People v. Gutierrez CA6

Filed 11/22/23 P. v. Gutierrez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050381 (San Benito County Plaintiff and Respondent, Super. Ct. No. CR-19-01372)

v.

OCTAVIO AVILA GUTIERREZ,

Defendant and Appellant.

Defendant Octavio Avila Gutierrez (Gutierrez) appeals from a judgment entered after conviction by plea. Appointed counsel for Gutierrez has filed a brief asking this court to review the record to determine whether there are any arguable issues on appeal. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Gutierrez was advised of the right to file a supplemental brief but has not done so. Finding no arguable error that would result in a disposition more favorable to Gutierrez, we affirm the judgment. I. FACTS AND PROCEDURAL BACKGROUND At the preliminary hearing, a Hollister Police Department detective testified about an October 2019 interview of 12-year-old Jane Doe1 concerning sexual molestation.

1 We refer to the victim as Jane Doe to protect her privacy interests.

During the interview, Doe explained that Gutierrez was her stepfather. Doe’s parents were divorced and for a portion of each week she lived with her mother, Gutierrez, and her sister. Doe described sexual molestation perpetrated by Gutierrez, beginning with an incident of breast touching that occurred during the 2017-2018 school year. Doe further described two incidents of penial-vaginal penetration that occurred during that same school year. Doe estimated that Gutierrez sexually abused her one or two times each month during the 2017-2018 school year. Doe also described an incident that occurred in May 2019, during which Gutierrez penetrated her vagina with his penis. Doe reported the sexual molestation to her stepmother in September 2019. Doe was afraid to report Gutierrez’s abuse because he “told her that if he were ever to end up in jail[, Doe] would never see her sister again.” In March 2020, the San Benito County District Attorney filed an information charging Gutierrez with eight sex offenses: Sexual intercourse or sodomy with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a);2 count 1), aggravated sexual assault of a child (§ 269, subd. (a)(1); counts 2 & 5), forcible rape of a child under 14 years old (§ 261, subd. (a)(2); counts 3 & 6), forcible lewd act upon a child (§ 288, subd. (b)(1); counts 4 & 7), and continuous sexual abuse (§ 288.5, subd. (a); count 8). As to all counts, the information alleged that Gutierrez committed the charged offense upon the same victim on separate occasions (§ 667.6, subd. (d)). Further, as to counts 4, 7, and 8, the information alleged that Gutierrez committed the charged offense by using force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 1203.066, subd. (a)(1)) and with substantial sexual conduct (§ 1203.066, subd. (a)(8)). In May 2022, pursuant to a negotiated plea agreement, Gutierrez pleaded no contest to count 3 (forcible rape of a child under 14 years old (§ 261, subd. (a)(2))). In exchange, the district attorney agreed to move at sentencing to dismiss the remaining