P. v. Gutierrez

Filed 3/2/06 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Gerald Sevier, Judge.

Conrad Petermann, 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, Stephen G. Herndon and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.

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By a second amended information filed on October 17, 2003, appellant George Aniceto Gutierrez was charged in count 1 with conspiracy to sell a controlled substance (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11379), in count 2 with sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), in count 4 with possession for sale of a controlled substance (Health & Saf. Code, § 11378), in count 5 with possession of an assault weapon (Pen. Code, § 12280, subd. (b)), and in count 6 with receiving stolen property (Pen. Code, § 496, subd. (a)). The information also alleged that, as to counts 2 and 4, the amount of controlled substance was excessive pursuant to Penal Code section 1203.073, subdivision (b)(2), and that, as to count 4, appellant was armed with a firearm pursuant to Penal Code section 12022, subdivision (c).

The second amended information also charged a codefendant, Armando Alvarado, Sr., under counts 1, 2 and 3, and a second codefendant, Armando Beltran Martinez, under count 1, the alleged conspiracy to sell methamphetamine. As overt acts in furtherance of the conspiracy, count 1 alleged that between February 7, 2002, and August 18, 2002: (1) appellant instructed codefendant Martinez to meet with the confidential informant to make a sale of methamphetamine, (2) codefendant Martinez drove to a gas station to meet with the confidential informant, and (3) appellant introduced the confidential informant to codefendant Alvarado at a particular address where methamphetamine was purchased.

Trial commenced on October 21, 2003. Counts 5 and 6 were dismissed during the course of the trial. The jury found appellant guilty on counts 1 and 2. It found appellant not guilty on count 4, but guilty of the lesser included offense of possession of methamphetamine.

Codefendant Alvarado also was found guilty under counts 1 and 2. The jury acquitted codefendant Martinez, who was charged only with the alleged conspiracy.

At a hearing held September 3, 2004, the trial court sentenced appellant to state prison for a term of three years eight months on the present case, plus two consecutive eight-month terms in two drug possession cases in which he had previously been placed on probation.

Appellant contends error occurred in connection with instructions on entrapment. He also asserts the evidence shows both entrapment and a violation of due process through outrageous police conduct, both as a matter of law. We will affirm.

FACTS

In February 2002, Anthony Benitez, a detective in the narcotics unit of the Tulare Count-y Sheriff's Department, contacted a confidential informant, with whom he had previously worked, for the purpose of investigating suspected illegal drug activity involving appellant.

Gene Pico had worked as a confidential informant with various law enforcement officials for over 15 years and had worked with Detective Benitez on three or four occasions.

Prosecution's Case

On February 7, 2002, Detective Benitez met with Pico to discuss whether Pico could make contact with appellant and, if possible, bring up the subject of narcotics. Pico did not know appellant but told Detective Benitez that he would try to make contact. Pico and Detective Benitez discussed a location known as the â€