People v. Guzman CA6

Filed 4/14/15 P. v. Guzman CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039286 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1198262)

v.

JONATHAN ISMAEL GUZMAN,

Defendant and Appellant.

STATEMENT OF THE CASE A jury convicted defendant Jonathan Ismael Guzman of first degree murder (Pen. Code, §§ 187/189).1 The jury found true an allegation that defendant personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) and found true an allegation that defendant committed murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced defendant to a total prison term of 50 years to life, consisting of a term of 25 years to life for the murder and a term of 25 years to life for the firearm enhancement. The trial court stayed the sentence on the gang enhancement.

1 Subsequent unspecified statutory references are to the Penal Code.

Defendant now appeals from the judgment of conviction. On appeal, he contends that there was insufficient evidence to support the “primary activities” element of the gang enhancement. He also contends that his sentence is cruel and unusual punishment under Miller v. Alabama (2012) 567 U.S. ___,132 S.Ct. 2455 (Miller). As set forth below, we conclude that the prosecution presented sufficient evidence in support of the gang enhancement, and we also conclude that defendant’s sentence does not constitute cruel and unusual punishment. We therefore will affirm the judgment of conviction. STATEMENT OF THE FACTS The Shooting At approximately 5:00 p.m. on January 21, 2011, Hugo Gutierrez rode a bicycle on Capitol Expressway in San Jose. Defendant, who was also riding a bicycle, followed Gutierrez. Defendant pointed a gun at Gutierrez and fired. Gutierrez got off his bicycle, ran toward a restaurant, and fell down outside the restaurant. Defendant jumped off his bicycle and walked toward Gutierrez. Gutierrez attempted to stand up, but he lost his footing. Gutierrez put up his hands in an effort to shield himself, and he screamed for help. Defendant began “rapidly firing” the gun at Gutierrez. Gutierrez was “just lying there” on the ground, and defendant fired multiple shots at him. Defendant then jumped on his bicycle and rode away. Gutierrez suffered gunshot wounds on his chest, abdomen, arms, and legs. One of the bullets struck Gutierrez’s heart, and it killed him. Gang Evidence At the time of the shooting, defendant was a member of Kollmar Vago Trece (hereafter “KVT”), a Sureño street gang. Gutierrez was a member of Just Busting Funk (hereafter “JBF”), a Norteño street gang. There is a longstanding rivalry between Sureño gangs and Norteño gangs.