People v. Gutierrez CA4/2

• Court: California Court of Appeal
• Decided: January 6, 2023
• Docket: E079681
• Status: Unpublished

Opinion

Filed 1/6/23 P. v. Gutierrez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E079681

v. (Super.Ct.No. FWV17004387)

MANUEL RAY GUTIERREZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Bridgid M.

McCann, Judge. Affirmed.

William G. Holzer, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 STATEMENT OF THE CASE

On March 18, 2019, an information charged defendant and appellant Manuel Ray

Gutierrez with murder under Penal Code1 section 187, subdivision (a) (count 1);

vehicular manslaughter while intoxicated under Penal Code section 191.5, subdivision (a)

(count 2); driving under the influence of alcohol causing injury under Vehicle Code

section 23153, subdivision (a) (count 3); and driving with a .08 percent blood content

causing injury under Vehicle code section 23153, subdivision (b) (count 4). The

information also alleged that defendant had suffered two prior serious felony convictions

under section 667, subdivision (a)(1), and two prior strike convictions under sections 667,

subdivision (b) through (i), and 1170.12, subdivisions (a) through (d).

On January 14, 2021, defendant pled no contest to count 2, and admitted that he

had personally inflicted great bodily injury, and suffered two prior serious felony

convictions and one prior strike conviction. The parties agreed that defendant would

serve 30 years in prison.

Pursuant to the plea agreement, on February 26, 2021, the trial court sentenced

defendant to the term of 30 years in prison—composed of the upper term of 10 years on

count 2, doubled to 20 years per the strike, plus two consecutive five-year terms for the

serious felony enhancements. The trial court granted defendant 2,396 days of custody

credits and imposed the standard minimum financial obligations. The remaining counts

and allegations were dismissed.

1 All further statutory references are to the Penal Code unless otherwise specified

2 On May 18, 2022, defendant filed a petition for resentencing on various grounds,

including, sections 1170.22 and 1170.1, subdivisions (a) and (b). On August 11, 2022,

the trial court construed defendant’s petition to seek relief under sections 1170.03 and

1385, subdivision (c), and denied defendant’s petition. The court first stated that it did

not have jurisdiction under section 1170.03 because more than 120 days had passed since

defendant’s sentence had been imposed, and neither the prosecution nor the Department

of Corrections and Rehabilitation had recommended resentencing defendant. Next, the

court found that it would not strike either of the two serious felony enhancements under

section 1385, even if it did have jurisdiction to consider the issues.

On August 29, 2022, defendant filed a timely notice of appeal.

STATEMENT OF FACTS 2

Around 11:45 p.m. on November 15, 2017, defendant was driving on the I-10

freeway. Defendant became involved in a four-vehicle collision that resulted in the death

of Mario F. (the victim). A California Highway Patrol officer contacted defendant at the

scene of the collision and found defendant crying uncontrollably. The officer observed

defendant to be under the influence of alcohol. Defendant admitted to drinking two 12-

ounce glasses of vodka and soda.

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

2 Pursuant to the plea agreement, the parties stipulated to a factual basis supported by the preliminary hearing transcripts and defendant’s rap sheet.

3 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of

the case, a summary of the facts, and has requested this court to undertake a review of the

entire record. Counsel “requests this Court independently review the record on appeal for

error. Appellate courts have inherent authority to review the record and issue a written

opinion if doing so would ‘best serve the interest of justice.’ [Citation.] Thus, review

would best serve the interest of justice.”

After we received the Wende brief, we offered defendant an opportunity to file a

personal supplemental brief, and he has not done so.

Recently, the California Supreme Court has held that appellate courts are not

required to independently review the record for potential errors in an appeal from the

denial of postconviction relief under section 1172.6, unless a defendant files a

supplemental brief or letter in support of the defendant’s appeal. (People v. Delgadillo

(2022) ___ Cal.5th ___, *17 [2022 Cal. Lexis 7654] (Delgadillo).) The Supreme Court

went on and stated that its holding only applied to section 1172.6 appeals: “[W]e are not

deciding Wende’s application to other postconviction contexts, which may present

different considerations.” (Id. at p. 17, fn. 5.) The Supreme Court further stated that “if

the appellate court wishes, it may also exercise its discretion to conduct its own

independent review of the record in the interest of justice.” (Id. at p. *13.)

Although Delgadillo, supra, ___ Cal.5th __, does not apply to this case because

this is not an appeal from the denial of a section 1172.6 petition, we address the recent

decision in an abundance of caution. Hence, even if Delgadillo applied to this Wende

4 appeal, we exercise our discretion to conduct our own independent review in the interest

of justice. (Id. at p. *13.)

We have independently reviewed the record for potential error. We are satisfied

that defendant’s attorney has fully complied with the responsibilities of counsel and no

arguable issue exists.

DISPOSITION

The order denying defendant’s petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER J.

We concur:

RAMIREZ P. J.

McKINSTER J.