People v. Gutierrez CA3

Filed 9/16/24 P. v. Gutierrez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) ----

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take judicial notice of our prior unpublished opinions.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.)