P. v. Gutierrez

Filed 5/25/06  P. v. Gutierrez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Tulare County.  Joseph A. Kalashian, Judge.

            Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

            Defendant Rolando Gutierrez shot a 17-year-old boy in the neck for wearing attire of a rival gang.  The victim was paralyzed.  Defendant was convicted of premeditated attempted murder, attempted robbery, and assault with a firearm.  His sentence of 40 years to life included enhancements for causing great bodily injury by intentionally discharging a firearm and for acting for the benefit of a criminal street gang.

            On appeal, defendant asserts errors related to jury instructions, the prosecutor's closing argument, the verdict form, cruel and unusual punishment, and lesser-included offenses.  We hold that there was no prejudicial error and affirm the judgment.  We also order an amendment to the abstract of judgment upon which the parties agree.

FACTUAL AND PROCEDURAL HISTORIES

            Defendant, 16 years old at the time of the offense and a Norteño gang member, encountered the victim, a Sureño gang member, one afternoon outside a grocery store in Farmersville.  Norteños claim Farmersville as their territory.  Defendant ordered the victim to remove his blue shoes, which were indicative of his Sureño affiliation.  The victim refused.  After asking the victim and his companions â€