People v. Guerra CA2/1

Filed 4/16/15 P. v. Guerra CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B257327

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA131085) v.

HENRY LOPEZ GUERRA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. John A. Torribio, Judge. Affirmed. Henry Lopez Guerra, in pro. per.; and Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. _________________________________

Following a court trial, Henry Lopez Guerra was convicted of three counts of committing a lewd or lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a))1, with a finding of substantial sexual conduct as to one count. The trial court sentenced defendant to an aggregate term of 12 years in prison. Defendant’s convictions were based upon his conduct toward N.R. from 2010 through 2013. Defendant resided with N.R., her mother, and her half-sister, who was defendant’s daughter. N.R. testified defendant touched her genitals more than five times and put his finger inside her vagina on two separate occasions. Defendant admitted to a detective he touched N.R.’s genitals once, but denied any other wrongful conduct toward her. Defendant filed a timely appeal. We appointed counsel to represent defendant on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. Defendant provided counsel with a Spanish-language supplemental brief, which counsel had translated to English and filed with this court. In his supplemental brief, defendant first argues “in the last day of the trial they tell me that the original charges they make nothing and they change them to others.” He argues this was done “because they didn’t have any sufficient proofs to find me guilty.” Defendant originally faced more serious charges: a violation of section 288.7, subdivision (b), for which the only sentence is 15-years of life, and a violation of section 288.5, subdivision (a), for which the possible terms are 6, 12, or 16 years. During voir dire, defendant agreed to waive a jury trial in exchange for the prosecutor’s amending the information by adding three counts alleging violation of section 288, subdivision (a), for which defendant’s maximum aggregate term could be 12 years, and not proceeding on the two more serious counts initially charged. Thus, defendant expressly agreed to the change in the charges and cannot complain of this on appeal.