People v. Gutierrez CA5

Filed 1/2/24 P. v. Gutierrez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F085577 Plaintiff and Respondent, (Super. Ct. No. MCR072468) v.

EMILIO GUTIERREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Sosi Chitakian Vogt, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

Defendant Emilio Gutierrez was found guilty by a jury of two counts of second degree burglary and was found to have suffered a prior “strike” conviction within the

* Before Hill, P. J., Smith, J. and Snauffer, J.

meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).1 Defendant was sentenced to five years four months in prison. Defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, identifying no error and asking the court to determine whether there were any arguable issues on appeal. Defendant was afforded an opportunity to submit a supplemental brief but failed to do so in the time allotted. We have conducted an independent review of the record and find no error. We affirm. PROCEDURAL BACKGROUND On May 5, 2022, the Madera County District Attorney filed a second amended information charging defendant with two counts of second degree burglary (§ 459; counts 1 & 2) and possession of a device for smoking controlled substances (Health & Saf. Code, § 11364, subd. (a); count 3). As to counts 1 and 2, the second amended information further alleged that defendant had suffered a prior “strike” conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and alleged six aggravating factors—(1) defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed (Cal. Rules of Court, rule 4.421(a)(7));2 (2) defendant took property of great monetary value (rule 4.421(a)(9)); (3) defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness (rule 4.421(b)(2)); (4) defendant served a prior term in prison or county jail under section 1170, subdivision (h) (rule 4.421(b)(3)); (5) defendant was on probation, supervision, or parole at the time the crime was committed (rule 4.421(b)(4)); and (6) defendant’s prior performance on probation, supervision, or parole was unsatisfactory (rule 4.421(b)(5)).