Metropolitan News-Enterprise


Friday, February 20, 2009


Page 1


S.C. Says Admission of 3-Year-Old’s Hearsay Statement Was Harmless




A Los Angeles Superior Court judge erred in admitting testimony that a murder victim’s 3-year-old son had implicated the child’s father two months after the killing, but the error was harmless because there was enough circumstantial evidence to sustain the conviction, the California Supreme Court ruled yesterday.

The justices unanimously affirmed the death sentence for Alfred Anthony Gutierrez, convicted of killing his ex-girlfriend and another person in separate incidents.

Gutierrez’s ex-girlfriend, Dawn Nakatani, was found strangled to death in the laundry room of her Baldwin Park residence on Oct. 1, 1996. Police arrested Gutierrez, but he was released because the case could not be presented to prosecutors within 48 hours.

Ten days later, a group of five men was fired upon with an assault rifle at a Baldwin Park gas station, killing one man and severely wounding another. Two of the men, including the wounded one, identified Gutierrez as the shooter, and the other two survivors picked the defendant’s photo out of an array and said it looked like the shooter.

Charged With Two Murders

Gutierrez was picket up again, and was eventually charged with both murders. Jurors found him guilty of the first degree murder of Mario Orellano, the attempted murder of Sergio Medina, and the second degree murder of Nakatani. They also found that the gas station shooting was gang-related and found a multiple-murder special circumstance allegation to be true.

The defendant testified that he had gone to Nakatani’s home to pick up the child for a visit, accompanied by two men whom he would not name because he feared for his life. He said that after he came out with his son, the men remained in the house, later telling him that Nakatani “went crazy” and that they “f—d her up.”

He offered an alibi for the gas station shooting.

The jury returned a death penalty verdict following the penalty phase, in which prosecutors presented evidence of Gutierrez’s two prior arrests for assaulting Nakatani, one of which resulted in a misdemeanor conviction for domestic abuse.

Los Angeles Superior Court Judge David S. Milton imposed the death sentence.

On appeal, the defense argued that Milton erred in allowing Nakatani’s sister to relate a conversation she had with her nephew two months after his mother’s death.

‘Untie My Mommy’

After she told the boy that she was going to take him to his mother’s gravesite, the youngster said he was “going to untie my mommy,” the sister testified. When she asked the boy “who told him that,” she explained, he replied that “his daddy and his mean friend tied up his mommy.”

Milton ruled that the testimony was admissible as a spontaneous utterance. But Justice Carlos Moreno, writing for the Supreme Court, said it was not spontaneous because there had been time for reflection and fabrication.

The error was harmless, however, Moreno said.

The justice explained that since the defendant could have been convicted as an aider and abettor, the evidence that he was in the house minutes before the murder; that he threatened Nakatani’s siblings—including her older brother, jockey Corey Nakatani—that they would be “next;” and that he attempted to falsify an alibi would most likely have resulted in his being convicted even if the boy’s statement had not come in.

The appeal was argued by H. Mitchell Caldwell of the Pepperdine University School of Law, by appointment, for the defendant and Deputy Attorney General Robert C. Schneider of Los Angeles for the prosecution.

The case is People v. Gutierrez, 09 S.O.S. 929.


Copyright 2009, Metropolitan News Company