People v. Gutierrez CA4/1

INTRODUCTION

Fernando Gutierrez and several other combatants got into a street brawl. After the fight ended, Gutierrez got into his car, steered it to face the other combatants, accelerated, and struck or otherwise injured multiple victims. He was found guilty of five counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); counts 1–5), one count of driving while under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a); count 6), and one count of hit and run resulting in injury to another person (id., § 20001, subd. (b)(1); count 7). The trial court sentenced him to eight years and eight months in prison, calculated as follows: the upper term of four years for count 5, plus consecutive one-year terms for counts 1–4 (one- third the midterm), plus a consecutive upper term of eight months for count 7. It imposed and stayed punishment for count 6 under Penal Code section 654. Gutierrez appeals the judgment of conviction. He claims the trial court violated the prohibition against the dual use of sentencing factors. In particular, he asserts the court erroneously relied on the same factors both to impose the upper term for count 5 and run the…