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People v. Gutierrez

California Court of Appeals, Second District, First Division
Sep 18, 2008
No. B199681 (Cal. Ct. App. Sep. 18, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. GA066435, David S. Milton, Judge.

Law Offices of James Koester and James Koester for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.


WEISBERG, J.

Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

SUMMARY

Appellant Alfred Gutierrez was charged in the second amended information and convicted by a jury of the crimes of corporal injury to a spouse or former cohabitant in violation of Penal Code section 273.5, subdivision (a) as alleged in count one, assault by means likely to cause great bodily injury in violation of section 245, subdivision (a)(1) as alleged in count two, and false imprisonment by violence in violation of section 236 as alleged in count three. In addition, allegations that Gutierrez personally inflicted great bodily injury under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e), and that he personally used a dangerous weapon, within the meaning of section 12022, subdivision (b)(1) were found true.

All further statutory references are to the Penal Code, unless otherwise stated.

Appellant was sentenced to state prison. For count one, he was sentenced to the upper term of four years, with an additional four years pursuant to section 12022.7, subdivision (e) and an additional one year pursuant to section 12022, subdivision (b)(1), for a total of nine years. For count two, he was sentenced to the upper term of four years, enhanced by four years pursuant to section 12022.7, subdivision (e), a total of eight years concurrent to the sentence in count one. For count three, he was sentenced to eight months consecutive to the sentence in count one. His total sentence was nine years and eight months.

Appellant contends that the trial court erred in its instruction to the jury on the weapon enhancement allegation, improperly imposed sentence on the infliction of great bodily injury enhancement allegation in count one, failed to properly define the term “cohabitant” within the meaning of section 273.5, and improperly imposed multiple sentences for a single criminal act.

We conclude that the trial court properly provided a definition of “cohabitant” and properly imposed multiple punishments, but we also conclude that the trial court erred in its instruction to the jury on the weapon enhancement allegation and improperly imposed a sentence enhancement for infliction of great bodily injury. We affirm the judgment but remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

The facts underlying appellant’s conviction relate to appellant’s brutal attack on Debra Rios on July 21, 2006. Rios was the primary witness for the People. Rios and Gutierrez had known one another for six years. They were romantically involved and lived together in Gutierrez’s home for the first three years of their relationship. They broke up about three years before the events of July 21, 2006 when Gutierrez began dating someone else. They remained friendly, however, and saw one another intermittently and continued to share ownership of two dogs. Rios often took care of all of Gutierrez’s dogs when he was out of town or needed her help.

Gutierrez owned and operated an automobile repair and body shop in Pasadena. Gutierrez also lived there in a dwelling behind the business. The location was surrounded by a six to eight feet high fence that had small spikes on top. At the front of the business, there was a heavy rolling metal gate within which was a smaller door. A vertical rolling door separated the business and residential areas. Rios testified that Gutierrez always kept the gate and doors locked so his dogs would not escape.

Rios went to see Gutierrez on July 21 at his request. He asked her to come over because he was having problems and wanted someone to talk to. Gutierrez was also doing some work on Rios’s car, and the two of them were selling another car together.

Gutierrez was waiting for Rios when she arrived at about 9:00 a.m. He let her in through the small door and locked it behind her. Gutierrez had been drinking vodka, but he was friendly at first. Rios helped him work on her car. At about 11:00, someone knocked on the front gate. Gutierrez told Rios to go back to the residential area. Rios did not see who was at the gate.

While she waited in the back, Rios began to feed the dogs, a task she often performed. Gutierrez came back within an hour. His whole demeanor had changed. Inexplicably, he became angry at her for feeding the dogs, saying she confused them. He grabbed her hair, and began hitting and kicking her repeatedly. The more Rios tried to fight back, the angrier Gutierrez became. He hit her with his hands over her entire body, but mainly on the top of her head, and he kicked out one of her back teeth. Rios yelled and tried to get away, but Gutierrez told her no one would hear her.

At one point, Gutierrez grabbed a container of lacquer thinner, poured it over Rios and began to flick lighted matches at her. Rios felt a burning sensation; she did not know if she was on fire or if the burning sensation was from the chemicals. She removed her clothes and rinsed off in a small wading pool on the premises. Gutierrez then grabbed a razor or box-cutter and began swiping at Rios. He sliced open a six-inch gash on her left thigh and cut her forearms when she raised them to protect her face. He told Rios “I should fucking cut your ass up and put you in -- I should cut you up in pieces and put you in a fucking truck.” Rios did not try to escape. She knew Gutierrez kept the gates locked and, from past experience, knew she would not be able to open the gate by herself. Rios knew she could not escape and was afraid Gutierrez would kill her. She tried to escape his blows by hiding under cars and other things when possible, but he would grab her and drag her back out.

Eventually, Gutierrez began to calm down and stopped beating Rios. He allowed her to smoke a cigarette, and the two of them went inside and got onto Gutierrez’s bed. Within minutes, Gutierrez fell asleep. Rios ran outside and grabbed clothing from her car. She then climbed on top of another car and onto the wall and escaped by jumping over. At about 6:30 or 7:00 p.m., two men working at a business next door were surprised to see Rios walking toward them. She was naked and holding clothes. She asked them to call an ambulance. One of the men testified at trial. He said Rios was “pretty shaken up.” She looked “pretty beat up,” as though “she had been physically abused.” Rios asked the men to “keep it down” because she was afraid Gutierrez would find her.

An ambulance took Rios to the hospital, where police photographed her injuries. Rios’s daughter also made a videotape of her injuries two weeks after the attack. The photographs and videotape were received in evidence. As a result of Gutierrez’s assault, Rios suffered numerous injuries, including fractured ribs, a badly split lip, skull and nose fractures, razor slashes, a lost tooth, two black eyes, and severe bruising all over her body.

Pasadena police officer Peinado was instructed to arrest Gutierrez. The police went to the property and knocked loudly in an attempt to gain entry and get Gutierrez to come out. There was no response. Peinado kept surveillance over the location for three days before Gutierrez finally emerged. The officer observed no injuries to Gutierrez, although Gutierrez did complain of back pain.

In his defense, Gutierrez claimed he and Rios never lived together during the period of their romantic relationship, although she had spent nights with him. He also claimed that Rios was the aggressor. He testified that he drank only beer while Rios smoked marijuana. Gutierrez testified that, at one point, Rios went “ballistic,” called him a “traitor” for leaving her for another woman and began to hit him with a stick. When Gutierrez tried to restrain Rios, they fell and tumbled across the floor. Rios grabbed some thinner and splashed it on herself. He told her to wash it off, which she did and then left. He never prevented Rios from leaving. She could have walked out the gate or the small door, as both remained open while he and Rios struggled. He was not surprised to see Rios climb naked over the wall; he had seen her go over the wall in the past. He did not cut her or see any slashes on her leg. Rios sustained her injuries while they were tumbling on the floor. He never intentionally tried to hurt her.

DISCUSSION

1. The trial court erred by failing to instruct on personal use of a deadly weapon.

Appellant was charged in count one of the second amended information with corporal injury to a cohabitant in violation of section 273.5, subdivision (a). It was further alleged that he personally used a deadly or dangerous weapon in the commission of the offense pursuant to section 12022, subdivision (b)(1). The jury found this allegation true, and the trial court imposed a one-year enhancement pursuant to section 12022, subdivision (b)(1). Appellant contends that failure to properly instruct on the elements of the enhancement requires that the one-year enhancement be set aside. The People contend that appellant waived any claim of error and, even if not waived, the error was harmless.

There is no dispute that the trial court failed to properly instruct. Instead of giving the required instruction, which in this instance was CALCRIM No. 3145, the trial court instructed the jury using CALCRIM No. 3130, which defined the elements of the enhancement allegation of section 12022.3 (armed with a deadly weapon in the commission or attempted commission of specified sexual assaults). The trial court’s instruction told the jury:

CALCRIM No. 3145 provides: “If you find the defendant guilty of the crime charged . . ., you must then decide whether the People have proved the additional allegation that the defendant personally used a deadly weapon during the commission of that crime. [¶] A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. [¶] In deciding whether an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed . . . and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Someone personally uses a deadly or dangerous weapon if he or she intentionally does any of the following: [¶] 1. Displays the weapon in a menacing manner; [¶] 2. Hits someone with the weapon; [¶] or [¶] 3. Fires the weapon. [¶] . . . [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” (Emphasis in original.)

“If you find the defendant guilty of the crime charged in Count I, Spouse or Cohabitant Beating, you must then decide whether the People have proved the additional allegation that the defendant was personally armed with a deadly weapon, to wit, a razor, during the commission of that crime.

“A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.

“A person is armed with a deadly weapon when that person:

“1. Carries or has a deadly weapon available for use in either offense or defense;

“AND

“2. Knows that he is carrying the deadly weapon or has it available.

“The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.”

A necessary element of the enhancement allegation in count one is that the defendant “personally used” the weapon in the commission of the offense. It must be shown that the defendant intentionally either displayed the weapon in a menacing manner or actually struck the victim with the weapon in the commission of the underlying felony. (People v. Bland (1995) 10 Cal.4th 991, 996-998.) As the People concede, the trial court failed to provide the jury with such a definition.

Gutierrez’s trial counsel stated he had no objection to the proposed instructions. Generally, a defendant who agrees or fails to object to a proposed jury instruction forfeits the right to challenge the instruction on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326 [waiver found when defense counsel agreed to giving of instruction and raised no objection]; People v. Stone (2008) 160 Cal.App.4th 323, 331 [defendant waived claim of instructional error by failing to object].) Gutierrez asserts however, that failure to properly instruct affected his substantial rights and no objection was necessary to preserve the issue for appeal. We agree. The trial court has a suasponte duty to instruct the jury on the elements of an enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348].) Section 1259 provides: “[T]he appellate court may . . . review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” Failure to instruct on a necessary element of the enhancement affected appellant’s substantial rights.

This brings us to a discussion of whether the error was harmless. The People argue that the applicable standard is whether there is a reasonable probability that the outcome of defendant's trial would have been different had the trial court properly instructed the jury. (Cal. Const., art. VI, § 13, People v. Flood (1998) 18 Cal.4th 470, 490; People v. Watson (1956) 46 Cal. 2d 818, 836-837.) Appellant argues, relying on Flood, supra, and People v. Sengpadychith (2001) 26 Cal.4th 316, 327, that the correct standard is whether the appellate court can say, beyond a reasonable doubt, that the error did not contribute to the verdict. Appellant has the better of the argument here. Our Supreme Court has spoken on this issue: “[A] trial court’s failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision ‘increases the penalty for [the underlying] crime beyond the prescribed statutory maximum.’ [Citing Apprendi, supra, 530 U.S. at p. 490.] Such error is reversible under Chapman [(1967)] 386 U.S. [18] at page 24, unless it can be shown ‘beyond a reasonable doubt’ that the error did not contribute to the jury’s verdict.” (People v. Sengpadychith, supra, 26 Cal.4th at p. 326.)

“No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

In this instance, we find that the error in removing the “personal use” element of the enhancement from the jury’s consideration cannot be said, beyond a reasonable doubt, not to have contributed to the jury’s verdict. It is true that Rios testified that Gutierrez used the razor to slice open her thigh and forearms. Gutierrez, however, denied physical contact with Rios (except their “tumbling” when he tried to restrain her from hitting him) and denied cutting Rios or seeing any injury on her leg. Although the jury found true the allegation pursuant to section 12022.7, subdivision (a) that appellant personally inflicted great bodily injury on Rios, we cannot say that determination necessarily included a finding on the mechanism causing the injuries. No medical evidence was offered about the cause of Rios’s wounds.

On this record, we conclude that it cannot be shown beyond a reasonable doubt that the error did not contribute to the jury's verdict. The judgment is therefore reversed as to the sentence enhancement pursuant to section 12022, subdivision (b)(1).

2. Gutierrez was improperly sentenced on the enhancement pursuant to section 12022.7, subdivision (e).

There was confusion in the trial court as to the enhancement allegations. The People filed a second amended information on the first day of trial. That pleading charged appellant with the same three counts as in information filed on October 18, 2006 (the original information). In the original information, enhancements pursuant to sections 12022.7, subdivision (e) and 12022, subdivision (b)(1) were alleged in count one, enhancement pursuant to section 12022.7, subdivision (a) was alleged as to count two, and enhancement pursuant to section 12022, subdivision (b)(1) was alleged as to count three. In the second amended information, the People alleged the sections 12022.7, subdivision (e) and 12022, subdivision (b)(1) enhancements as to count one, and no enhancements were alleged as to counts two and three.

The record on appeal is silent whether there was a first amended information. The record is also silent whether the appellant was ever arraigned on the second amended information, which was filed on the first day of trial.

Prior to final argument, the trial court and the deputy district attorney discussed which enhancements were being alleged. The final decision was that the only allegations the People would pursue were the enhancements pursuant to sections 12022.7, subdivision (e) and 12022, subdivision (b)(1) in count one. The appellant’s trial counsel did not object. The jury was properly instructed on the elements of the section 12022.7, subdivision (e) enhancement allegation but was erroneously told by the trial court that it was alleged in count two rather than in count one. Likewise, the verdict form for count two erroneously included a finding on this allegation, but the verdict form for count one did not. The jury found the section 12022.7 allegation true in the place provided on the count two verdict form.

As discussed, supra, the trial court imposed a consecutive term of four years pursuant to the section 12022.7, subdivision (e) enhancement in count one. Appellant contends that the sentence was improper because the jury never made a finding on this enhancement in count one and the sentence must be set aside and the matter remanded to the trial court for resentencing. The People agree.

We agree as well. The sentence must be vacated and the matter remanded for resentencing as to counts one and two and in accord with the verdict of the jury.

3. Rios was properly deemed a “former cohabitant” under section 273.5.

As discussed, supra, Gutierrez was convicted in count one of violation of section 273.5, subdivision (a). That section provides, among other things, that any person who willfully inflicts a corporal injury that results in a traumatic condition upon a person who is his or her spouse, former spouse, cohabitant or former cohabitant, or the parent of his or her child, is guilty of a felony. Gutierrez maintains that he and Rios had ended the romantic aspect of their relationship and had not lived together for three years prior to the assault and, therefore, she can no longer be considered a “former cohabitant,” and is not among the class of individuals the Legislature intended to protect under section 273.5. We disagree.

The statute does not define the term cohabitant. However, that term has been broadly interpreted to refer to those “‘“living together in a substantial relationship -- one manifested, minimally, by permanence and sexual or amorous intimacy.”’” (People v. Taylor (2004) 118 Cal.App.4th 11, 18-19; People v. Ballard (1988) 203 Cal.App.3d 311, 317-319.) There can be no doubt the overriding purpose of section 273.5 is to deter domestic violence and to protect domestic partners and former partners from domestic abuse. (People v. Vega (1995) 33 Cal.App.4th 706, 710-711; People v. Mora (1996) 51 Cal.App.4th 1349, 1355.) Indeed, the statute was amended in 1999 to extend its reach to former spouses and former cohabitants, in recognition of the fact that a great deal of domestic violence occurs within the first two years of a couple’s separation, statistically the most dangerous period for such injuries. (See, e.g., Spier, Assem. Com. on Public Safety Hearing, Analysis of Sen. Bill No. 563 (1999-2000 Reg. Sess.) June 22, 1999.) In further recognition of the danger one may pose to a former spouse or cohabitant long after the cohabiting or intimate relationship has ended, section 273.5 mandates that a court sentencing a defendant convicted under subdivision (a) of the statute “shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years . . . .” (§ 273.5, subd. (i), italics added.)

The appropriate length of time for a restraining order depends on, among other things, the seriousness of the facts of the case, the probability of future violations, and the safety of the victim, and may be issued regardless of whether the defendant is sentenced to confinement. (§ 273.5, subd. (i).)

Apart from the length of time in which a victim of an assault under section 273.5 may invoke the protection of a restraining order, the Legislature chose not to set limits on the period of time a victim is considered a former cohabitant. We will not graft such a limitation on the statute. We recognize there are borderline situations in which it may be difficult for jurors to ascertain the existence of the requisite “significant relationship” necessary to establish “cohabitation.” However, once it is established that a couple cohabited -- that is, lived together in a substantial relationship manifested, minimally by permanence and sexual or amorous intimacy -- they are, from that point on, “former cohabitants” within the meaning of section 273.5, unless and until the Legislature says otherwise.

Even if we were inclined to limit the time period within which a victim could be deemed a former cohabitant under section 273.5, this would not be the case in which to do so. Gutierrez and Rios lived together -- as boyfriend and girlfriend -- for three years. Although they had ended their romantic relationship, they continued to see and confide in one another, as evidenced by Gutierrez’s request that Rios come over on July 21 to help him with some problems he was having. They also continued to share ownership of dogs, and Rios regularly cared for all of Gutierrez’s dogs when he was away. When someone knocked at the gate that morning, Gutierrez directed Rios to go into his residential space, an area with which she was quite familiar, where she began to feed the dogs and where she was trapped when the assault began. Had they not continued to share some semblance of their former domestic relationship, Rios would not have been placed in such a vulnerable position.

Moreover, even Gutierrez testified that, to the extent he and Rios tussled at all that day, the trouble began when Rios shared her personal problems with him and then jealously accused him of being a traitor for leaving her for another woman. By his account, that discord escalated into physical violence, albeit directed solely at him by Rios. In short, there is ample evidence Gutierrez and Rios still harbored feelings for one another that could and did, erupt into domestic violence, even though their romantic relationship “officially” ended three years earlier. That domestic relationship was at the root of their confrontation, and it is the vulnerability inherent in that relationship that the statute was purposefully designed to address. Gutierrez was properly convicted under section 273.5.

Gutierrez does not claim there is insufficient evidence to support his conviction under section 273.5, only that the statute should not apply here.

4. Separate sentences were properly imposed for each count.

Gutierrez contends the imposition of concurrent sentence in count two for assault by means of force likely to produce great bodily injury and consecutive sentence in count three for false imprisonment violate section 654. He claims all three counts arose from a single, indivisible course of conduct of battery of a former cohabitant, for which he was convicted in count one. He argues that the consecutive sentence imposed in count three must be vacated and the concurrent sentence for his conviction on count two should be stayed. We conclude otherwise.

Even if a concurrent sentence adds no time to defendant’s total term, it is still a separate punishment and proper remedy is to vacate lesser concurrent sentence and order it stayed. (People v. Martinez (1985) 171 Cal.App.3d 727, 736.)

In pertinent part, section 654 provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) The statute is “intended to ensure that defendant is punished ‘commensurate with his culpability.’” (People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Correa (2008) 161 Cal.App.4th 980, 985.) Its protections extend to situations in which several offenses are committed during an indivisible course of conduct. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.)

Indivisibility is determined by the defendant’s intent and objective. (People v. Hicks (1993) 6 Cal.4th 784, 789.) If all the offenses are incidental to, or the means of accomplishing or facilitating a single objective, the defendant may be punished for any one offense but not more than one. (People v. Harrison, supra,48 Cal.3d at p. 335.) On the other hand, if the defendant harbored “multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639; People v. Ibarra (2007) 151 Cal.App.4th 1145, 1153 [where a defendant is guilty of similar and related crimes committed over a short period of time but nonetheless entertained multiple intents and purposes, sentencing may be imposed on each crime].) The focus is whether he acted pursuant to a single intent and objective. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) Whether multiple convictions were part of an indivisible transaction is primarily a question of fact for the trial court, whose determination will be upheld on appeal if supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Avalos, supra,47 Cal.App.4th at p. 1583.)

A. The false imprisonment consecutive sentence

“False imprisonment is the unlawful violation of the personal liberty of another.” (§ 236.) A victim’s personal liberty is violated, and a charge of false imprisonment established, when the victim is compelled by menace or violence to stay where she does not wish to remain, or go where she does not wish to be. (People v. Reed (2000) 78 Cal.App.4th 274, 280.) The “menace” which makes the offense felonious, is a threat of harm, either express or implied by word or deed. (Ibid.)

Rios saw Gutierrez lock the heavy gate and door after she entered the shop. At that point, she knew she could not get out without help. For the next seven to ten hours, Gutierrez held Rios hostage in fear, including a threat to “cut [her] up in pieces and put [her] in a fucking truck.” She was certain she could not escape. The crime of false imprisonment requires “some intended confinement or restraint of the person. . . . Any exercise of force or express or implied threat of force by which in fact the person is restrained from his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is such imprisonment. The imprisonment may be committed by acts or words merely operating on the will of the individual and/or by personal violence.” (People v. Haney (1977) 75 Cal.App.3d 308, 313.) Gutierrez’s threats of force by which he kept Rios imprisoned were not acts or conduct necessary to facilitate or merely incidental to his physical assault on her. The trial court was entitled to conclude false imprisonment was a separately punishable offense.

B. The concurrent sentence for assault by force likely to cause great bodily injury

Although counts one and two reflect an overall intent to injure Rios, the trial court was entitled to conclude each “act” by which Gutierrez accomplished that ultimate goal was sufficiently distinct to constitute a separate act of criminal violence, and that Gutierrez harbored independent multiple objectives in committing the assaults, for purposes of supporting multiple sentences under section 654. “The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)

People v. Nubla (1999) 74 Cal.App.4th 719 is instructive. There, the defendant committed several acts of violence against his wife: he bloodied her nose pushing her onto the bed, put a gun to the back of her head, and stuck a gun in her mouth. The court held it was not error to impose multiple concurrent sentences for assault with a deadly weapon and corporal injury on a spouse. It analogized the offenses to separate sexual assaults occurring over a period of time and concluded: “Appellant’s act of pushing his wife onto the bed and placing the gun against her head was not done as a means of pushing the gun into her mouth, did not facilitate that offense and was not incidental to that offense. The trial court was entitled to conclude that each act was separate for purposes of Penal Code section 654.” (Id. at p. 731; see also People v. Trotter (1992) 7 Cal.App.4th 363, 366-368 [holding that where defendant fired three shots at a police officer while fleeing in a stolen taxicab, the first shot separated by almost a minute from the second two, he could be punished for two assaults].)

Gutierrez committed separate acts of assaulting Rios by beating, kicking and attempting to set her on fire, by assaulting her with a razor, and by restraining her from leaving the premises, and he was properly subject to separate sentences for each.

DISPOSITION

Appellant was improperly sentenced in count one and count two. Judgment is reversed for resentencing. In all other respects, the judgment is affirmed.

We concur: MALLANO, P.J., ROTHSCHILD, J.


Summaries of

People v. Gutierrez

California Court of Appeals, Second District, First Division
Sep 18, 2008
No. B199681 (Cal. Ct. App. Sep. 18, 2008)
Case details for

People v. Gutierrez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALFRED GUTIERREZ, Defendant and…

Court:California Court of Appeals, Second District, First Division

Date published: Sep 18, 2008

Citations

No. B199681 (Cal. Ct. App. Sep. 18, 2008)