Filed 1/6/16 P. v. Guerrero CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARTIN HERRERO GUERRERO,

Defendant and Appellant.

F069598

(Super. Ct. No. 11322)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Mariposa County. Wayne R. 

Parrish, Judge. (Retired judge of the Mariposa County Sup. Ct. assigned by the Chief 

Justice pursuant to art. VI, § 6 of the Cal. Const.) 

Rebecca P. Jones, 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 Kane, Acting P.J., Poochigian, J. and Peña, J.
2.

Appellant Martin Herrera Guerrero pled no contest to infliction of corporal injury 

on a cohabitant, with a prior, a felony (count VIII/Pen. Code, §§ 273.5, subd. (a) & 

former 273.5, subd. (c)(1))

1 and dissuading a witness, a felony (count XI/§ 136.1, subd. 

(b)(2)) and he admitted a great bodily injury enhancement (§ 12022.7, subd. (a)) in count 

VIII, a serious felony enhancement (§ 667, subd. (a)(1)) and allegations that he had a 

prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). 

Following independent review of the record pursuant to People v. Wende (1979) 

25 Cal.3d 436, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Maria M. was involved in an intimate relationship with Guerrero for six years and 

lived with him in a house in Mariposa County. On May 17, 2013, Maria was at home 

with Guerrero when he became erratic, angry and began repeatedly accusing her of 

having sexual relations with other people in the neighborhood. Eventually, Maria went 

outside and began walking away from the house. When she was about 100 yards away, 

Guerrero caught up to Maria, picked her up, and carried her back to the house. Maria 

tried to leave again but Guerrero began yelling and told her that if she left, he would pull 

her back into the house by her hair. 

On May 18, 2013, Guerrero again began repeatedly yelling at Maria. However, 

Maria was unable to leave because each time she went outside to her garden intending to 

go, Guerrero would be there. At 3:00 p.m., she tried to walk out the front door and leave 

but Guerrero told her to get back in the house. Maria responded that she did not want to. 

Guerrero grabbed her by the arm, threatened to pull her hair, and brought her back inside

the house. 

On May 19, 2013, the situation remained the same with Maria still wanting to 

leave but Guerrero not letting her and threatening to hit her and pull her back into the 

 

1 All further statutory references are to the Penal Code, unless otherwise indicated. 
3.

house by her hair. However, at 3:00 p.m. Guerrero walked with Maria to the Oasis 

Market, which was located nearby. At the market, a man let Maria use his phone. She 

called her daughter to pick her up but her daughter was unable to. When they returned to 

the house and were at the front porch, Guerrero became angry and started accusing Maria 

of calling someone other than her daughter. He also told Maria he was going to talk to 

the man who lent her the phone and find out to whom she spoke. Instead, Guerrero 

began pushing her toward the front door. Maria grabbed the porch railing and put her 

foot against a step on the porch. Suddenly, she felt pain in her left arm and her arm 

swelled. Maria let go of the railing, ran inside the house to the shower, and put cold 

water on her arm. 

After they went to bed that night, Maria got up to use the bathroom. When she 

returned, Guerrero bit her and told her he wanted to have sex, but she told him she did not 

want to. Guerrero was insistent and she eventually let him have intercourse with her 

because she did not want him to bite her again. 

On May 20, 2013, after telling Guerrero she wanted to leave, Maria went into a 

closet to get a book bag. Guerrero pushed her, took the bag from her, and threatened to 

pull her hair. Maria went outside into the garden hoping Guerrero would go to work, but 

he did not. When Guerrero went outside and asked her what she was doing, she went 

back inside the house. 

That evening, Guerrero did not like what Maria cooked for dinner. He began 

hitting Maria with a belt and he continued hitting her, even after the belt buckle broke. 

When he finished, Guerrero told Maria she could leave. Maria went out the back door 

and was at the driveway when Guerrero caught up to her, grabbed her by the hair and 

began pulling her back to the house. Maria screamed and yelled at him not to hit her 

anymore. Guerrero told Maria that he was going to have anal sex with her all night. 

Guerrero dragged Maria onto a bed in the house and sexually assaulted her. During the 

assault he stopped to look for Vaseline but after not finding any, he continued sexually
4.

assaulting her. Maria did not recall how long the assault lasted because she eventually 

passed out. 

On May 22, 2013, Maria woke up between 6:00 a.m. and 6:30 a.m. After washing 

up, she ran to the Oasis Market where she called her daughter, told her to call the police, 

and waited for them to arrive. Guerrero was arrested that day. 

During her ordeal, Maria sustained an injury to one hip and bruising on her right 

leg from being beaten with the belt and dragged. She also had bruising on her arm from 

being dragged or grabbed, bruising on her other hip, and similar injuries on one of her 

thighs. 

On March 13, 2014, the prosecutor filed a second amended information charging 

Guerrero with kidnapping with the intent to commit forcible sodomy (count I/§§ 209, 

subd. (b)(1) & 286, subd. (c)(2)(A)), forcible rape (count IV/§ 261, subd. (a)(2)), 

kidnapping (count V/§ 207, subd. (a)), false imprisonment (count VII/§ 236), infliction of 

corporal injury on a cohabitant, with a prior, (count VIII/§ 273.5, subd. (a)), assault with 

a deadly weapon (count IX/§ 245, subd. (a)(1)), two counts each of forcible sodomy 

(counts II & III/§ 286, subd. (c)(2)(A)), and disobeying a domestic relations court order 

(counts XII & XIII/§ 273.6, subd. (a)), and three counts of dissuading a witness (counts

VI, X & XI/§ 136.1, subd. (b)(1) or (b)(2)). Additionally, counts II and III alleged two 

circumstances pursuant to section 667.61, and count VIII alleged a great bodily injury 

enhancement (§ 12022.7, subd. (a)). The information also alleged a serious felony 

enhancement (§ 667, subd. (a)), five prior prison term enhancements (§ 667.5, subd. 

(b)(1)), and that Guerrero had a prior conviction within the meaning of the three strikes 

law (§ 667, subds. (b)-(i)). 

Guerrero then entered his plea as detailed above in exchange for a stipulated term 

of 17 years four months and the dismissal of the remaining counts and allegations. As 

part of his plea agreement, Guerrero also gave up his right to appeal issues “related” to 

his strike conviction and his stipulated sentence. 
5.

On April 10, 2014, the court sentenced Guerrero to the stipulated prison term of 17 

years four months as follows: an eight-year term on count VIII (the middle term of four 

years, doubled to eight years because of Guerrero’s strike conviction), a three-year great 

bodily injury enhancement in that count, a 16-month term on his conviction in count XI 

(one third the middle term of two years, doubled to 16 months because of Guerrero’s 

strike conviction), and a five year serious felony enhancement. 

On June 3, 2014, Guerrero filed a timely appeal and the trial court issued Guerrero 

a certificate of probable cause. 

Guerrero’s appellate counsel has filed a brief which summarizes the facts, with 

citations to the record, raises no issues, and asks this court to independently review the 

record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a document2filed on 

December 15, 2014, Guerrero contends: (1) he was coerced into accepting a plea bargain 

by being told that he faced a sentence of 50 years to life; (2) he did not enter his plea 

freely and voluntarily because he was taking medication at the time; (3) the purpose of 

the two letters he wrote to Maria was to let her know what to do with his tools; and, (4) 

he hit Maria with a belt in self-defense because she started hitting him first. Additionally, 

in Guerrero’s Wende brief, appellate counsel asks this court to consider whether 

Guerrero’s prior strike conviction was a serious or violent felony within the meaning of 

the three strikes law. 

Guerrero’s claim that he was pressured into accepting a plea bargain by being told 

he was facing 50 years to life cannot be resolved on this record because it relies on facts 

outside the record. However, we note that he risked being sentenced to a term of 48 

 

2 Guerrero’s response contains several documents we may not consider because it 

does not appear that they were part of the record before the trial court and they are not 

part of the record on appeal. (Pulver v. Avco Fin. Servs. (1986) 182 Cal.App.3d 622, 632

[“As a general rule, documents not before the trial court cannot be included as part of the 

record on appeal and thus must be disregarded as beyond the scope of appellate 

review.”].)
6.

years to life if he were convicted on just the rape count (count IV) and the two sodomy 

counts (counts II & III), and if the special circumstances in these last two counts were 

found true. (§ 264, § 667.6, subds. (d)(2) and (e).) Further, we conclude there is no 

merit to Guerrero’s contention that he was under the influence of medication when he 

entered his plea because in his change of plea form Guerrero acknowledged that he had 

not consumed any “drugs, alcohol, or narcotics” within 24 hours and that he was sober 

when he filled out the form. Guerrero’s contention that his prior assault conviction does 

not qualify as a strike conviction is not properly before us because as part of his 

negotiated plea, Guerrero waived his right to appeal any issues related to this conviction. 

Moreover, his claims that he hit Maria in self-defense and that he only communicated 

with Maria regarding his tools are not cognizable on appeal because they raise issues that 

go to his guilt or innocence on counts XII and XIII. (In re Chavez (2003) 30 Cal.4th 

643, 649 [issues that concern the determination of guilt or innocence are not cognizable 

following a guilty or no contest plea].)

Further, following an independent review of the record we find that no reasonably 

arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.