People v. Gutierrez CA5

INTRODUCTION

This case marks appellant Johnny Gabriel Gutierrez’s third appeal, which is the result of the failure of appellant (or the trial court) to inform this court that the primary issue raised in his second appeal was appropriately addressed while that appeal was pending – thus obviating the necessity for appellate review. Nonetheless, we deem it important to illustrate the factual and procedural path that brings us to this point. Hopefully, this will serve as a cautionary tale in the hope that similar miscues will not occur in future cases to avoid the waste of judicial resources. Appellant’s case began in 2005, when he was convicted of two counts of assault by means of force likely to produce great bodily injury, with enhancements for the infliction of great bodily injury and committing the offenses for the benefit of a criminal street gang. In 2007, he was sentenced to the second strike term of 27 years. In 2008, this court affirmed the judgment on direct appeal. In 2017, appellant filed a postjudgment motion alleging that he was improperly sentenced for both the great bodily injury and gang enhancements. The superior court summarily denied the motion, and appellant…