People v. Gutierrez CA3

Filed 11/17/23 P. v. Gutierrez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C097551

Plaintiff and Respondent, (Super. Ct. No. CM015323)

v.

PEDRO GUTIERREZ,

Defendant and Appellant.

In 2003, defendant Pedro Gutierrez was convicted of two counts of lewd and lascivious acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (a))1 and one count of failing to register as a sex offender (§ 290). He was sentenced to an aggregate term of 24 years four months, which included enhancements for two prior prison terms (§ 667.5, subd. (b)) and a prior sexual offense conviction (§ 667.51,

1 Undesignated statutory references are to the Penal Code.

1

subd. (a)). In 2022, the trial court found Gutierrez’s sentence included a now invalid enhancement under section 1172.75 (former section 1171.1) and set the matter for resentencing. The trial court struck Gutierrez’s prior prison term enhancements and made no further modifications to the sentence. On appeal, Gutierrez argues the court erred by failing to strike his prior sexual offense conviction enhancement under section 1385, subdivision (c), as the court did not consider and afford great weight to the fact that the enhancement was over five years old and resulted in a sentence of over 20 years. Because the record is ambiguous as to whether the trial court made an informed sentencing decision not to strike the five-year prior conviction enhancement, we will vacate the sentence and remand for resentencing. BACKGROUND We omit a summary of the facts underlying Gutierrez’s convictions because they are not relevant to the issue raised on appeal. In August 2022, the trial court reviewed the records on file in this case and found Gutierrez “was convicted of an enhancement” described in section 1172.75.2 The trial court appointed counsel and placed the matter on calendar for resentencing pursuant to section 1172.75. At the October 2022 resentencing hearing, defense counsel stated: “I think there is only one issue . . . on the 667(a) [sic] petition which is the nickel prior. That was mandatory at originally the sentencing. It’s now discretionary. However, if the