P. v. Gutierrez

Filed 7/16/07 P. v. Gutierrez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Clarence A. Westra, Jr., Judge.

Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.

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A Kern County jury found Eduardo Gutierrez (Appellant) guilty of two counts of willful, deliberate, and premeditated attempted murder (Pen. Code,  187, subd. (a), 664) with a single enhancement for using a firearm causing great bodily injury (Pen. Code,  12022.53, subd. (d)). The trial court sentenced Appellant to two consecutive life sentences with the possibility of parole for the attempted murders plus 25 years to life for the firearm enhancement. Appellant contends the trial court abused its discretion by denying his motions for new counsel and in imposing consecutive life sentences. We will affirm.

BACKGROUND

Around 1:00 a.m. on July 28, 2006, Selso Plancarte and taxi-cab driver Regulo Medina were playing cards at the El Paraiso bar outside Bakersfield when Appellant entered. Noticing Appellant did not have any money, Plancarte bought two of Appellants drinks, but explained he would not buy him any more. Appellant told Plancarte, thats fine, and offered to sell him a telephone. When Plancarte declined, Appellant leaned in and said, dont be afraid.

Appellant finished his beer and left. Watching on a video monitor from an office, the owner of the bar, Jean-Pierre Goyenetche, saw someone push Appellant outside. Medina then left the bar to pick up a taxi customer and saw Appellant slash a tire on Plancartes car. Appellant ran away and Medina returned to the bar to tell Plancarte. Medina gave Plancarte a ride in his taxi and they went to search for Appellant.

Plancarte and Medina caught up with Appellant at a bridge approximately a block and a half from the bar. Appellant and Plancarte got into a fight and at some point, Appellants wallet fell out of his pocket. Plancarte picked up the wallet, returned to the bar, and gave it to Goyenetche.

Goyenetche called the sheriff and waited outside for assistance. While waiting, he took a shovel out of Plancartes trunk and started weeding. Meanwhile, Medina returned from driving his customer. About 20 minutes later, Goyenetche saw Appellant approach and thought he looked crazy, walking back and forth. Medina noticed Appellant had changed his shirt. Appellant then pulled a .22 caliber rifle out of his pants and said in Spanish, I told you I was coming back. Appellant aimed the gun at Goyenetches chest and pulled the trigger. Goyenetche heard the sound of a click. Plancarte witnessed the event and estimated Appellant was only 3 to 4 feet from Goyenetche.

Medina took the shovel from Goyenetche and swung it at Appellant, hitting either the rifle or Appellants arm. Medina ran away and tried to defend himself with the shovel as he saw Appellant loading the rifle. Appellant fired several shots and Medina felt bullets strike his hand and his back before falling to the ground. Appellant caught up to Medina and held the gun less than a foot from Medinas face and shot him in the cheek. Medina was able to hit Appellant with the shovel before Appellant fled.

Preliminary hearing testimony of Appellants wife, Maria Anina Gallardo Raya, was read into the record because she was unavailable. She recalled Appellant came home drunk on the night of the shooting, changed his shirt, and slid his shotgun down the leg of his pants. They left together and went to the bridge to look for Appellants wallet. Raya and Appellant borrowed a flashlight from some other people in the area and asked if they had seen a wallet. Appellant left as Raya continued searching for the wallet; almost immediately thereafter, she heard two gunshots. Raya could not see the bar very well from her location. Appellant walked back towards her and shortly thereafter the police drove up and arrested Appellant.

Arresting officer Kern County Deputy Sheriff Ian Chandler noticed Appellant smelled of alcohol and appeared extremely intoxicated. The deputy seized the rifle from Appellants pant leg and a case containing 80 .22 caliber rifle bullets from his pocket.

DISCUSSION

I. Motion for New Counsel

Appellant contends the trial court conducted an inadequate hearing and abused its discretion in denying his motion for substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

When a defendant seeks discharge of his appointed counsel on the basis of inadequate representation by making what is commonly referred to as a Marsden motion, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsels inadequacy. [Citations.] A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.] []We review a trial courts decision declining to discharge appointed counsel under the deferential abuse of discretion standard. (People v. Cole (2004) 33 Cal.4th 1158, 1190.)

A trial court does not abuse its discretion in denying a Marsden motion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendants right to assistance of counsel. (People v. Smith (1993) 6 Cal.4th 684, 690-691; see also People v. Clark (1992) 3 Cal.4th 41, 104.)

Outside the presence of the jury, the trial court heard Appellants first request to substitute his assigned public defender on October 10, 2006. Appellant complained that his counsel failed to locate two witnesses -- an African American male and a Caucasian woman in a wheelchair -- who may have seen the fight under the bridge when he lost his wallet. After first discussing the inadequate description of the potential witnesses, Appellants defense counsel explained to the trial court:

[DEFENSE COUNSEL]: Theyre not witnesses that saw the incident for which hes being charged. [Appellant] is confused about that. He got attacked twice that day. Once, he was attacked under a bridge; and then later, he comes back with a gun. And in the parking lot of the bar, hes attacked again. Hes talking about the first attack.  [] []

THE COURT: Whats the connection between the first and second attack?

[DEFENSE COUNSEL]: Well, in my mind theres not a lot of connection. He gave me a description, which, according to my notes, he was not even sure what the race was, but that his wife could help.

My investigator went to see the wife and asked the wife -- did an investigation to try and find someone who was under the bridge who would be a homeless person. She checked homeless shelters, and she couldnt find anyone there.

Defense counsel added that the witnesses, even if located, would have minimal consequences on Appellants case.

The trial court immediately thereafter gave Appellant another opportunity to express his dissatisfaction with his representation. Appellant stated he needed a report of everything, the police report, in Spanish because he [didnt] have anything. Defense counsel responded that Appellant first asked me for the reports on Friday, and theres no way Im going to get them translated into Spanish and give them to him. Its just not possible. The hearing took place on a Tuesday following a Monday court holiday. Appellant said he did not know much about this case, but that he didnt just ask[] for them last Friday. Appellant argued it was defense counsels obligation to advise him he needed the reports and that he was not being informed completely about everything that has to do with [his] case. After confirming Appellant did not have any additional complaints, the trial court denied his request to substitute counsel.

At a subsequent Marsden hearing requesting substitution of counsel on October 18, 2006, Appellant blamed his defense counsel for the prosecutions withdrawal of a plea offer. Defense counsel explained that the prior prosecutor assigned to the case had offered a 19 years to life sentence, but that a new prosecutor withdrew the offer and replaced it with 33 years to life. Appellants defense counsel clarified:

I just wanted to explain to [Appellant] -- and Id like to do it in front of the Court he probably feels because he Marsdened me when the offer was 19 and then the offer went to 33, he may feel -- it isnt that the offer went up to 33. I wanted to make it clear to him that I had no control over the fact the offer went away.

When the offer changed to 33, I came to this Court at readiness and asked the Court to leave the 19 open, and the Court said it couldnt do anything.

I want to make that clear to him because I think theres some confusion.

The trial court confirmed to Appellant:

I indicated to [defense counsel] exactly as he told you. These are things he has no control over and the Court is not inclined to get involved in. Its something that -- an offer that was made by the District Attorneys office. And I can assure you that I dont know exactly what motivated [the prosecutor] to withdraw the offer, but its not my belief [he] did so because he was upset over the fact you had a Marsden motion against the public defender.

The trial court asked if Appellant had any other concerns, and Appellant responded that he wanted an attorney who could tell him step by step what is happening because his life was at risk. Upon further questioning by the trial court, Appellant said he did not understand what happened to the 19-year offer, but that now it had been explained and he understood.

Appellant failed to establish that his counsels representation was inadequate to the point that it substantially impaired his right to effective assistance of counsel at either of the two Marsden hearings. As explained by defense counsel, his investigator made a good faith attempt to locate the potential witness who may have seen the initial confrontation at the bridge between Appellant and Plancarte, but the investigator was unable to find them. Moreover, defense counsel considered the potential witnesses were only minimally relevant given their absence at the time of the shootings. (See People v. Lucky (1988) 45 Cal.3d 259, 281 [difference of opinion between defendant and attorney over trial tactics does not mandate new representation].) As to obtaining Appellants police records, defense counsel explained Appellant only recently asked for them and having them translated into Spanish given the time constraints would be impossible. (See People v. Hart (1999) 20 Cal.4th 546, 600, 604 [failure to provide defendant with police reports not sufficient grounds for Marsden motion where it could have compromised case].) While Appellant may not have understood why the 19-year prison term offer had been withdrawn by the prosecutor, there is no indication counsels representation was inadequate or that Appellant and his counsel had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result. The trial court did not abuse its discretion in denying Appellants Marsden motion.

II. Consecutive Sentencing

Appellant contends the trial court abused its discretion in imposing consecutive sentences for both counts of attempted murder. When any person is convicted of two or more crimes, the trial court is empowered to direct whether the terms of imprisonment or any of them shall run concurrently or consecutively. ( 669.) Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another, with any term imposed for applicable enhancements, or with any other term of imprisonment for a felony conviction. (Ibid.)

The trial court has wide discretion in determining whether criminal sentences shall be served consecutively or concurrently and its sentencing decision may be disturbed on appeal only upon a showing the court abused that discretion. (People v. Morales (1967) 252 Cal.App.2d 537, 547.) In assessing whether to impose consecutive sentences, the trial court considers whether:

(1) The crimes and their objectives were predominantly independent of each other;

(2) The crimes involved separate acts of violence or threats of violence; or

(3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. (Cal. Rules of Court, rule 4.425(a).)

Defense counsel asked the trial court to consider concurrent sentencing because Appellant was highly intoxicated and committed a single action that happened almost immediately, and [he] did not fire on the second person until the second person by his own testimony attacked the him first. Disagreeing with defense counsels argument, the trial court reasoned:

It would appear to the Court and it does appear to the Court that the incident, events underlying these two crimes were incident where Mr. Gutierrez [was] extremely aggravated, agitated, and I presume angry would be the better word, got a firearm, returned, and as suggested by [the prosecutor] was in the frame of mind that whoever got in his way was [a] person who was at risk. And certainly except for what appears to the Court [a] fortuity of events this is only [an] attempted murder case rather than being a murder case.

The Courts [sic] of the considered opinion that the events, circumstances and conduct of the defendant make this a case in which the Court feels that the appropriate response are consecutive sentences. [] []

And the Court finds the reason for the consecutive sentence is that there were two specific victims and that one person was fired at and then on a second go round after another bystander intervenes, Mr. Gutierrez engages in additional conduct which was directed specifically at that individual. Such conduct which was not originally directed at the first individual. So the Courts [sic] of the considered opinion that the events, circumstances reflect two separate incidents and two separate victims and that the defendant attempted to point the weapon and fire and discharge the weapon at the two separate persons, one was not incident to the []other, and therefore, that is the reason for the consecutive sentences.

Primarily applying California Rules of Court, rule 4.425(a)(2), the trial court appropriately based its decision to impose consecutive sentences by finding Appellants conduct constituted distinct acts of violence against two separate victims. Appellant pointed his rifle first at Goyenetches chest and pulled the trigger. After Medina interfered and attempted to stop the assault, Appellant pursued and shot Medina several times. Although Appellant argues concurrent sentencing is warranted because only one of the victims was actually hurt, his actions nevertheless constituted separate acts of attempted murder. The trial court did not abuse its discretion in imposing consecutive prison terms.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.