court should have imposed only the greatest of those enhancements as required by section 1170.1, subdivision (g). [Citation.]" (Gonzalez, supra, 178 Cal.App.4th at pp. 1331-1332.)
III. Appellant's Sentence
As set forth above, appellant was charged with two counts of assault with force likely to produce great bodily injury, based on separate victims.
As relevant to this issue, the information alleged as to count 1, a great bodily injury enhancement; a gang enhancement under section 186.22, subdivision (b)(1)(A); and a second gang enhancement for commission of a "violent felony" under section 186.22, subdivision (b)(1)(C).
As to count 2, the information only alleged one gang enhancement under section 186.22, subdivision (b)(1)(A), without a great bodily injury enhancement for that offense.
The jury found appellant guilty of both counts, with the great bodily injury and gang enhancements true. The verdict forms state the jury found the gang enhancements true as alleged in section 186.22, subdivision (b), without further specification.
Section 186.22, subdivision (b) provides the following terms for gang enhancements: two, three, or four years, if the substantive offense is not a serious or violent felony (§ 186.22, subd. (b)(1)(A)); five years, if the substantive offense is a serious felony (§ 186.22, subd. (b)(1)(B)); or 10 years if the substantive offense is a violent felony (§ 186.22, subd. (b)(1)(C)).
At the sentencing hearing, the court sentenced appellant to the second strike term of six years for count 1, plus five years for the prior serious felony enhancement and three years for the section 12022.7 great bodily injury enhancement. The court also imposed a consecutive term of 10 years for the gang enhancement in count 1.
According to the reporter's transcript, the court specifically stated that the 10-year term for the gang enhancement for count I was being imposed pursuant to section 186.22, subdivision (b)(1)(C). The minute order similarly states the 10-year gang enhancement was imposed pursuant to subdivision (b)(1)(C).
The court's pronouncement of sentence and the minute order are consistent with the information, that alleged the gang enhancement for count 1 was for a "violent felony" under subdivision (b)(1)(C), since appellant's commission of great bodily injury elevated count 1 to a violent felony and thus supported imposition of the elevated 10-year term for the gang enhancement attached to that conviction.
The minute order for the sentencing hearing states the one-year term for the gang enhancement for count 2 was imposed under section 186.22, subdivision (b)(1)(A), for an offense that was not a serious or violent felony. The sentence was consistent with the information because it did not allege a great bodily injury enhancement for count 2, and the offense was not serious or violent. The minute order is also consistent with the court's statements at the sentencing hearing, that the gang enhancement for count 2 was one year, representing one-third the midterm of three years for a nonserious/nonviolent felony under subdivision (b)(1)(A).
However, the abstract of judgment erroneously states the oneyear term for the gang enhancement for count 2 was imposed under section 186.22, subdivision "(b)(1)(C)." On remand, the abstract must be corrected.
IV. Analysis
In this case, as in Gonzalez, defendant's infliction of great bodily injury had two consequences: He received a three-year term for the great bodily injury enhancement for count 1; and it turned count 1's assault offense into a violent felony as defined by section 667.5, subdivision (c)(8), which qualified appellant for the 10-year gang enhancement for the commission of a violent felony under section 186.22, subdivision (b)(1)(C). (Gonzalez, supra, 178 Cal.App.4th at pp. 1329-1330.)
However, section 1170.1, subdivision (g) prohibits the imposition of more than one enhancement "for the infliction of great bodily injury on the same victim in the commission of a single offense...." As in Gonzalez, appellant's infliction of great bodily injury on the victim in count 1 "subjected him to a three-year enhancement under section 12022.7, subdivision (a). The same infliction of great bodily injury on the same victim also turned [the defendant's] underlying assault offense into a 'violent felony' under section 667.5, which subjected him to a 10-year enhancement under section 186.22, subdivision (b)(1)(C). In other words, the trial court imposed two enhancements for [the defendant's] infliction of great bodily injury on the same victim in the commission of a single offense." (Gonzalez, supra, 178 Cal.App.4th at pp. 1331-1332, italics in original.)
Accordingly, the matter must be remanded for resentencing on the enhancements for count 1, consistent with section 1170.1, subdivision (g), as explained in Rodriguez, Le, and Gonzalez.
Appellant's petition to the superior court also asserted he was entitled to a "a 'youthful offender parole hearing' " under Miller v. Alabama (2012) 567 U.S. 460 and Senate Bills 260 and 261, which added section 3051. On remand, appellant may raise the issue of whether he qualifies for a hearing pursuant to section 3051. We express no opinion on the merits of such a claim. --------
DISPOSITION
Appellant's sentence is vacated, and the matter is remanded for resentencing pursuant to section 1170.1, subdivision (g). On remand, the court must correct the abstract of judgment to reflect that the gang enhancement for count 2 was imposed pursuant to section 186.22, subdivision (b)(1)(A). In all other respects, the judgment is affirmed.