People v. Gutierrez CA2/2

Filed 12/10/20 P. v. Gutierrez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B306071

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA063723) v.

JOSE JESUS GUTIERREZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Connie R. Quinones, Judge. Reversed and remanded.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Michael R. Johnsen, Deputy Attorneys General.

****** Jose Jesus Gutierrez (defendant) argues that the trial court erred in declining to consider whether to exercise its newly conferred discretion to strike his firearm enhancements at a hearing to correct defendant’s unauthorized sentence. Because this new discretion “applies to any resentencing that may occur pursuant to any other law” (Pen. Code, § 12022.53, subd. (h)),1 the trial court erred in not considering defendant’s request to strike his firearm enhancements. Accordingly, we remand for the trial court to do so. FACTS AND PROCEDURAL BACKGROUND I. Facts In February 2002, defendant was a member of the Victoria Park Locos street gang. On February 1, defendant shot two members of the rival Victoria Park Crips gang; he wounded but did not kill them. The next night, defendant shot two other men; he wounded one and killed the other. II. Procedural Background A. Prosecution, trial and original sentence The People charged defendant with one count of murder (§ 187, subd. (a)) and three counts of attempted premeditated murder (§§ 187, subd. (a), 664, subd. (a)). As to each count, the People alleged that defendant personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (id., subd. (c)), and personally used a firearm (id., subd. (b)). The People further alleged that defendant committed these crimes to benefit a criminal street gang (§ 186.22, subd. (b)).