Filed 9/2/14 P. v. Gutierrez CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B246878
                                                                            (Super. Ct. No. 1354022)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

MOSES ANTHONY GUTIERREZ,

     Defendant and Appellant.



                   Moses Anthony Gutierrez appeals a judgment following conviction of
second degree murder with a finding that he personally used a deadly weapon. (Pen.
Code, §§ 187, subd. (a), 189, 12022, subd. (b)(1).) We affirm.
                               FACTUAL AND PROCEDURAL HISTORY
                   During the late evening of May 14, 2011, Gutierrez stabbed Alex Anzures
in the heart with a folding knife that Gutierrez kept in his pocket. At the time, Gutierrez
and Anzures were party guests in the Santa Maria home of Carlos Bustamonte. Gutierrez
was "spun out, like all twacked out of his mind," from methamphetamine and marijuana
use, and Anzures was heavily intoxicated. The two men did not know each other; they
argued at the party following Anzures's comment to Gutierrez's stepsister.
                   At trial, Gutierrez testified that Anzures attempted to punch him, but
missed. Anzures then retrieved a box cutter from his pocket. In response, Gutierrez
"stabbed him one time" in claimed self-defense. Anzures stumbled from the kitchen,
held his bleeding chest, and declared that he had been "stuck" by Gutierrez.
              Despite emergency medical treatment, Anzures died at the hospital. A
forensic pathologist later performed an autopsy on Anzures's body and found a lethal
wound to the heart and three defensive-type wounds to the right hand and forearm.
                        Events Prior to and Following the Stabbing
              Earlier that evening, Gutierrez arrived at the Bustamonte residence with his
stepsister, Valerie Gutierrez, and several of her friends, including Brittney Rappuhn.1
When they arrived, Valerie and Brittney were intoxicated and Gutierrez and Brittney
were also under the influence of methamphetamine. Outside the residence, Gutierrez
appeared agitated and "thought everybody was against him." Brittney described
Gutierrez as causing "drama" with her and a "random guy." Brittney telephoned a friend
to pick her up, causing Gutierrez to become angry. He slapped Brittney twice in the face,
brandished a knife at her, and asked if she wanted to "get crazy." After arguing outside,
the group decided to attend the party.
              At the party, Anzures became suspicious because Gutierrez wore a
backpack. Anzures was "a little bit" agitated, and Bustamonte attempted to calm him.
Hostility between Gutierrez and Anzures developed, however, and soon they were
involved in an argument "about a hooker." Gutierrez then stated to Anzures: "Fuck you
fool, fuck you, what are you going to do, what what." Gutierrez stabbed Anzures
thereafter; no witnesses saw the stabbing. Gutierrez testified that he stabbed Anzures in
self-defense because Anzures "rushed" him with a box cutter in his hand.
              Gutierrez, Valerie, and Brittney fled the residence. A video camera
mounted on a nearby market recorded an image of the group running down the street at
1:47 a.m. Gutierrez later sent text messages, including to his mother, stating that he "got
somebody" and that he "just stuck some foo[l]."


1
  We shall refer to the witnesses by their first names not from disrespect, but to ease the
reader's task.
                                              2
                Santa Maria police officers arrested Gutierrez the following day. During a
search incident to his arrest, officers found a knife in Gutierrez's pants pocket. Following
advisement of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 444, an
officer interviewed Gutierrez. In a video-recorded statement, Gutierrez admitted stabbing
Anzures because Anzures "reach[ed] in his pocket and then had a little silver thing." The
stabbing occurred before Anzures withdrew a "little knife" from his pocket: "[H]e
already got stabbed. And then that's when he was already still . . . yanking on it like all
retarded and shit." Gutierrez stated that he stabbed Anzures with a kitchen knife that he
subsequently abandoned outside. At trial, the prosecutor played the recording of
Gutierrez's police interview.
                Laboratory testing of Gutierrez's clothing and a box cutter found on the
kitchen floor of the Bustamonte residence revealed DNA consistent with that of Anzures.
Gutierrez admitted that he cleaned blood from his folding knife following the stabbing.
                While the case was pending, Brittany informed Santa Maria Police
Detective Paul Flores that she had received threatening phone messages. She then
recanted her earlier statements regarding Gutierrez's threatening behavior outside the
Bustamonte residence. At trial, Brittany continued to deny that the brandishing incident
occurred. The prosecutor then introduced portions of Brittany's audio-recorded interview
stating that Gutierrez slapped her face, pulled a knife from his waistband, and brandished
it at her. Gutierrez later testified at trial and denied slapping Brittney or brandishing a
knife at her.
                                 Conviction and Sentencing
                The jury convicted Gutierrez of second degree murder and found that he
personally used a deadly weapon during commission of the crime. (Pen. Code, §§ 187,
subd. (a), 189, 12022, subd. (b)(1).) The trial court sentenced him to a prison term of 16
years to life, including a one-year term for the deadly weapon enhancement. The court
also imposed a $10,000 restitution fine, a $10,000 parole revocation restitution fine, a
$40 court security assessment, and a $30 criminal conviction assessment, ordered victim


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restitution, and awarded Gutierrez 628 days of presentence custody credit. (Id.,
§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.)
                Gutierrez appeals and contends that the trial court erred by admitting
Brittney's recorded interview into evidence.
                                         DISCUSSION
                Gutierrez argues that Brittney's statements constitute inadmissible hearsay
pursuant to Evidence Code sections 1235 and 770.2 He also claims that the statements
are improper character evidence precluded by section 1101, subdivision (a), because the
evidence tends to establish his violent nature -- that he has a propensity to assault people
and brandish a knife without reasonable provocation. Gutierrez asserts that the undue
prejudice of this inflammatory evidence outweighs its probative value. (§ 352.)
                Gutierrez contends that the improper admission of this evidence violates his
federal and California constitutional rights to due process of law and to a fair trial, and is
not harmless pursuant to any standard of review. To support his argument of prejudicial
error, he argues that the evidence of self-defense is strong in view of the lack of witnesses
to the stabbing.
                For several reasons, we reject Gutierrez's contentions.
                First, Gutierrez has forfeited certain of his appellate claims regarding
Brittney's recorded interview. An objection to offered evidence must be timely and must
make clear the specific ground. (§ 353, subd. (a); People v. Houston (2012) 54 Cal.4th
1186, 1213.) Although Gutierrez objected on other grounds (relevance of evidence of
assaults prior to that evening, lack of foundation, conclusory, hearsay, undue prejudice),
these objections were insufficient to preserve the claim that the evidence was
inadmissible pursuant to section 1101, subdivision (a). (People v. Valdez (2012) 55
Cal.4th 82, 130 [relevance and other objections at trial insufficient to preserve appellate
claim that evidence was inadmissible character evidence pursuant to section 1101].)




2
    All further statutory references are to the Evidence Code.
                                               4
              Second, forfeiture aside, the trial court did not abuse its discretion by
allowing evidence of Gutierrez's assault upon Brittney. (People v. Homick (2012) 55
Cal.4th 816, 859 [standard of review of trial court's evidentiary rulings, including
evidence of a prior inconsistent statement].) The evidence was probative regarding
Gutierrez's intent in stabbing Anzures. Section 1101, subdivision (b) permits evidence of
uncharged misconduct when relevant to establish a fact other than the defendant's
character or disposition, such as his intent in committing the crime. (People v. Edwards
(2013) 57 Cal.4th 658, 713.)
              Gutierrez was under the influence of methamphetamine and had not slept
for several days when he brandished a knife at Brittney. He was agitated,
confrontational, and engaged in "drama" outside the Bustamonte residence with Brittany
and also with a stranger. Shortly thereafter, he argued with and killed Anzures with the
same knife that he brandished at Brittany. The incident with Brittany was relevant to
prove that Gutierrez behaved aggressively and did not act in self defense, a burden that
the prosecutor was required to carry. (People v. Aranda (2012) 55 Cal.4th 342, 360.)
              The incident with Brittany also established that Gutierrez was armed with a
folding knife, the same knife that he used to stab Anzures. During his police interview,
Gutierrez stated that he grabbed a kitchen knife to stab Anzures and that he abandoned
the knife in the landscaping when he fled the residence.
              The trial court also did not abuse its discretion pursuant to section 352.
(People v. Suff (2014) 58 Cal.4th 1013, 1066 [standard of review of trial court's ruling
pursuant to section 352].) The circumstances of the assault upon Brittany were less
inflammatory than the murder of Anzures. (People v. Edwards, supra, 57 Cal.4th 658,
713; People v. Ewoldt (1994) 7 Cal.4th 380, 405.) Evidence is substantially more
prejudicial than probative if it poses an intolerable risk to the fairness of the proceedings
or the reliability of the outcome. (Edwards, at p. 713.) An intolerable risk is not present
here.
              Moreover, the trial court properly admitted evidence of Brittney's interview
statements pursuant to the prior inconsistent statement exception to the hearsay rule.

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(§§ 1235, 770; People v. Homick, supra, 55 Cal.4th 816, 859.) A statement by a witness
that is inconsistent with his trial testimony is admissible to establish the truth of the
matter asserted pursuant to the requirements in sections 1235 and 770. (Ibid.)
Inconsistency in effect, such as evasive testimony, also satisfies the test for admitting a
prior statement. (Ibid.) At trial, Brittney expressly denied and provided evasive
responses regarding the brandishing incident. Her interview statements thus fall within
the statutory hearsay exception of section 1235.
              People v. Sam (1969) 71 Cal.2d 194, and Bowen v. Ryan (2008) 163
Cal.App.4th 916, upon which Gutierrez relies, are distinguishable. In Sam, the trial court
improperly permitted evidence of defendant's two drunken brawls to prove that the
charged murder was not committed in self-defense. The brawls occurred within two
years of the charged crime and their relevance to modus operandi, common scheme, or
plan was "tenuous at best." (Id. at p. 206.) In Bowen, a child patient filed an action
against a dentist alleging that he was "choked . . . and shoved" during treatment. (Id. at
p. 918.) Bowen concluded that the trial court erred by admitting evidence that the dentist
had mistreated nine other children because the evidence did not establish the existence of
a common plan. (Id. at pp. 924-925.) Here Gutierrez's assault on Brittney reflected his
"spun out" and "twacked out" mental state at the time he joined the party and confronted
Anzures.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                            GILBERT, P.J.
We concur:


              YEGAN, J.



              PERREN, J.

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                              Edward H. Bullard, Judge

                        Superior Court County of Santa Barbara

                         ______________________________


             Jonathan E. Demson for Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, for Plaintiff and Respondent.




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