People v. Gutierrez CA2/8

INTRODUCTION

In 2004, a jury found Juan Carlos Gutierrez guilty of first degree premeditated murder, second degree robbery, and attempted second degree robbery, with true findings on gang enhancements and principal-use firearm enhancements. In 2021, Gutierrez filed a petition for resentencing under Penal Code1 section 1172.6. Following a hearing, the superior court denied the petition, finding that Gutierrez was not entitled to relief because he was the actual killer, he directly aided and abetted the murder, or he was a major participant in an underlying felony and acted with reckless indifference to human life. On appeal, Gutierrez argues the superior court erred in denying his petition. We conclude Gutierrez was ineligible for relief under section 1172.6 as a matter of law because his record of conviction establishes that he was not convicted of murder under a theory of imputed malice, but rather was convicted as either the actual killer or a direct aider and abettor. We accordingly affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A portion of the factual and procedural background is taken from this court’s prior opinion. (People v. Gutierrez (Jan. 7, 2009, B175361) [nonpub. opn.]…