by Bruce McEwen, February 8, 2017
Carlos Gutierrez was charged with negligent discharge of a firearm, even though it was the first day of hunting season and Mr. Gutierrez was way up in the National Forest. If a firearm is negligently discharged in a forest and no one hears, has it happened? Someone did hear, and it did happen. The few acres left of National Forest are as crowded on opening day as any strip mall in Santa Rosa.
For readers who don’t visit the Great Outdoors regularly, allow me a few lines of nostalgic reminiscence to put the scene into perspective.
In the 1950s I dreamed of writing for Sports Afield, Field & Stream, Guns Magazine, and Fly Rod & Reel Magazine. I dreamed of getting paid to hunt and fish. I dreamed of the free big-game rifles and engraved Italian fowling pieces I would be given to test out; of the fly rods and bass boats manufacturers would buy for me to plug their products. In short, I dreamed of getting paid, along with all the lavish endorsement gifts, to do what most guys work toward their whole lives: The ultimate hunting and fishing trips that can only be achieved with the leisure and finances available to the comfortably retired, at the end of a lifetime of drudgery, scrimping, and grubbing for the Almighty Dollar, in which we all put our trust: E. Pluribis Unum, Amen.
I did end up working for Guns Magazine along the way, but by then I was long-since disillusioned about being an outdoor sports writer, for it had become obvious that all the good hunting and fishing spots were overrun and overcrowded, and that the only way to make a name for myself would be to sell-out the last few hidden venues – my own secret camps – to the maddening crowds.
And I do mean maddening. Because modern-day hunting and fishing is like visiting a madhouse. Every riverbank is lined with anglers, one every 20 feet, so thick they tangle their lines and tackle with each other every other cast! Blaze-orange hunters swarm the hillsides so thick they look like a colony of fire ants had their nest overturned! Bullets whizzing overhead and snapping through the undergrowth like a firefight in a combat zone!
So I gave up hunting and fishing. But there are still a lot of guys who want to hunt and fish, and have it in mind that once they get out there it’ll be like it is in the movies, a great place to go off in the forest and let the lead fly.
Back to Carlos Gutierrez. He pulled over to the side of the road in what he must have thought was the middle of nowhere, got out his new pistol and cranked off a few rounds at a nondescript spot on the other side of the road, just to try it out. Blam-blam-blam-blam-blam — whaaang! Most satisfying! Especially that last shot that went zinging wickedly off up the hillside!
Unfortunately for Gutierrez, the ricochet nearly hit a game warden, Lieutenant Steven White.
It was the first day of hunting season last September 18th. Three wardens were stopped to chat with some hunters on the Mendocino Pass Road (Forest Service Road No. 7, FS-7), checking for tags, licenses, and properly loaded firearms. Mr. Gutierrez and his friends were below on the M-4, the main road out of the Covelo area to the National Forest.
Lieutenant White told the court he heard what he estimated to be six-to-seven shots in rapid fire and, no doubt wondering who would use a semi-auto pistol on poor Bambi (it’s called “rifle season” for a reason, after all), he went to the edge of the drop-off to look down. That’s when the ricochet whizzed past, causing Lt. White and his men to duck and run for cover.
There was no indication or testimony about outlaw pot gardens or pot guardians in the area, which might have put the Lieutenant on higher alert. These were supposed to be animal hunters, not pot growers or pot thieves.
Perhaps this would be a good place to pause and contemplate the adrenalin rush — the primordial flight/fight impulse that always comes with a bullet zipping past one’s ear. The wardens, adrenalin pumping, must have assumed they were dealing with the careless not the criminal class, jumped in their patrol vehicles and went roaring down on Mr. Gutierrez and company.
Deputy DA Jessica McCall put up a Google Earth Map of the area, showing the M-4 road, which goes up by Anthony Peak and the FS-7, Mendocino Pass Road, and had the Lieutenant point out where he was parked, and where Mr. Gutierrez was parked.
Deputy DA McCall: “Were there a lot of hunters out that day?”
Lt. White: “Yes, quite a lot.”
Defense Attorney Robert Boyd: “Objection, your honor. The question and answer are both vague.”
Judge John Behnke: “Sustained.”
McCall: “Can you estimate how many hunters were out that day, Lieutenant White?”
White: “Well, just driving down the M-4 a short distance to FS-7, I passed at least eight vehicles, and those vehicles had anywhere from two to four hunters in each one, and there were multiple vehicles with several hunters in each that were coming up behind me. And there were several at the turn-out where we were all parked.”
McCall: “You mentioned a ricochet. Can you explain what that is?”
White: “It occurs when a bullet glances off some hard surface, such as a rock, and changes direction. It is then no longer spinning like a football, and usually it is bent out of its original aerodynamic shape, so it gives off a loud whistle. And as this sound was coming toward us; we ducked and ran back to our vehicles. We then drove down to where the subject was parked.”
White: “We wanted to stop the person from shooting anyone. Warden Brian Laird got there first. As Warden Rose and I drove down, I could see the subject coming from the back of the vehicle, a white Chevy pickup. It was a four-door, and he was coming from behind the driver’s seat.”
McCall: “And this was the same individual you had observed from above, standing in front of the vehicle and firing a pistol.”
White: “Yes, there were two other subjects with him and a Sig-Sauer semi-automatic pistol was recovered from the vehicle, behind the driver’s seat.”
McCall: “Was it loaded?”
White: “No, the chamber and magazine were empty and the slide was locked back to the rear.” (This happens automatically when the last shot is fired.) “We asked him why he was shooting and he said he was just target practicing.”
Boyd: “Objection, your honor. What about his Miranda rights?”
McCall: “Was he arrested?”
White: “No, but he was being detained.”
McCall: “Was he placed in handcuffs?”
McCall: “What did he say?”
Boyd: “Objection — Miranda.”
White: “He stated he was target shooting with his pistol.”
McCall: “Was there a target?”
White: “No. He was just shooting at a spot on the other side of the road, and part of our discussion was that he should have been shooting at a solid bank to stop the bullets, not a flat surface.”
McCall: “Was there a solid bank?”
White: “No. Only a small berm..”
McCall: “Any other indication that he’d been shooting?”
White: “There were several empty .40 caliber casings on the road in front of the vehicle and may have been others buried in the dust or underneath the vehicle.” (The Sig-Sauer holds 10 rounds.)
McCall: “Did the defendant have anything to say in response?”
White: “He was confused as to why it was a violation; and that he just wanted to shoot his firearm.”
McCall: “Was it legal?”
White: “Warden Rose ran the serial number and it came back with one digit off, which we concluded was probably a clerical error. So we only cited him for shooting from the roadway.”
Boyd: “The magazine capacity was 10 rounds. Is that legal?”
Boyd: “And the serial number being off was likely a clerical error, so it wasn’t an illegal firearm?”
Boyd: “And he was cooperative?”
Mr. Boyd picked up the Google Map and had Lt. White point out the positions again, then asked about the nearest residence.
White: “I’d say the closest ranch is about three-quarters of a mile away.”
Boyd: “Anything closer?”
White: “A campground.”
Boyd: “How far away is that?”
White: “About the same distance. Three-quarters of a mile.”
Boyd: “Any businesses within five miles?”
Boyd: “But aren’t you in Colusa County at the cross roads?”
White: “No, I don’t believe so.”
Boyd: “Can you say with any certainty?”
Lt. White hesitated. Mr. Boyd unfolded a Forest Service map like an accordion and asked the lieutenant to show him where on the map they were at the time of the incident. White squinted at the map and said he wished he had brought his glasses. Judge Behnke loaned him a pair of “cheaters,” and after some rattling of the paper the location was pinpointed.
White: “That’ll be the location, right there and here’s the campground, a little further away than I had estimated.”
Boyd: “In your report you stated there was some kind of bank there?”
White: “A small berm, not much.”
Boyd: “In terms of the ricochet, you only heard it; you couldn’t actually see it, could you?”
White: “All I can say is it was close enough it made me duck and run.”
Boyd: “You didn’t say you ducked and ran in your report, did you?”
White: “I’d have to check and see.”
Boyd: “And my client pretty much went along with the program, didn’t he?”
Boyd: “And you returned the gun to him?”
Boyd: “Are there any schools in the area?”
White: “Not that I’m aware of.”
Boyd: “Any urban areas?”
White: “There’s a ranch down the road, with several houses.”
Boyd: “Those are my only questions, thank you.”
Deputy DA McCall had submitted a chapter and verse from legal scripture about the heretic Alonzo who had fired a pistol outside a 7-11, next door to a Dunkin Doughnuts, because she was trying to up the ante to Gross Negligence, a felony, above and beyond the misdemeanor the lieutenant had cited Gutierrez for. That is why Mr. Boyd was trying to state the obvious, as it were, by pointing out that this was no urban setting, no nearby schools or businesses.
Boyd: “That’s a little different [People v. Alonzo] than the facts in this case, your honor, where we have a situation out on the National Forest.”
Judge Behnke was not persuaded.
McCall: “The prosecution has to prove three things. One, that the defendant shot a gun. Second, that he did it intentionally. Thirdly, that it could have resulted in bodily injury or death. I think the People have met that burden.”
Behnke: “I’m satisfied that he intended to fire the weapon; the question is, did it involve gross negligence, and whether a reasonable person would have known better. In this case it was hunting season and the officer said there were at least eight vehicles, each with multiple passengers, in the immediate vicinity, on a public roadway, and five vehicles parked at the intersection… So, yes, it does show gross negligence and could have resulted in death or injury, especially to the wardens who heard the ricochet go over their heads. When you are shooting from the roadway, that is both illegal and shows bad judgment. It’s the opening day of deer season and people are everywhere, so I find all the elements are met.”
Mr. Boyd suggested a reduction to a misdemeanor, since that seemed to be all the wardens wanted. Judge Behnke said he was on the fence as to that and mentioned the importance of the fact that the defendant had no prior record.
Behnke: “I’ll give both sides a couple of days to marshal their facts, and I want to hear from the wardens on that as well, so we’ll come back next week and I’ll make a determination at that time.”
All’s well that ends well, but let this be a lesson to those who plan to go out hunting next fall.
I wrote recently (AVA, 1/25/2017) in 'Murders On Hold' that Ms. Linda Thompson, Mendo Public Defender, is also handling the case of Mario Godinez-Gonzalez, in another marijuana murder near Yorkville involving co-defendants Isidro Bernal-Lopez and a third man named Edgar Contreras who has decided to testify against the other two: It was Contreras who called 911. He’d been gutshot by one of his partners in crime and left to die, after the three men had traveled from Cloverdale to rip off a dope patch and had ambushed and killed a guerilla grower, Marcos Bautista, of Cloverdale, back in the fall of 2015.
* * *
That report on pending homicides contained a mistake concerning Edgar Contreras: to wit, I reported that he’d hoped to plead out on a promise to testify against his co-defendants. I'd been told that by one of the other lawyers, Alternate Public Defender Douglas Rhoades, specifically. This was a mistake. Either Mr. Rhoades misled me or I misunderstood him, and I readily own the latter.
In fact, Edgar Contreras had no intention of taking the stand against the others —even though it strongly appears his associates had shot him and left him to die by himself out in the woods, after ambushing and killing one Malcovio Bautista on September 20th of 2015 in the golden hills above Yorkville.
My deepest apologies to Mr. Contreras for any inconvenience my mistake may have caused him. But perhaps he would like to learn that if those vatos, his road dogs, los perros del calle, if they had done that to me, I certainly would have turned State’s evidence on them — in a heartbeat! And hey, Edgar, if those vatos are still out to get you, don’t feel too lonely — I can tell by their malevolent looks at me when they come in the courthouse, they want my blood, too.
After a severe tongue-lashing to this reporter for rash stupidity, administered by Contreras’s lawyer, Jona Saxby, Contreras accepted the District Attorney’s offer to end his suspenseful ordeal and sign off on Murder in the Second Degree with a consecutive kicker that he admit joining in the firefight when they ambushed and killed the guerilla grower, the late Mr. Bautista. So for Mr. Contreras, it would amount to 15 years for the Second Degree Murder, with 10 years consecutive for “willfully and intentionally discharging a firearm that resulted in great bodily injury and death…” There would be a restitution hearing to satisfy the expense to the victim’s family, a much-reduced fine of $3,000, parole for life and, “if you are not a citizen of this country you could be deported and barred from reentry.”
Earlier in the day, as Contreras was still mulling over his situation, Judge Moorman, with each duly translated for Contreras, Ms. Saxby was afraid potential jurors might jump to the conclusion that her client was an undocumented visitor.
It would have taken five days to send out the jury questionnaires and expect even a smattering of responses. God knows if it were me, I’d be all about stalling, too.