People v. Gutierrez CA3 ( 2024 )

Filed 9/16/24 P. v. Gutierrez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, C098427
Plaintiff and Respondent, (Super. Ct. No. 14F03886)
v.
ROZCO GUTIERREZ,
Defendant and Appellant.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 from a
resentencing hearing and with no supplemental appellate brief or letter. We affirm.
A jury found defendant Rozco Gutierrez guilty of second degree murder and found
various enhancements true. He was sentenced to 40 years to life in state prison: 15 years
to life for murder and 25 years to life for the firearm enhancement. In his first appeal,
another panel of this court conditionally reversed the judgment and remanded the case for
a juvenile transfer hearing pursuant to Welfare and Institutions Code section 707.
(People v. Rozco Gutierrez et al. (Feb. 6, 2020, C083218) [nonpub. opn.] (Gutierrez).)
On remand, the juvenile court granted the People’s petition to transfer defendant to a
court of criminal jurisdiction. A different panel of this court affirmed that transfer order.
(The People v. R.G. (Feb. 23, 2024, C098371) [nonpub. opn.].) On our own motion, we
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take judicial notice of our prior unpublished opinions. (Evid. Code, §§ 452, subd. (d),
459, subd. (a).) At the resentencing hearing in the criminal court, the trial court declined
to strike the firearm enhancement. Defendant appeals.
I. BACKGROUND
Defendant and E.G were Norteño gang members. A short distance from the
victim’s home, defendant climbed onto the handlebars of a bicycle pedaled by E.G.
Defendant had a rifle and a handgun, while E.G. had a handgun. E.G. pedaled the bicycle
to the front of the victim’s home where R.R. and his friend, K.O., were out front doing
yardwork. R.R. and K.O. were Tongan Crip gang members. (Gutierrez, supra,
C083218)
E.G. fired his handgun towards R.R. and K.O. from the bicycle, while defendant
fired the rifle on foot next to the bicycle. When they opened fire, R.R. ran inside and
came back with an “Uzi” and returned fire. (Gutierrez, supra, C083218.)
One bullet killed R.R. Another bullet injured K.O. (Gutierrez, supra, C083218.)
After R.R. collapsed in the street, defendant and E.G. moved away from the home while
still firing at the victims. (Ibid.)
When detectives arrived, they found defendant and E.G. trying to put the rifle in
defendant’s pants. The detectives took defendant and others into custody. Defendant had
a rifle, three magazines loaded with rifle ammunition, a nine-millimeter semiautomatic
handgun, and a red bandana. E.G. was holding a cell phone, had a .357-magnum
revolver, and was wearing clothing indicating his membership in the Norteño gang.
(Gutierrez, supra, C083218.)
The jury found defendant guilty of second degree murder. The jury also found
true various enhancement allegations, including that defendant personally and
intentionally discharged a firearm which proximately caused the death of the victim. The
trial court sentenced defendant to 40 years to life in state prison. (Gutierrez, supra,
C083218.)
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On direct appeal, a different panel of this court modified the judgment to strike the
gang enhancement, conditionally reversed the modified judgment, and remanded the case
to the juvenile court for a juvenile transfer hearing. (Gutierrez, supra, C083218.) On
remand, the juvenile court granted the motion transferring the case to the criminal court.
A third panel of this court affirmed that ruling. (In re R.G., supra, C098371.)
When the matter returned to the criminal court, defendant asked the trial court to
strike the firearm enhancement. Defense counsel argued defendant had suffered an
extremely chaotic and traumatic childhood, had no record prior to this offense, was
involved with the wrong people, and his house had burnt down for a second time just
prior to the murder. Defense counsel also argued that defendant’s mother had a long
history of mental health issues and defendant was left to fend for himself when she was at
a shelter but he was not allowed to stay there. The People opposed that motion, pointing
out that although defendant had engaged in some rehabilitative efforts in prison and there
were some mitigating circumstances, defendant consistently committed new rule
violations and engaged in violent conduct in prison (stabbing another prisoner and
possessing a manufactured weapon). The People argued defendant continued to be a
threat to public safety. The trial court found that dismissing the firearm enhancement
would endanger public safety and refused to exercise its discretion to strike the firearm
enhancement. The trial court reconfirmed the previous sentence of 40 years to life in
state prison imposed on October 14, 2016.
Defendant filed a timely notice of appeal.
II. DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and, pursuant to People v. Wende, supra, 25 Cal.3d
436, requesting the court to review the record and determine whether there are any
arguable issues on appeal. Counsel advised defendant of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief. We have received no
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communication from defendant. We have independently reviewed the record and
conclude there is no arguable error that would result in a disposition more favorable to
defendant.
III. DISPOSITION
The judgment is affirmed.
/s/
MESIWALA, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
KRAUSE, J.
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