People v. Gutierrez CA4/1

Filed 8/29/22 P. v. Gutierrez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079300

Plaintiff and Respondent,

v. (Super. Ct. No. JCF002869)

FERNANDO GUTIERREZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Imperial County, Monica Lepe-Negrete, Judge. Affirmed. Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

I INTRODUCTION Fernando Gutierrez and several other combatants got into a street brawl. After the fight ended, Gutierrez got into his car, steered it to face the other combatants, accelerated, and struck or otherwise injured multiple victims. He was found guilty of five counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); counts 1–5), one count of driving while under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a); count 6), and one count of hit and run resulting in injury to another person (id., § 20001, subd. (b)(1); count 7). The trial court sentenced him to eight years and eight months in prison, calculated as follows: the upper term of four years for count 5, plus consecutive one-year terms for counts 1–4 (one- third the midterm), plus a consecutive upper term of eight months for count 7. It imposed and stayed punishment for count 6 under Penal Code section 654. Gutierrez appeals the judgment of conviction. He claims the trial court violated the prohibition against the dual use of sentencing factors. In particular, he asserts the court erroneously relied on the same factors both to impose the upper term for count 5 and run the sentences for counts 1–4 consecutively. Gutierrez waived his argument by failing to object to the claimed sentencing error in the trial court. Further, he has not established that the trial court impermissibly relied on the same factors both to impose the upper term and run the terms concurrently. The judgment is affirmed.