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People v. Gutierrez

California Court of Appeals, Second District, Seventh Division

February 26, 2018

THE PEOPLE, Plaintiff and Respondent,

         APPEAL from a judgment of the Superior Court of Los Angeles County No. YA092645, Steven R. Van Sicklen, Judge. Affirmed in part, reversed in part and remanded with directions.

          Elana Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Mary Sanchez, Ryan M. Smith, and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

          PERLUSS, P. J.

         Mitchell Alejandro Gutierrez appeals from the judgment entered after a jury convicted him of fleeing a police officer while driving recklessly, unlawful driving or taking a vehicle, driving under the influence of alcohol and hit-and-run driving. Gutierrez contends he was improperly convicted of felony vehicle theft and the offense should be reduced to a misdemeanor. He also contends the trial court committed prejudicial error by admitting evidence of his prior conviction for unlawful driving or taking a vehicle. Finally, Gutierrez asks us to review the sealed transcripts of the hearing regarding disclosure of the personnel file of the police officer involved in his pursuit and arrest to determine whether the court abused its discretion when it concluded there were no discoverable materials.

         We reverse Gutierrez's felony conviction for unlawful driving or taking a vehicle (count 2), vacate his sentence in its entirety and remand for retrial on that count or resentencing. On remand the People will have the election of accepting a reduction of the felony conviction on count 2 to a misdemeanor or retrying count 2 as a felony. In all other respects we affirm Gutierrez's convictions.


         1. The Information

         Gutierrez was charged in an information with felony counts for fleeing a pursuing police officer while driving recklessly (Veh. Code, § 2800.2)[1] (count 1) and driving or taking a vehicle without the owner's consent after a prior conviction for the same or similar offense (§ 10851; Pen. Code, § 666.5) (count 2) and misdemeanor counts for driving under the influence (DUI) of alcohol within 10 years of two other DUI offenses (§§ 23152, subd. (a), 23546) (count 3), driving with a blood alcohol content greater than or equal to.08% within 10 years of another DUI offense (§§ 23152, subd. (b), 23540) (count 4) and hit-and-run driving resulting in property damage (§ 20002, subd. (a)) (count 5). It was specially alleged as to count 2 that Gutierrez had previously been convicted of a felony violation of section 10851 and as to counts 3 and 4 that he had previously been convicted of one violation of section 23103, subdivision (a) (reckless driving), and one violation of section 23152, subdivision (b). Gutierrez pleaded not guilty and denied the special allegations.

         2. Evidence at Trial

         In June 2015 Gutierrez was in a relationship with Jorgann Gonzalez.[2] Gutierrez routinely drove Gonzalez's car, often taking her to work in the morning, keeping the car during the day, and picking her up in the evening. In early June 2015 Gonzalez was in a car accident, and her car was damaged. Her father rented a Nissan Altima for her to drive while her car was being repaired. Gonzalez was listed as an authorized driver on the car rental agreement. Gutierrez was not.

         On the morning of June 26, 2015 Gutierrez drove Gonzalez to a doctor's appointment in the rental car. After the appointment the couple spent the day at Gutierrez's house. Around 6 p.m. Gutierrez told Gonzalez he was leaving and would return later. Approximately 30 minutes later Gonzalez realized the rental car keys were not in her purse where she had left them and the car was gone. Gonzalez called Gutierrez and told him to bring the car back. He said he would.

         Gutierrez returned approximately an hour later. He parked the rental car down the street from his house and got out, but left the engine running. Gonzalez came outside. As she approached the car, Gutierrez got back in and drove away. Gonzalez called Gutierrez approximately five times to tell him to bring the car back, but he did not answer his phone. Gonzalez testified she had not given Gutierrez permission to take the car that evening.

         Around 10:45 p.m. Officer Atanacio Jimenez of the Gardena Police Department was patrolling in a marked police car. He noticed a vehicle fail to stop at a stop sign and turn the corner at a high rate of speed. The vehicle, which Jimenez later learned was being driven by Gutierrez, turned into an alley travelling approximately 15 miles per hour over the speed limit. Jimenez pursued the vehicle without turning on his patrol car's lights or siren and observed Gutierrez fail to stop at another stop sign, fail to stop at multiple red lights and drive on the wrong side of the road. At that point Jimenez activated his vehicle's lights and siren. Gutierrez did not pull over, instead proceeding through another stop sign without stopping. He continued driving over 40 miles per hour. Gutierrez then pulled into a parking lot and jumped out of the rental car while it was still moving. The car collided with a parked car. Gutierrez ran toward the rear entrance of an adjacent bar. Jimenez asked a bystander where Gutierrez had gone and was told Gutierrez ran into the bar. Jimenez broadcast the situation over the radio, and one of the responding officers arrested Gutierrez outside the front entrance of the bar. Jimenez's patrol car was equipped with a dashboard camera, which was activated when Jimenez turned on the car's lights and siren. The video footage of the incident was played for the jury.

         Gardena Police Officer Jaycon Sanchez responded to Officer Jimenez's broadcast call on June 26, 2015. When Sanchez arrived at the front entrance of the bar Gutierrez had entered, a woman outside the bar told him a man standing in front of the bar, later identified as Gutierrez, was the person he was pursuing. Sanchez testified Gutierrez appeared drunk. Gutierrez refused a field sobriety test. A breathalyzer test administered at the police station showed Gutierrez's blood alcohol level as.14 percent. Upon learning of the night's events, Gonzalez told police Gutierrez had stolen the car.

         Gutierrez did not testify or present any witnesses in his defense.

         3. Jury Instructions and Closing Argument Regarding Unlawful Taking or Driving a Vehicle

         The court instructed the jury, pursuant to CALCRIM No. 1820, that to prove Gutierrez guilty of unlawfully taking or driving a vehicle in violation of section 10851, “the People must prove that: [¶] 1. The defendant took or drove someone else's vehicle without the owner's consent; [¶] AND [¶] 2. When the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time.”[3] As part of CALCRIM No. 252, Union of Act and Intent, the court also instructed, to find a person guilty of the crime of driving or taking a vehicle without consent, “that person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with a specific intent.... [¶]... [¶] The specific intent required for the crime of Driving or Taking a Vehicle Without Consent is the intent to deprive the owner of possession or ownership of the vehicle for any period of time.”

         In her closing argument following the court's instructions, the deputy district attorney reviewed the evidence showing that Gutierrez took and drove the rental car without the consent of either the rental car company, its owner, or Gonzalez, an authorized driver. She continued, “We know that [Gutierrez] took the car for an hour and a half the first time, and the second time he took the car for an hour and a half until he was spotted by Officer Jimenez. And as we know, [Gonzalez] testified that she kept calling the defendant, and he wouldn't answer. So it becomes clear the defendant intended to deprive [the rental car company] of possession of the car during the duration of the time that he was driving the vehicle.”

         4. Jury Deliberations, Verdict and Sentencing

         The jury began deliberating on the afternoon of February 22, 2016. The next day the jury submitted a question to the court: “Do we consider [the rental car company] as the legal owner of the vehicle and that [Gonzalez] or her father cannot give permission to drive the car?” In response the court allowed counsel to argue their positions to the jury for five minutes each. The prosecutor again argued the rental car company was the legal owner of the vehicle and reiterated the testimony of the rental car company representative, who had stated only Gonzalez and her father had consent and authorization to drive the car. The prosecutor emphasized Gonzalez's testimony she had not given Gutierrez permission to drive the car on the evening of June 26, 2015. In rebuttal Gutierrez's counsel agreed the rental car company was the legal owner of the vehicle, but argued Gonzalez was still capable of giving Gutierrez permission to drive it. The rental contract, Gutierrez's counsel argued, did not prohibit Gonzalez or her father from giving another individual permission to drive the car; instead, it only affected Gonzalez and her father's liability should they do so. Gutierrez's counsel further argued Gonzalez had given Gutierrez permission to drive the car that evening and only claimed it was stolen to protect herself from liability for the damage.

         Also on February 23, 2016 the jury asked to rewatch the dashboard camera footage and hear readback of the testimony of Gonzalez and Officer Sanchez. After the testimony was read back, the jury resumed deliberations.

         On the morning of February 24, 2016 the jury reported it had a verdict. The jury found Gutierrez guilty on all counts charged. The verdict form for count 2 specifically identified the charge as a felony violation of section 10851. At that point Gutierrez waived a jury trial as to his prior convictions and admitted all three convictions alleged in the information.

         On March 24, 2016 the trial court sentenced Gutierrez to an aggregate state prison term of four years eight months, plus a consecutive term of 544 days to be served in any penal institution.[4] ...

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