Filed 6/5/15 P. v. Gutierrez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068426
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F10906329)
                   v.

PETE GUTIERREZ, JR.,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
         Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Cornell, Acting P.J., Poochigian, J. and Detjen, J.
       Pete Gutierrez, Jr., appeals to this court for the second time. In the first appeal
(People v. Gutierrez (July 17, 2013, F063667) [nonpub. opn.]), we remanded the matter
to the trial court for resentencing, but otherwise affirmed the judgment. This appeal is
from the sentence imposed after remand.
       Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
stating that after reviewing the record, he did not identify any arguable issues. By letter
dated May 20, 2014, we invited Gutierrez to submit additional briefing. He declined our
invitation by failing to respond to our letter. We affirm the judgment.
                      FACTUAL AND PROCEDURAL SUMMARY
       In 2011 a jury convicted Gutierrez of three counts of continuous sexual abuse of a
child involving three different children, in violation of Penal Code section 288.5,
subdivision (a).1 The jury also found true the special circumstance that Gutierrez had
committed the offenses against more than one victim. (§ 667.61, former subd. (e)(5),
now subd. (e)(4).)
       In Gutierrez’s first appeal, we concluded the trial court had erred in sentencing
Gutierrez. The evidence established Gutierrez stopped molesting the first victim by
2002, and the abuse of the second and third victims ended by the summer of 2010. The
trial court imposed a sentence pursuant to the law as it existed at the time of sentencing.
We concluded the sentence violated the ex post facto clause of the United States and
California Constitutions because the Legislature had increased the punishment for
Gutierrez’s crimes between the time he committed the crime and the time of sentencing.
       The sentence imposed after remand complies in all respects with our first opinion.
Gutierrez was sentenced to consecutive sentences of 15 years to life on the second and
third counts. The law in effect at the time the crimes were committed mandated these
sentences. (§ 667.61, former subds. (b), (e)(5).)

       1All   statutory references are to the Penal Code unless otherwise noted.


                                              2.
       As to count 1, the law at the time this crime occurred provided the trial court with
discretion to impose a sentence of either six, 12, or 16 years. (§ 288.5, subd. (a).)
Continuous sexual abuse of a child was not included in the crimes subject to enhanced
punishment pursuant to section 667.61. The trial court exercised its discretion and
imposed the aggravated sentence of 16 years. (§ 1170, subd. (b); People v. Sandoval
(2007) 41 Cal.4th 825, 845-847.)
                                      DISCUSSION
       As stated above, the matter is before us after resentencing. The sentences on
counts 2 and 3 were mandated by statute and provide no grounds for an appeal. The only
possible issue in this appeal is the trial court’s decision to impose the aggravated sentence
of 16 years on count 1. The trial court explained its decision on the record.

               “You know, I went back and reviewed the facts of this case through
       the file and even though it had been quite some time since I worked with all
       of you in trying this case it’s remarkable how the specifics do come back,
       how recollection can be refreshed, and details of this particular case are just
       as disturbing now as they were when first presented in this courtroom.

               “I did not specifically review my comments and findings in the
       original sentencing where I incorrectly imposed sentences in those three
       counts, but my recollection is that I had no disagreements with the analysis
       of circumstances in aggravation and mitigation as set forth in the original
       [probation report], that everything that I heard in this case led me to believe
       that the terms that the law provided for and the maximum were appropriate.
       I don’t see any reason to disagree with the analysis of circumstances in
       aggravation under [California Rules of Court, rule] 4.421 or in the finding
       of no circumstances in mitigation under [California Rules of Court, rule]
       4.423. But the weighing of all of these must take in consideration the fact
       that this court does have discretion to weigh those factors, even if they were
       to put me on a default position of having to start with a midterm in trying to
       find some justification to impose an aggravated term based on factual
       findings. It seems to me that they are abundantly clear in this case. But,
       quite frankly, while the terms are prescribed in Counts Two and Three, the
       discretion to be exercised as to Count One will be exercised to find that the
       circumstances in aggravation far outweigh any circumstances that could
       mitigate or somehow bring us back to a finding that this is just a midterm
       type of offense.”

                                             3.
       The probation report listed six facts in aggravation and none in mitigation. The
facts in aggravation were (1) the manner in which the crime was carried out indicated
planning, sophistication or professionalism (Cal. Rules of Court, rule 4.421(a)(8)),2
(2) Gutierrez took advantage of a position of trust or confidence to commit the offense
(rule 4.421(a)(11)), (3) Gutierrez engaged in violent conduct that indicated a serious
danger to society (rule 4.421(b)(1)), (4) Gutierrez’s prior convictions were numerous or
of increasing seriousness (rule 4.421(b)(2)), (5) Gutierrez served a prior prison term (rule
4.421(b)(3)), and (6) Gutierrez’s prior performance on probation or parole was
unsatisfactory (rule 4.421(b)(5)). Omitted from the probation report as a circumstance in
aggravation was the fact that Gutierrez’s victims were particularly vulnerable, as they
were all children when they were molested. (Rule 4.421(a)(3).) In any event, the
numerous circumstances in aggravation, and the absence of any facts in mitigation, amply
supported the trial court’s exercise of its discretion.
       Nor can the decision to impose the sentences consecutively be considered
improper. The three counts involved three different victims, occurred at different times,
and were independent of each other. (Rule 4.425(a)(1), (3).)
                                        DISPOSITION
       The judgment is affirmed.




       2All   further references to rules are to the California Rules of Court.


                                               4.
