People v. Gutierrez CA6

Filed 10/10/23 P. v. Gutierrez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H050168 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. C1807638)

v.

EZEQUIEL JOSEPH GUTIERREZ,

Defendant and Respondent.

The People appeal the order granting Ezequiel Joseph Gutierrez’s motion to dismiss probation violations alleged against him. For the reasons stated here, we will affirm the order dismissing the probation violations and remand the matter for further appropriate action as to Gutierrez’s probation. I. PROCEDURAL BACKGROUND Gutierrez pleaded no contest to charges of robbery (Pen. Code § 212.5, subd. (c)) and carrying a loaded firearm in a vehicle (Pen. Code § 25850, subd. (c)(1)). He also admitted to personally using a firearm in connection with the robbery (Pen. Code § 12022.5, subd. (a)), and to serving a prior prison term for evading a peace officer (Pen. Code § 667.5, subd. (b)). (We omit the facts of the offenses as they are not relevant to the analysis and disposition of the appeal.) In August 2019, the trial court suspended execution of a six-year sentence and placed Gutierrez on probation for three years, including conditions to obey all laws and to

serve 364 days in jail. Gutierrez’s probation was revoked the following month and reinstated in December 2019. Probation was again revoked in February 2020. In September 2021, the probation department filed a memorandum notifying the court that Gutierrez had been convicted of a new felony offense in San Joaquin County and as of April 2021was serving a 32-month prison term in that case. The memorandum alleged additional violations, including a July 2021 misdemeanor conviction in Alameda County, and the failure to comply with probation department reporting requirements. Gutierrez’s case was calendared the next day for arraignment on the probation violations alleged. Gutierrez did not appear because he was in prison, and a bench warrant issued. In December 2021, Gutierrez made a demand to the Santa Clara County District Attorney under Penal Code section 1381 for speedy trial of the violations alleged in this case. The form notice stated that Gutierrez was incarcerated at the California Correctional Institution in Tehachapi. The district attorney obtained an order to produce Gutierrez, but on February 18, 2022, the Sheriff’s Transportation Unit informed the district attorney that Gutierrez had been transferred to California State Prison, Solano. That same day, the district attorney sent a letter to Gutierrez at the Solano prison instructing him to make a new demand in light of the transfer. Gutierrez sent a new Penal Code section 1381 notice and demand from the Solano prison, which the district attorney received on March 15, 2022. The district attorney again obtained an order to produce Gutierrez and on May 6, 2022, Gutierrez appeared in the trial court and moved orally to dismiss the probation violations. At a further hearing one week later, Gutierrez argued for dismissal of the probation violations based on the district attorney’s failure to act on the speedy trial request within 90 days of the first demand. The district attorney countered that it had complied with the statute and that Gutierrez’s initial demand became invalid when he was moved to different prison facility.