People v. Gutierrez CA5

INTRODUCTION

Appellant Daniel Gutierrez was convicted of second degree murder (Pen. Code,1 § 187, subd. (a), count 1) and two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1), counts 2 & 3). In addition, the jury found true enhancements for the use of a firearm in the commission of the murder. (§§ 12022.53, subd. (a)(1), (b), (c), & (d), 12022.5, subd. (a)(1).) The trial court sentenced Gutierrez to an indeterminate prison term of 40 years to life plus a determinate term of three years. Gutierrez raises multiple claims on appeal. First, he contends that the trial court erred by excluding evidence of prior violent acts committed by Scott Martinez, the murder victim, against a woman with whom Martinez was in a dating relationship. Second, the trial court erred in denying two of his motions for a mistrial. Third, the trial court failed to instruct the jury on heat of passion voluntary manslaughter, sua sponte. Fourth, Gutierrez contends that the cumulative effect of these errors necessitates reversal of his conviction. Finally, Gutierrez contends that the trial court abused its discretion by declining to strike the firearm use enhancements applied to his murder…