People v. Gutierrez CA3

Filed 2/27/23 P. v. Gutierrez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C095460

Plaintiff and Respondent, (Super. Ct. No. 19FE014650)

v.

ANDRES GUTIERREZ,

Defendant and Appellant.

The trial court found that defendant Andres Gutierrez violated the terms and conditions of his probation and a criminal protective order requiring that he not harass or stalk Lena J., the mother of their two children. We note that we refer to the victim by her first name and the first letter of her last name and we refer to a witness below by her initials for her first and last names, pursuant to California Rules of Court, rule 8.90(b)(4), (11).

1

The court revoked defendant’s probation and sentenced him to four years in prison for domestic abuse. (Pen. Code, § 273.5; statutory section citations that follow are found in the Penal Code unless otherwise stated.) Defendant contends that the revocation of his probation should be reversed, because a fake Facebook page he created impersonating Lena J. was free speech protected by the First Amendment. Defendant forfeited this claim by not raising it in the trial court. If the claim was not forfeited, we would nonetheless conclude it had no merit. The judgment is affirmed.

FACTS AND HISTORY OF THE PROCEEDINGS On July 26, 2019, defendant and Lena J. were arguing in a car parked at a gas station. Defendant and Lena J. lived together and had two children. Defendant punched Lena J. in the face multiple times. On October 17, 2019, defendant pleaded no contest to domestic abuse. (§ 273.5.) The trial court sentenced defendant to the upper term of four years and suspended the sentence. The court placed defendant on formal probation for five years and ordered him to serve 300 days in county jail. The court also issued a criminal protective order under section 1203.097, subdivision (a)(2) that defendant “must not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block movements” of Lena J. On December 15, 2020, the probation department filed a petition for revocation of defendant’s probation, alleging the defendant violated the criminal protective order. Defendant admitted the violation and probation was reinstated. On June 11, 2021, the probation department filed a second petition to revoke defendant’s probation. On August 12, 2021, the trial court conducted a probation violation hearing. From the testimony and exhibits admitted at the hearing, the following facts came before the trial court: On May 25, 2021, Lena J. awoke to messages from friends asking if she