P. v. Gutierrez

Filed 1/19/07  P. v. Gutierrez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

          APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryne A. Stoltz, Judge.  Affirmed and remanded.

          Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

          Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

          Moises A. Gutierrez appeals from the judgment entered following a jury trial in which he was convicted of first degree residential robbery (Pen. Code, §  211), and a court trial in which he was found to have suffered two prior convictions of a serious felony within the meaning of Penal Code section 667, subdivision (a)(1).  Additionally, the court found appellant had been convicted of four prior convictions of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, §§  667, subds. (b)-(i); 1170.12, subds. (a)-(d)).[1]  He was sentenced to prison for 35 years to life, which consisted of a sentence of 25 years to life plus two 5-year enhancements pursuant to Penal Code section 667, subdivision (a)(1).  He claims the trial court abused its discretion by refusing to strike his prior convictions for serious or violent felonies.  For reasons explained in the opinion, we affirm the judgment. 

FACTUAL AND PROCEDURAL SUMMARY

          On November 15, 2004, at approximately 1:00 p.m., Larry Marshall propped open the front door to his residence and brought groceries in from his car.  While the door was still open and he was on his knees putting some of the purchased items into a storage cabinet, he heard a voice behind him tell him to get up.  Mr.  Marshall was very surprised and turned around.  Appellant was pointing his hand, which was in a brown lunch bag, at Mr.  Marshall's head, and demanded Mr.  Marshall's wallet.  Mr.  Marshall was afraid and turned over his wallet, which contained approximately $68.  He believed there could have been a gun, a knife, or just appellant's fingers in the bag.  Appellant told Mr. Marshall to get back down on his knees and to â€