People v. Gutierrez

1

THE PEOPLE, Plaintiff and Respondent, v. JOSE JUAN GUTIERREZ et al., Defendants and Appellants

B250333

California Court of Appeals, Second District, Third Division

July 13, 2022

NOT TO BE PUBLISHED

APPEALS from judgments of the Superior Court of Los Angeles County No. BA388274, Monica Bachner, Judge. Affirmed in part reversed and remanded in part with directions.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant Gerardo Jacobo.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant Jose Juan Gutierrez.

Rob Bonta, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General Noah P. Hill and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

EDMON P. J.

In 2013, Jose Juan Gutierrez and Gerardo Jacobo were convicted of, among other crimes, premeditated attempted murder with gang and firearm use enhancements. They appealed their convictions, raising numerous claims, all of which this Division rejected. As we explain in greater detail below since then, Gutierrez and Jacobo have been pursuing, successfully in large part, their appellate remedies. Here is where we are in that pursuit: the California Supreme Court has vacated a prior opinion we issued in 2019 and directed us to reconsider the cause in light of recently-enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775). In accordance with that order, we have reconsidered the matter in light of Senate Bill 775, as well as Assembly Bill No. 333.^[1] We find both statutes applicable, and, accordingly, remand the matter for a potential retrial on the attempted murder count (Jacobo only) and the gang allegations (Jacobo and Gutierrez) and for resentencing.

BACKGROUND

I. Evidence from the 2013 trial^[2]

A. The shooting

Gutierrez and Jacobo were members of the City Terrace gang, whose main rival was the Geraghty Lomas gang. On August 7, 2011, at about 1:30 a.m., Martha G. drove her van to Duke's liquor store. Martha's passengers included her husband Joel, her stepson Santiago, and Santiago's friend, Ernie. The liquor store was within territory claimed by the Geraghty Lomas gang. Ernie and Santiago went into the store to buy beer while Martha and Joel waited in the van. Santiago was walking with a crutch.

Just after Ernie and Santiago entered the liquor store, a pickup truck parked at the front entrance. Jacobo got out of the truck and went into the liquor store, where he appeared to exchange words with either Ernie or Santiago, or both of them.^[3]Jacobo made his purchase and left the store. Immediately afterward, Santiago and Ernie completed their purchase and left the store. As they were walking out the front entrance, Jacobo was sitting in the truck's front passenger seat and was in the act of pulling the truck door closed. Santiago gestured toward Jacobo and appeared to say something to him. In response, Jacobo and Gutierrez (who was sitting in the rear passenger seat) immediately got out of the truck.

Initially, Jacobo and Gutierrez both approached Santiago, who was standing just a few steps away. Jacobo punched Santiago in the face and grabbed his crutch. Santiago began running down the sidewalk in the direction of Martha's van. Meanwhile, Gutierrez turned and approached Ernie, who had been standing slightly behind Santiago. Gutierrez swung at Ernie's head with a handgun and kicked him. Ernie fell to the ground. Gutierrez kicked Ernie again and then joined Jacobo in chasing Santiago down the sidewalk. With Gutierrez running right behind him, Jacobo chased Santiago while swinging the crutch at him. As the three men were running down the sidewalk, Joel got out of Martha's van and joined the fray in an effort to protect Santiago. The melee spilled over into an intersection. Joel and Gutierrez apparently began to fight and then Gutierrez fired his gun six times at Joel, hitting him twice.^[4]Joel ran back to the van, which sped off. Jacobo and Gutierrez returned to the pickup truck and the driver sped off.

Martha testified that she was sitting in the van talking to Joel when the fight broke out. She watched Santiago and Ernie leave the liquor store, and she saw the defendants attack them. When Joel got out of the van to help Santiago, he began fighting with Gutierrez. Martha saw Gutierrez shoot at Joel five or six times. Joel ran back to the van and said he had been shot. Martha drove off, leaving Ernie behind. She drove Joel to the hospital where he was treated for gunshot wounds to his leg and hip. According to Martha, neither Joel, Santiago nor Ernie were armed that night.

Alfonso E. was working at Duke's liquor store that night and he recognized Ernie as a regular customer. Alfonso saw Jacobo walk in, approach Ernie and exchange words with him. Jacobo said, "Where are you [from]? This is City Terrace." Alfonso testified that Ernie replied by saying, "That's cool. No problem." However, when Alfonso was interviewed by the police, he told them that Ernie had responded: "This is Geraghty." Moments after Ernie and Santiago left the store, Alfonso heard gunfire.

The police found six expended .380-caliber shell casings in the street, five or six car lengths from Duke's liquor store.

B. The gang evidence

Detective Eduardo Aguirre testified as the prosecution's gang expert. He was familiar with the City Terrace gang, whose primary activities included murders, shootings, robberies, drug sales, possession of handguns, burglaries, vandalism, and stealing cars. Duke's liquor store is located at the north end of territory belonging to the Geraghty Lomas gang, about a quarter mile from the border with City Terrace territory. Geraghty Lomas is City Terrace's main rival. Their contiguous border was a source of tension between the two gangs.

Aguirre testified it would constitute a sign of disrespect for a gang member to venture into a rival gang's territory. When a gang member "hits up" a potential rival by inquiring where he is from, this is a confrontational challenge (the speaker is asking the other person to reveal his gang affiliation) that is considered a provocation and can lead to a physical assault or a shooting if the person answers with the name of a rival gang. It is an accepted part of gang culture that a gang member must take some form of action when confronted by a rival. Backing down from a potential confrontation is frowned upon, and a gang member who did so would not only lose respect, but could possibly be ejected from the gang, assaulted, or killed. Aguirre explained that "if a gang member is disrespected out in the street, what you're supposed to do, you're supposed to act on it with some sort of violence."

Aguirre testified that gang members pass guns around among themselves and store them in safe places having no known ties to the gang. It is common for gang members to stay armed even when they are just out socializing with friends. Gang members make it a point to know whether fellow members of their gang are armed; this is "for their own protection, and in order to go and commit crimes."

Aguirre testified that both defendants were members of the City Terrace gang. Jacobo, who was 31 or 32 years old, had been a member since he was 15. Jacobo had personally admitted his membership to Aguirre. Gutierrez, who was younger, had been a member of the City Terrace gang for only four or five years. It was stipulated that Gutierrez was a member of City Terrace on the night Joel was shot.

Asked a hypothetical question based on the evidence in this case, Aguirre opined that the shooting had been committed for the benefit of the City Terrace gang. Following the hostile encounter inside the liquor store, Jacobo was just getting back into the truck when Santiago walked by and apparently said something provocative: "That showed an outright disrespect to the older gang member [i.e., Jacobo], as well as to the younger gang member [i.e., Gutierrez] in the car. And at that point, both City Terrace gang members had no choice but to act and either assault, shoot or kill the persons that disrespected them."

C. Verdicts and sentences

In 2013, a jury found Gutierrez guilty of willful, deliberate, and premeditated attempted murder with true findings on gang and gun allegations (Pen. Code,^[5] §§ 664, 187, subd. (a), 186.22, subd. (b)(1)(C), 12022.53, subds. (b), (c), (d); count 1); assault with a deadly weapon, a crutch, on Santiago with true findings on a gang allegation (§ 245, subd. (a)(1), 186.22, subd. (b)(1)(B); count 2); and assault with a semiautomatic firearm on Ernie with true findings on gang and gun allegations (§§ 245, subd. (b), 186.22, subd. (b)(1)(B), 12022.5, subd. (a); count 3).

The jury found Jacobo guilty of willful, deliberate and premeditated attempted murder with true findings on gang and principal gun use allegations (§§ 664, 187, subd. (a), 186.22, subd. (b)(1)(C), 12022.53, subds. (b), (c), (d) &(e)(1); count 1); assault with a deadly weapon, a crutch, on Santiago with true findings on a gang allegation (§ 245, subd. (a)(1), 186.22, subd. (b)(1)(B); count 2); and misdemeanor simple assault on Ernie (§ 241, subd. (a); count 3).

The trial court sentenced Gutierrez to a determinate term of 17 years 8 months and to a life term with a 15-year minimum parole eligibility for the attempted premeditated murder plus a consecutive 25-years-to-life term for the firearm enhancement. It sentenced Jacobo to a determinate term of eight years, plus a life term for the attempted premeditated murder, plus a 25-years-to-life term. As to both defendants the trial court imposed restitution fines, suspended parole revocation restitution fines, court operations assessments, and criminal conviction...