People v. Gutierrez CA2/6

Filed 3/26/14 P. v. Gutierrez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B248585 (Super. Ct. No. GA086998) Plaintiff and Respondent, (Los Angeles County)

v.

JESSE BERNAL GUTIERREZ,

Defendant and Appellant.

Appellant Jesse Bernal Gutierrez's motion to bifurcate the trial of prior offenses from the trial of charged crimes was granted. Following his conviction of the criminal charges, the matter was set for a bench trial of the priors and for sentencing. After several continuances, the trial court sentenced him on the charges and the priors. Unfortunately, the priors were never tried. "'No, no!' said the Queen. 'Sentence first - verdict afterwards.' 'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first.'"1 We concur with Alice. Appellant was charged by information with second degree commercial burglary (Pen. Code, § 459; count 1),2 petty theft with a prior (§ 666, subd. (b); count 2),

1 Carroll, Alice's Adventures in Wonderland (1865) ch. XII, Alice's Evidence.

2 All statutory references are to the Penal Code unless otherwise stated.

and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 3). Count 2 alleged that appellant had a prior conviction for violating Vehicle Code section 10851 (auto theft) and had served time in a penal institution for that crime. (§ 666, subd. (b).) It was further alleged that appellant had a prior felony conviction under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served four prior prison terms pursuant to section 667.5, subdivision (b). The trial court bifurcated the trial on the priors. The jury found appellant guilty of petty theft (§ 484, subd. (a)) and possession of methamphetamine. He was acquitted on count 1. Appellant waived his right to a jury trial on the allegations that he had a prior "strike" conviction, had served a prior prison term and had a prior theft conviction for which he was incarcerated. The trial court continued "the matter for sentencing and for the priors." On the scheduled date, the trial court denied appellant's motion to dismiss the prior strike allegation (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), and continued the matter for sentencing. Three continuances later, the trial court sentenced appellant. In its sentencing allocution,3 the court stated: "In addition to the jury trial convictions, the court found true the allegation that the defendant suffered a prior conviction and fell within the meaning of . . . section 1170.12(a) through (d)," and "also found true the allegation that the defendant suffered another prior conviction which fell under . . . section 667.5(b)." (Italics added.) The court imposed two years on count 2 and eight months on count 3. It doubled the term to five years four months based on the prior strike and added one year for the prior prison term, for a total sentence of six years four months. Appellant was awarded 560 days of custody credit. There is no record of a trial on the truth of the commission of the prior offenses. Appellant contends, and the Attorney General concedes, his sentence is unauthorized because the priors were not resolved by way of trial or admission.