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People v. Gutierrez

Court of Appeal of California, Second District, Division Two
Aug 8, 1996
48 Cal.App.4th 1894 (Cal. Ct. App. 1996)

Summary

In Gutierrez, "the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence.

Summary of this case from People v. Castaneda

Opinion

Docket No. B096030.

August 8, 1996.

Appeal from Superior Court of Los Angeles County, No. PA020651, Judith Meisels Ashmann, Judge.

COUNSEL

Odion Leslie Okojie, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, John R. Gorey, Jaime L. Fuster and Susan C. Diamond, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION


Mark Gutierrez appeals from his conviction by jury trial of robbery and attempted robbery. The jury found allegations of three prior convictions, one of which was alleged pursuant to section 667, subdivisions (b) through (i) of the Penal Code (the three strikes law), to be true. Appellant was sentenced to a total prison term of 18 years, 4 months. (1) His sole contention on appeal is that the trial court had discretion to strike the prior felony conviction in the furtherance of justice under the three strikes law.

The record shows the following. Appellant, then 34 years old, attempted to rob 2 men, each at least 30 years his senior. He beat one man and took his identification bracelet. He subsequently attacked another man, but help arrived before appellant could take the older man's property. Appellant had a criminal history involving violence and theft.

Following appellant's conviction, the trial court imposed the high term for count 1, robbery, stating that appellant was "clearly engaged in a pattern of violent conduct, which indicates he is a serious danger to society." It doubled the term pursuant to the three strikes law, and did not indicate that it had discretion to strike the three strikes prior conviction. The court imposed a consecutive sentence for count 2, attempted robbery, and imposed an additional five years pursuant to Penal Code section 667, subdivision (a), based upon a prior conviction for robbery. The court noted that it had discretion whether to impose two additional one-year enhancements for prior convictions of petty theft and taking a vehicle without the owner's consent pursuant to section 667.5, subdivision (b). It stated that "this is a situation where I do agree with [the prosecutor], there really isn't any good cause to strike it. There are a lot of reasons not to, and this is the kind of individual the law was intended to keep off the street as long as possible."

During the pendency of this appeal, our Supreme Court has determined that trial courts have discretion to strike three strikes prior convictions in the furtherance of justice. ( People v. Superior Court ( Romero) (1996) 13 Cal.4th 497 [ 53 Cal.Rptr.2d 789, 917 P.2d 628].) The holding is made expressly retroactive. Reconsideration of sentencing is required under Romero where the trial court believed it did not have discretion to strike a three strikes prior conviction, unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.

In the present case, the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence. It stated that imposing the maximum sentence was appropriate. It increased appellant's sentence beyond what it believed was required by the three strikes law, by imposing the high term for count 1 and by imposing two additional discretionary one-year enhancements. Under the circumstances, no purpose would be served in remanding for reconsideration. Moreover, in light of appellant's record and the facts of the present offense, imposition of the maximum term is well within the trial court's sentencing discretion.

The judgment appealed from is affirmed.

Boren, P.J., and Fukuto, J., concurred.


Summaries of

People v. Gutierrez

Court of Appeal of California, Second District, Division Two
Aug 8, 1996
48 Cal.App.4th 1894 (Cal. Ct. App. 1996)

In Gutierrez, "the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence.

Summary of this case from People v. Castaneda

In People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), the Court of Appeal held "[r]econsideration of sentencing is required under [People v. Superior Court (Romero) (1996) 13 Cal.4th 497] where the trial court believed it did not have discretion to strike a three strikes prior conviction, unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations."

Summary of this case from People v. Galvez

In Gutierrez, the trial court had exercised its discretion not to strike a different enhancement, commenting that it did not believe the defendant's sentence should be shortened. (Gutierrez, supra, at p. 1896.)

Summary of this case from People v. Saysanasy

In Gutierrez, the trial court sentenced the defendant to the maximum possible sentence, which included an enhancement for a prior strike conviction and two other discretionary enhancements.

Summary of this case from People v. Goins

In Gutierrez, the sentencing court noted that the defendant clearly engaged in a pattern of violent conduct and was a serious danger to society.

Summary of this case from People v. Sanchez

In Gutierrez, the Court of Appeal, relying on comments made by the trial court at the sentencing hearing, declined to remand for resentencing after the courts gained discretion to strike prior strikes under Romero.

Summary of this case from People v. Embry

In Gutierrez, the sentencing court noted that the defendant clearly engaged in a pattern of violent conduct and was a serious danger to society.

Summary of this case from People v. Sanchez

In Gutierrez, the appellate court concluded that it need not remand the case for the trial court to exercise its discretion under Romero to strike a prior conviction under the "Three Strikes" law, because the record showed that the trial court would not have exercised such discretion.

Summary of this case from People v. King

In People v. Gutierrez (1996) 48 Cal.App.4th 1894, the sole issue was whether "the trial court had discretion to strike the [appellant's] prior felony conviction in the furtherance of justice under the three strikes law."

Summary of this case from People v. Munoz

In People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, the trial court increased the defendant's sentence beyond what it believed the Three Strikes law required, by imposing the high term and two additional discretionary one-year enhancements.

Summary of this case from People v. Dean

In Gutierrez, cited by respondent, the trial court indicated that it would not have exercised its discretion to impose a lesser sentence even if it had the discretion to do so.

Summary of this case from People v. Melendez

In Gutierrez, the sentencing court expressly addressed the issue of whether there was "any good cause to strike" the prior conviction at issue and "a lot of reasons not to" in concluding that the defendant was "the kind of individual the law was intended to keep off the street as long as possible."

Summary of this case from People v. Nay

In People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), Division Two of the Second Appellate District refused to remand, concluding "no purpose would be served in remanding for reconsideration."

Summary of this case from People v. Thurman

In Gutierrez, the Court of Appeal considered whether it should remand to allow the trial court to decide whether it would dismiss a strike conviction under section 1385 in a three strikes case following our high court's decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497. (Gutierrez, supra, 48 Cal.App.4th at pp. 1895-1896.)

Summary of this case from People v. Stinson

In Gutierrez, the trial court had exercised its discretion not to strike a different enhancement, commenting that it did not believe the defendant's sentence should be shortened. (Gutierrez, supra, at p. 1896.)

Summary of this case from People v. Chapa

In People v. Gutierrez (1996) 48 Cal.App.4th 1894, at page 1896 the appellate court refused to remand to allow the trial court to determine whether to dismiss a strike under section 1385, reasoning that, "[u]nder the circumstances, no purpose would be served in remanding for reconsideration.

Summary of this case from People v. Stevens

In People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, the trial court increased the defendant's sentence beyond what it believed the Three Strikes law required, by imposing the high term and two additional discretionary one-year enhancements.

Summary of this case from People v. Smith

In Gutierrez, the Court of Appeal considered a remand for resentencing after People v. Superior Court (Romero) (1996) 13 Cal.4th 497 gave trial courts discretion to strike prior strikes.

Summary of this case from People v. Banks

In People v. Gutierrez (1996) 48 Cal.App.4th 1894, cited by the People, a California Supreme Court case clarified while the appeal was pending that trial courts had discretion to strike certain prior convictions; the Court of Appeal found it unnecessary to remand because the trial court stated on the record that, even if it had the discretion to strike the prior conviction, it would not have done so.

Summary of this case from People v. Douglas

In Gutierrez, a jury convicted the defendant of one count of robbery and one count of attempted robbery, and found true allegations of three prior convictions, one of which was a strike under section 667, subdivisions (b) through (i). (Gutierrez, supra, 48 Cal.App.4th at p. 1895.)

Summary of this case from People v. Rangel

In Gutierrez, a jury convicted the defendant of one count of robbery and one count of attempted robbery, and found true allegations of three prior convictions, one of which was a strike under section 667, subdivisions (b) through (i). (Gutierrez, supra, 48 Cal.App.4th at p. 1895.)

Summary of this case from People v. Rangel

In Gutierrez, the Court of Appeal considered whether it should remand to allow the trial court to decide whether it would dismiss a strike conviction under section 1385 in a second-strike case following our high court's decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497. (Gutierrez, at pp. 1895-1896.)

Summary of this case from People v. Wilcoxen

In People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez), the appellate court refused to remand to allow the trial court to determine whether to dismiss a strike under section 1385, reasoning that "[u]nder the circumstances, no purpose would be served in remanding for reconsideration.

Summary of this case from People v. Duran

In Gutierrez, the trial court had exercised its discretion not to strike a different enhancement, commenting that it did not believe the defendant's sentence should be shortened. (Gutierrez, supra, at p. 1896.)

Summary of this case from People v. Estrada

In Gutierrez, the Court of Appeal considered a remand for resentencing after People v. Superior Court (Romero) (1996) 13 Cal.4th 497 gave trial courts discretion to strike prior strikes.

Summary of this case from People v. Ruiz
Case details for

People v. Gutierrez

Case Details

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

Court:Court of Appeal of California, Second District, Division Two

Date published: Aug 8, 1996

Citations

48 Cal.App.4th 1894 (Cal. Ct. App. 1996)
56 Cal. Rptr. 2d 529

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