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Name: People v. Gutierrez
Case #: F055925
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 05/28/2009

CALCRIM No. 2671, read literally, is flawed in that it prohibits defendant’s use of force against unreasonable or excessive force. At jury trial, appellant was convicted of battery against a custodial officer and, by court trial, four prior serious felony allegations were found true. He was sentenced to a term of 25 years to life, consecutive to a separate 25 years to life term. The appellate court rejected appellant’s claim that insufficient evidence supported the conviction. Secondly, although it agreed with appellant that CALCRIM No. 2671, as read to the jury, was erroneous because it limited defendant’s use of lawful force, the court found that reversal was not required because the record, as a whole, supported the conclusion that the verdict was based on a valid ground. Lastly, the appellate court rejected appellant’s claim that the record did not show that the trial court had the discretion to sentence the offense as a misdemeanor. Without reaching the issue as to whether the offense was a “wobbler,” the court noted that it is presumed the trial court is aware of sentencing law and appellant’s record is such that it is clear the trial court, if it had discretion to do so, would not have exercised discretion to reduce the offense to a misdemeanor.