People v. Gutierrez CA4/3

Filed 4/29/14 P. v. Gutierrez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G048456

v. (Super. Ct. No. 12CF0149)

JUAN GUTIERREZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Daniel Barrett McNerney, Judge. Affirmed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent. * * *

A jury convicted defendant Juan Gutierrez of committing false imprisonment (Pen. Code, § 236; all statutory references are to the Penal Code unless noted) and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also found he personally used a deadly weapon (§ 12022, subd. (b)(l)) during the false imprisonment offense. Gutierrez contends the trial court violated section 654 by imposing a consecutive four-month term for the weapon use enhancement. For the reasons expressed below, we affirm.

I FACTUAL AND PROCEDURAL BACKGROUND Shortly after midnight on January 14, 2012, Nicole S. attended an outdoor “factory” party in Santa Ana with her cousin Ashley L. and other friends. A total of 50- 60 people had gathered, drinking, smoking, and listening to music. Nicole S., Ashley L., and a few friends stood in the parking area when Gutierrez, previously yelling at no one in particular, walked up to Nicole S. and said angrily, “Somebody did him dirty.” He held a machete against his leg. Nicole S. tried to back away but he laid the machete on her shoulder, asked where she was going, and told her she could not go anywhere. Ashley L. yelled at Gutierrez, and he went toward her with the machete raised. Nicole S. moved to protect Ashley L. and told Gutierrez to leave her alone. Gutierrez “just kept saying . . . random things.” Other partygoers tried to intervene, but he swung the machete toward their faces. Gutierrez then tried to pull Nicole S.’ friend Sergio out of Ashley L.’s car. Nicole S. told Gutierrez not to touch Sergio. Gutierrez ranted he had no friends and did not trust anyone. Nicole S. attempted to enter on the car through the passenger side door, but Gutierrez hit the door with the machete and again told Nicole S. “wasn’t going to go anywhere.” He rested the machete on the hood of the car, and kept Nicole S. and her friends at bay for almost half an hour.