People v. Gutierrez CA1/1

Filed 2/8/16 P. v. Gutierrez CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A144999 v. NOE GUTIERREZ, (San Francisco City & County Super. Ct. No. 223526) Gutierrez and Appellant.

Noe Gutierrez appeals from an order denying his motion to withdraw his guilty plea.1 We find no error and affirm. FACTUAL AND PROCEDURAL BACKGROUND In July 2014, the San Francisco Police Department conducted an undercover investigation in which an officer, posing online as a 14-year old girl, exchanged messages with Gutierrez, a 24-year old male. Gutierrez arranged to meet the girl at 1000 Great Highway at an appointed time for purposes of sexual contact, and he indicated that he would arrive in a white Ford pickup truck. At the appointed time, undercover officers observed Gutierrez and a companion standing next to a white Ford pickup truck. Police arrested both men and took them to the police station. At the station, Gutierrez stated he met a 14-year old girl online and had been chatting with her for several days. He admitted that he went to meet the girl and intended to take her to his home in Napa for

1 Gutierrez’s motion to withdraw his guilty plea was made under Penal Code, section 1018. All further undesignated statutory references are to the Penal Code.

1

sex. At the time of his arrest, Gutierrez was on probation for a driving under the influence (DUI) conviction and did not have a valid driver’s license. The San Francisco District Attorney filed a felony complaint charging Gutierrez with, among other things, meeting a minor for lewd purposes.2 Gutierrez appeared with his counsel at a plea hearing held on January 13, 2015. Defense counsel informed the court that Gutierrez intended to plead guilty to an amended complaint charging him with attempted unlawful sexual intercourse with a minor, in violation of sections 664 and 261.5.3 Before taking his plea, the court admonished Gutierrez on his rights and informed him that “if you are not a citizen, your plea of guilty may result in your deportation, exclusion from admission or denial of naturalization as a citizen.” Gutierrez acknowledged this advisement, and the following colloquy ensued: “COURT: If you are not a citizen you have a right to contact your embassy or your consulate before you enter your plea. GUTIERREZ: I understand. COURT: Have you had a chance to talk about the immigration consequences of a guilty plea with your lawyer . . .? GUTIERREZ: Are you asking if I talked to him about the consequences regarding my legal status? COURT: No. I’m asking if you have had a chance to speak with [counsel] about the possible immigration consequences of your plea. 2 The complaint charged Gutierrez with the following: Count I, meeting a minor for lewd purposes (a felony in violation of § 288.4, subd. (b)); Count II, arranging a meeting with a minor for lewd purposes (a misdemeanor in violation of § 288.4, subd. (a)(1)); Count III, driving with a license suspended for a DUI conviction (a misdemeanor in violation of Vehicle Code, § 14601.2, subd. (a)); and, Count IV, driving without a license (a misdemeanor in violation of Vehicle Code, § 12500, subd. (a)). 3 Section 261.5, subdivision (a) provides: “Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a ‘minor’ is a person under the age of 18 years and an ‘adult’ is a person who is at least 18 years of age.” Under the plea, Gutierrez avoided lifetime registration as a sex offender, and he must only register as a sex offender for two years.