People v. Gutierrez CA1/5

Filed 8/18/23 P. v. Gutierrez CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A165662 v. RENE GUTIERREZ, (Contra Costa County Defendant and Appellant. Super. Ct. No. 051705821)

Defendant appeals after he was resentenced by the trial court following the partial grant by the United States District Court for the Northern District of California of his pro se petition for a writ of habeas corpus. Defendant’s appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), requesting this court to independently review the record on appeal to determine whether it contains any arguable issues. Defendant filed a supplemental brief. As discussed post, because defendant is appealing after resentencing, we apply the procedures in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). BACKGROUND Defendant was convicted after a jury trial of 10 counts of committing a lewd act upon three children (Pen. Code, § 288, subd. (a))1 and one count of

1 All statutory references are to the Penal Code.

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first degree burglary (§ 459). The trial court sentenced him to four consecutive terms of 25 years to life on counts 1, 3, 4, and 5 (§ 667.61) and to a determinate term of 10 years on the remaining counts. We affirmed defendant’s judgment on appeal. (People v. Gutierrez (Feb. 11, 2019, A153194) [nonpub. opn.].) The California Supreme Court denied defendant’s petition for review. On August 12, 2020, defendant filed a petition for a writ of habeas corpus under title 28 United States Code section 2254 in the United States District Court for the Northern District of California. The district court issued an order to show cause, and after briefing, it issued an order granting the petition as to the burglary count (count 2) and the burglary enhancement on count 1. The district court vacated defendant’s burglary conviction (count 2) and the burglary enhancement on count 1 and remanded the case to the trial court for resentencing or retrial on the burglary count. On remand, the People opted not to retry defendant for burglary. The trial court vacated the burglary conviction (count 2) and the burglary enhancement on count 1 and resentenced defendant to four consecutive terms of 25 years to life on counts 1, 3, 4, and 5 (§§ 288, subd. (a), 667.61) and to a determinate term of five years four months on counts 6–11 (§§ 288, subd. (c)(1), 1170.1), comprised of the middle term of two years on count 6 and one- third the middle term (eight months), consecutive, on counts 7–11. The trial court subsequently issued a third amended abstract of judgment, correcting the total custody credits per defendant’s request. Defendant’s appellate counsel filed a brief pursuant to Wende, requesting this court to independently review the record on appeal to determine whether it contains any arguable issues. Defendant filed a supplemental brief.