Filed 8/29/22 P. v. Gutierrez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FERNANDO GUTIERREZ,

Defendant and Appellant.

 D079300

 (Super. Ct. No. JCF002869)

APPEAL from a judgment of the Superior Court of Imperial County, 

Monica Lepe-Negrete, Judge. Affirmed.

Alex Coolman, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. 

Sevidal and James H. Flaherty III, Deputy Attorneys General, for Plaintiff 

and Respondent.
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I

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 (onethird 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 sentences for counts 1–4

consecutively. 

Gutierrez waived his argument by failing to object to the claimed 

sentencing error in the trial court. Further, he has not established that the 

trial court impermissibly relied on the same factors both to impose the upper 

term and run the terms concurrently. The judgment is affirmed. 
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II

BACKGROUND

One evening, a fight involving Gutierrez and several other people broke 

out in an El Centro neighborhood. Accounts differ as to why the skirmish 

occurred. One participant testified that Gutierrez slashed the tires to his 

truck. He claimed he confronted Gutierrez to admit fault or pay for the tires, 

but Gutierrez started the fight by pushing him and throwing a glass bottle. 

Gutierrez, on the other hand, testified that the other participants started 

punching and kicking him without provocation. In any event, the fight 

started and then ended soon afterwards. After the fight, Gutierrez walked to 

his car and the other participants retreated to a nearby home with an 

attached carport. 

Gutierrez started his car and sat in it for a few seconds. He pulled out 

of his parking spot, quickly accelerated the car, and steered it directly into

the carport where some of the fight participants and their family members 

were congregated. Multiple victims were struck by the car or otherwise 

injured. Gutierrez reversed his car and drove off.

A short time later, Gutierrez crashed his car into a light post. He was 

taken to the hospital and a blood draw was performed. Testing showed he 

had a blood alcohol concentration of 0.098 at the time of the blood draw, 

which took place more than two hours after the fight. 

III

DISCUSSION

Gutierrez challenges his sentence on grounds that the trial court 

violated the prohibition against the dual use of sentencing factors. He claims

the court erred because it purportedly relied on the same factors both to 

impose the upper term for count 5 and run the terms for counts 1–4 
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consecutively. (See People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12 (Scott) [“it 

is clear that the court cannot rely on the same fact to impose both the upper 

term and a consecutive sentence”]; Cal. Rules of Court, rule 4.425(b) [“Any 

circumstances in aggravation or mitigation ... may be considered in deciding 

whether to impose consecutive rather than concurrent sentences, except[] [¶] 

... [a] fact used to impose the upper term”].) 

Preliminarily, Gutierrez waived his argument because he did not object 

to the alleged dual-use violation in the proceedings below. “[C]omplaints 

about the manner in which the trial court exercises its sentencing discretion 

and articulates its supporting reasons cannot be raised for the first time on 

appeal,” including arguments that the court “double-counted a particular 

sentencing factor” in the sentence. (Scott, supra, 9 Cal.4th at pp. 353, 356; 

see People v. de Soto (1997) 54 Cal.App.4th 1, 7–8 (de Soto) [defendant waived 

argument concerning dual-use violation by failing to raise specific objection in 

the trial court].) We apply the waiver rule under these circumstances to 

“reduce the number of errors committed in the first instance and preserve the 

judicial resources otherwise used to correct them.” (Scott, at p. 353.)

Gutierrez contends he did not waive his dual-use argument because

prior to sentencing he filed a mitigation statement in which he argued that 

certain factors warranted imposition of the lower- or middle-term for the 

principal term and concurrent sentences for the subordinate terms. These 

arguments were neither timely nor specific; therefore, they did not preserve 

his dual-use claim for appeal. (People v. Smith (1998) 64 Cal.App.4th 1458, 

1468 [“The law generally requires not only a timely but a specific objection or 

motion to preserve an issue for appeal.”], italics omitted.) The arguments

were not timely, as they were raised well before imposition of the sentence.

(de Soto, supra, 54 Cal.App.4th at p. 9 [arguments at presentencing hearing 
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did not preserve claims of sentencing error because “objections must be raised 

contemporaneously with the pronouncement of sentence”]; accord Scott, 

supra, 9 Cal.4th at p. 351 [“courts have required parties to raise certain 

issues at the time of sentencing”], italics omitted.) And they were not 

specific, as they concerned issues unrelated to the alleged dual-use violation 

at issue in this appeal. (de Soto, at p. 9 [boilerplate objections do not preserve 

specific sentencing arguments for appeal].) For both of these reasons, the 

arguments set forth in Gutierrez’s statement in mitigation did not preserve 

his dual-use argument for appeal.

In the alternative, Gutierrez argues his argument was not waived 

because he did not have a meaningful opportunity to object to the dual-use 

violation at sentencing. The waiver rule applies only if the defendant had “a 

meaningful opportunity to object” to the trial court’s sentencing decision. 

(Scott, supra, 9 Cal.4th at p. 356.) The corollary to this rule, of course, is that 

“[i]t is only if the trial court fails to give the parties any meaningful 

opportunity to object that the [waiver] rule becomes inapplicable.” (People v. 

Gonzalez (2003) 31 Cal.4th 745, 752.)

Gutierrez had sufficient opportunity to object to the alleged dual-use 

violation. The court gave an indicated sentence prior to sentencing and 

permitted argument from both parties regarding their respective positions 

during the sentencing hearing. After denying probation, the court designated 

count 5 as the principal term and indicated its intent to impose the upper 

term. The court explained the upper term was warranted due to several 

aggravating circumstances: (1) Gutierrez showed “an absolute and callous 

disregard for human life,” (2) he “used the car as a deadly weapon,” (3) his 

actions “were volatile and brutal,” and (4) he was on probation at the time of 

his crimes. (See Cal. Rules of Court, rule 4.421(a)(1) & (2); id., 
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rule 4.421(b)(1) & (4).) Further, the court noted there were no factors in 

mitigation. In doing so, the court rejected Gutierrez’s contentions that he 

acted under extreme provocation and the victims were the initial aggressors. 

Then, the court stated its intention to run the subordinate terms 

consecutively. It pronounced its intended sentence for the remaining two 

counts (counts 6 and 7) and revoked probation in a separate criminal case. 

Thereafter, the court invited comment from counsel three times before

adjourning. The first invitation simply asked counsel to confirm the court’s 

mathematical calculations (“So his total state prison sentence is eight years, 

eight months. [¶] Am I correct, counsel, my math?”). However, the second 

and third invitations were open-ended requests for comment (the court twice 

asked, “Anything else, counsel?”). In response, the prosecutor raised a

previously-unaddressed sentencing issue—an updated custody credit

calculation. However, defense counsel did not object to the court’s supposed 

dual use of sentencing factors. Further, there is no indication the court 

discouraged or precluded defense counsel from objecting to the sentence. On 

this record, we conclude Gutierrez had a meaningful opportunity to object. 

(See People v. Boyce (2014) 59 Cal.4th 672, 731 [defendant had meaningful 

opportunity to object where court entertained arguments of counsel, 

pronounced sentence, and “adjourned after asking counsel if there was 

anything else to discuss”].)

Even if Gutierrez had preserved his argument, we would still affirm 

the judgment. As noted, the court discussed various factors warranting the 

imposition of an aggravated sentence for the principal term (count 5). It did 

not specify its reasons for running the subordinate terms (counts 1–4) 

consecutively. Gutierrez acknowledges the court did not articulate its 

reasons for running the terms consecutively. However, he argues we must
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assume the court impermissibly relied on the same factors both to impose the 

upper term and run the subordinate terms consecutively. That is not how the 

principles of appellate review operate.

“[O]n appeal a judgment is presumed correct, and a party attacking the 

judgment, or any part of it, must affirmatively demonstrate prejudicial 

error.” (People v. Garza (2005) 35 Cal.4th 866, 881.) “ ‘ “In the absence of 

such a showing, the trial court is presumed to have acted to achieve 

legitimate sentencing objectives, and its discretionary determination to 

impose a particular sentence will not be set aside on review.” ’ ” (People v.

Lee (2017) 16 Cal.App.5th 861, 866.) “ ‘Error may not be presumed from a 

silent record.’ ” (People v. Czirban (2021) 67 Cal.App.5th 1073, 1097.) 

Gutierrez has not carried his burden of establishing prejudicial error. 

The record before us does not disclose the reasons the trial court ran the 

subordinate terms consecutively. Because the record is silent with respect to 

this issue, we presume the court properly exercised its discretionary 

sentencing authority.

IV

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

DO, J.

BUCHANAN, J.