P. v. Gutierrez 10/9/01 CA2/7

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B145089

Case Date: 01/04/2002

Preview:Filed 10/9/01

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. RAUL GOMEZ GUTIERREZ, Defendant and Appellant.

B145089 (Super. Ct. No. VA059091)

APPEAL from a judgment of the Superior Court of Los Angeles County. C. Robert Simpson, Jr., Judge. Reversed. Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Marc E. Turchin, Acting Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Karla Cottis, Deputy Attorney General, for Plaintiff and Respondent.

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Raul Gomez Gutierrez appeals from the judgment entered following a jury trial resulting in his conviction of second-degree robbery and attempted second-degree robbery, with findings he had two prior convictions for which he served separate prison terms. He was sentenced to an aggregate term of six years in state prison. He contends: (1) the trial court erred by concluding appellant voluntarily absented himself from the proceedings without questioning appellant personally about his desire to be absent; (2) the trial court erred by failing to give the jury instructions on a lesser-included offense of attempted robbery as to victim Bustamante; and (3) it is reversible error to charge the jury with CALJIC No. 17.41.1 since the instruction impermissibly chills jury deliberations. We reverse the judgment since appellant was denied his rights to confrontation and to be present during the trial.
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FACTS AND PROCEEDINGS IN THE TRIAL COURT

The information charged appellant and codefendant Elisaldo Abrego (Abrego) with the April 7, 2000 robbery of victim Adan Sanchez (Sanchez) in count 1 and the attempted robbery of Anabel Bustamante (Bustamante) in count 2.
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I. Trial Evidence Viewed in accordance with the usual rules on appeal, the evidence established, after midnight on April 7, 2000, Anabel Bustamante and her boyfriend Adan Sanchez
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Pen. Code,

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