People v. Alvarez CA5

Filed 12/1/15 P. v. Alvarez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070065 Plaintiff and Respondent, (Super. Ct. No. BF140974A) v.

SERGIO REYES ALVAREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. Sara E. Coppin, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Franson, J. and Peña, J.

INTRODUCTION On April 6, 2012, pursuant to a plea agreement, appellant Sergio Reyes Alvarez pled no contest to one count of violating Penal Code1 section 288, subdivision (c)(1), lewd act with a child. He moved to set aside his conviction on June 25, 2014, on the basis that he had not been advised of the immigration consequences of his plea. The motion was denied. Alvarez filed a notice of appeal and a certificate of probable cause was granted. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We will affirm. FACTUAL AND PROCEDURAL SUMMARY The circumstances of the offense are taken from the probation report. In June or July of 2011, victim D.B., then 15 years old, was working for Alvarez in Alvarez’s business. One day, Alvarez drove D.B. home after work. On the drive, Alvarez began rubbing D.B.’s penis until D.B. ejaculated. D.B. never told Alvarez to stop because Alvarez had bought him a cell phone earlier that day. Two or three days later, Alvarez drove D.B. to Alvarez’s home. The two went into Alvarez’s bedroom, where Alvarez turned on a pornographic movie. Alvarez removed D.B.’s pants and began “jacking [him] off.” After a few minutes, Alvarez began “sucking [D.B.’s] penis” with his mouth. After a few more minutes, Alvarez and D.B. engaged in anal sex, with D.B. inserting his penis into Alvarez’s anus. After they finished, Alvarez drove D.B. home. D.B. claimed the encounter was consensual. Around February 10, 2012, D.B. told his mother what had happened with Alvarez because “he knew what he did was wrong and it was eating him up inside from hiding it from everyone.” D.B.’s mother notified police. Police had D.B. transported to the location where D.B. stated the sexual encounter occurred; D.B. identified Alvarez’s residence.