California v. Gutierrez

A jury convicted defendant Salvador Gutierrez of nine counts of committing lewd and lascivious acts upon a child. In a bifurcated proceeding, the court found true that defendant had been convicted of two serious felonies and two prior strike offenses, and found one of defendant's prior convictions brought him within the One Strike law. The court thus sentenced defendant to 205 years to life in state prison. Defendant appealed, arguing: (1) his counsel was ineffective for failing to object to the use of an Arizona conviction for impeachment purposes because it was not a crime of moral turpitude; and (2) the court violated his Sixth Amendment right to a jury trial when it determined that this child molestation conviction constituted a serious felony and strike prior under California law because the court had made factual findings regarding the underlying offense. As set forth in a prior decision, the Court of Appeal rejected defendant's first argument, but agreed with his second, finding a lack of substantial evidence to support the court's finding that his Arizona conviction constituted a serious felony or strike prior under California law. The case was remanded for resentencing. The judgment was affirmed in all other respects. Upon resentencing, defendant received a term of 35 years plus 100 years to life in prison. In this case, defendant contended for the first time that his new sentence constituted cruel and unusual punishment because at the age of about 69 (when he filed his opening brief), the court's sentence meant "he will die in prison before he even complet[es] the determinate part of his sentence." Defendant contends his sentence "'shocks the conscience and offends fundamental notions of human dignity' [citation]" because he committed the offenses for which he is being punished about "10 to 15 years" ago, which punishment "was enhanced due to an offense [he] committed in 1988." The Court of Appeal determined defendant forfeited this claim by his failure to raise it either in connection with Gutierrez I or in the trial court following remand. To forestall a claim of ineffective assistance of counsel with respect to this specific issue, the Court further concluded defendant's sentence did not violate either the federal or state constitutional prohibition on cruel and/or unusual punishment View "California v. Gutierrez" on Justia Law