People v. Gutierrez CA4/1 ( 2022 )

Filed 8/29/22 P. v. Gutierrez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079300
Plaintiff and Respondent,
v. (Super. Ct. No. JCF002869)
FERNANDO GUTIERREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Monica Lepe-Negrete, Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A.
Sevidal and James H. Flaherty III, Deputy Attorneys General, for Plaintiff
and Respondent.
I
INTRODUCTION
Fernando Gutierrez and several other combatants got into a street
brawl. After the fight ended, Gutierrez got into his car, steered it to face the
other combatants, accelerated, and struck or otherwise injured multiple
victims. He was found guilty of five counts of assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1); counts 1–5), one count of driving while under
the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a);
count 6), and one count of hit and run resulting in injury to another person
(id., § 20001, subd. (b)(1); count 7). The trial court sentenced him to eight
years and eight months in prison, calculated as follows: the upper term of
four years for count 5, plus consecutive one-year terms for counts 1–4 (one-
third the midterm), plus a consecutive upper term of eight months for count
7. It imposed and stayed punishment for count 6 under Penal Code section
654.
Gutierrez appeals the judgment of conviction. He claims the trial court
violated the prohibition against the dual use of sentencing factors. In
particular, he asserts the court erroneously relied on the same factors both to
impose the upper term for count 5 and run the sentences for counts 1–4
consecutively.
Gutierrez waived his argument by failing to object to the claimed
sentencing error in the trial court. Further, he has not established that the
trial court impermissibly relied on the same factors both to impose the upper
term and run the terms concurrently. The judgment is affirmed.
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II
BACKGROUND
One evening, a fight involving Gutierrez and several other people broke
out in an El Centro neighborhood. Accounts differ as to why the skirmish
occurred. One participant testified that Gutierrez slashed the tires to his
truck. He claimed he confronted Gutierrez to admit fault or pay for the tires,
but Gutierrez started the fight by pushing him and throwing a glass bottle.
Gutierrez, on the other hand, testified that the other participants started
punching and kicking him without provocation. In any event, the fight
started and then ended soon afterwards. After the fight, Gutierrez walked to
his car and the other participants retreated to a nearby home with an
attached carport.
Gutierrez started his car and sat in it for a few seconds. He pulled out
of his parking spot, quickly accelerated the car, and steered it directly into
the carport where some of the fight participants and their family members
were congregated. Multiple victims were struck by the car or otherwise
injured. Gutierrez reversed his car and drove off.
A short time later, Gutierrez crashed his car into a light post. He was
taken to the hospital and a blood draw was performed. Testing showed he
had a blood alcohol concentration of 0.098 at the time of the blood draw,
which took place more than two hours after the fight.
III
DISCUSSION
Gutierrez challenges his sentence on grounds that the trial court
violated the prohibition against the dual use of sentencing factors. He claims
the court erred because it purportedly relied on the same factors both to
impose the upper term for count 5 and run the terms for counts 1–4
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consecutively. (See People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12 (Scott) [“it
is clear that the court cannot rely on the same fact to impose both the upper
term and a consecutive sentence”]; Cal. Rules of Court, rule 4.425(b) [“Any
circumstances in aggravation or mitigation … may be considered in deciding
whether to impose consecutive rather than concurrent sentences, except[] [¶]
... [a] fact used to impose the upper term”].)
Preliminarily, Gutierrez waived his argument because he did not object
to the alleged dual-use violation in the proceedings below. “[C]omplaints
about the manner in which the trial court exercises its sentencing discretion
and articulates its supporting reasons cannot be raised for the first time on
appeal,” including arguments that the court “double-counted a particular
sentencing factor” in the sentence. (Scott, supra, 9 Cal.4th at pp. 353, 356;
see People v. de Soto (1997) 54 Cal.App.4th 1, 7–8 (de Soto) [defendant waived
argument concerning dual-use violation by failing to raise specific objection in
the trial court].) We apply the waiver rule under these circumstances to
“reduce the number of errors committed in the first instance and preserve the
judicial resources otherwise used to correct them.” (Scott, at p. 353.)
Gutierrez contends he did not waive his dual-use argument because
prior to sentencing he filed a mitigation statement in which he argued that
certain factors warranted imposition of the lower- or middle-term for the
principal term and concurrent sentences for the subordinate terms. These
arguments were neither timely nor specific; therefore, they did not preserve
his dual-use claim for appeal. (People v. Smith (1998) 64 Cal.App.4th 1458,
1468 [“The law generally requires not only a timely but a specific objection or
motion to preserve an issue for appeal.”], italics omitted.) The arguments
were not timely, as they were raised well before imposition of the sentence.
(de Soto, supra, 54 Cal.App.4th at p. 9 [arguments at presentencing hearing
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did not preserve claims of sentencing error because “objections must be raised
contemporaneously with the pronouncement of sentence”]; accord Scott,
supra, 9 Cal.4th at p. 351 [“courts have required parties to raise certain
issues at the time of sentencing”], italics omitted.) And they were not
specific, as they concerned issues unrelated to the alleged dual-use violation
at issue in this appeal. (de Soto, at p. 9 [boilerplate objections do not preserve
specific sentencing arguments for appeal].) For both of these reasons, the
arguments set forth in Gutierrez’s statement in mitigation did not preserve
his dual-use argument for appeal.
In the alternative, Gutierrez argues his argument was not waived
because he did not have a meaningful opportunity to object to the dual-use
violation at sentencing. The waiver rule applies only if the defendant had “a
meaningful opportunity to object” to the trial court’s sentencing decision.
(Scott, supra, 9 Cal.4th at p. 356.) The corollary to this rule, of course, is that
“[i]t is only if the trial court fails to give the parties any meaningful
opportunity to object that the [waiver] rule becomes inapplicable.” (People v.
Gonzalez (2003) 31 Cal.4th 745, 752.)
Gutierrez had sufficient opportunity to object to the alleged dual-use
violation. The court gave an indicated sentence prior to sentencing and
permitted argument from both parties regarding their respective positions
during the sentencing hearing. After denying probation, the court designated
count 5 as the principal term and indicated its intent to impose the upper
term. The court explained the upper term was warranted due to several
aggravating circumstances: (1) Gutierrez showed “an absolute and callous
disregard for human life,” (2) he “used the car as a deadly weapon,” (3) his
actions “were volatile and brutal,” and (4) he was on probation at the time of
his crimes. (See Cal. Rules of Court, rule 4.421(a)(1) & (2); id.,5
rule 4.421(b)(1) & (4).) Further, the court noted there were no factors in
mitigation. In doing so, the court rejected Gutierrez’s contentions that he
acted under extreme provocation and the victims were the initial aggressors.
Then, the court stated its intention to run the subordinate terms
consecutively. It pronounced its intended sentence for the remaining two
counts (counts 6 and 7) and revoked probation in a separate criminal case.
Thereafter, the court invited comment from counsel three times before
adjourning. The first invitation simply asked counsel to confirm the court’s
mathematical calculations (“So his total state prison sentence is eight years,
eight months. [¶] Am I correct, counsel, my math?”). However, the second
and third invitations were open-ended requests for comment (the court twice
asked, “Anything else, counsel?”). In response, the prosecutor raised a
previously-unaddressed sentencing issue—an updated custody credit
calculation. However, defense counsel did not object to the court’s supposed
dual use of sentencing factors. Further, there is no indication the court
discouraged or precluded defense counsel from objecting to the sentence. On
this record, we conclude Gutierrez had a meaningful opportunity to object.
(See People v. Boyce (2014) 59 Cal.4th 672, 731 [defendant had meaningful
opportunity to object where court entertained arguments of counsel,
pronounced sentence, and “adjourned after asking counsel if there was
anything else to discuss”].)
Even if Gutierrez had preserved his argument, we would still affirm
the judgment. As noted, the court discussed various factors warranting the
imposition of an aggravated sentence for the principal term (count 5). It did
not specify its reasons for running the subordinate terms (counts 1–4)
consecutively. Gutierrez acknowledges the court did not articulate its
reasons for running the terms consecutively. However, he argues we must
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assume the court impermissibly relied on the same factors both to impose the
upper term and run the subordinate terms consecutively. That is not how the
principles of appellate review operate.
“[O]n appeal a judgment is presumed correct, and a party attacking the
judgment, or any part of it, must affirmatively demonstrate prejudicial
error.” (People v. Garza (2005) 35 Cal.4th 866, 881.) “ ‘ “In the absence of
such a showing, the trial court is presumed to have acted to achieve
legitimate sentencing objectives, and its discretionary determination to
impose a particular sentence will not be set aside on review.” ’ ” (People v.
Lee (2017) 16 Cal.App.5th 861, 866.) “ ‘Error may not be presumed from a
silent record.’ ” (People v. Czirban (2021) 67 Cal.App.5th 1073, 1097.)
Gutierrez has not carried his burden of establishing prejudicial error.
The record before us does not disclose the reasons the trial court ran the
subordinate terms consecutively. Because the record is silent with respect to
this issue, we presume the court properly exercised its discretionary
sentencing authority.
IV
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
DO, J.
BUCHANAN, J.
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