Filed 1/6/16 P. v. Guerrero 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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 appo intment by the Court of Appeal, for Defendant and
A ppellant. Office of the State Attorney General, Sa cramento, 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, subd s . (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 relatio nship 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 w hen he became erratic, angry a nd began repeatedly accus ing her of having sexual relations with othe r people in the neigh borhood. 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 to ld her that if she left, he would pull
her back in to the house by her hair. On May 18, 2013, Guerrero again began repeatedly yelling at Maria . However,
Maria was unable t o 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 in side
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 . S he 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 star ted accusing Maria of calling someone other than her daughter. He also told Maria he was going to talk to

t he 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 r ailing 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 in side 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 in side the house. That evening, Guerrero did not like what Maria cooked for dinner . He began hitting Maria with a belt and he continued hit ting her , eve n after the belt buckle broke. When he finished, Guerrer o 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 an d yell ed at him not to hit her anymore. Guerrero t old 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 Vas eline but after no t finding any, he continued sex ually4

.

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. Guerr ero 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 c ommit 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 pr ior, (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 dissuadin g a witness (count s 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 convi ction within the meaning of the three strikes law (§ 667, subd s . (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 h is 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 ei ght

- 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 ter m 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 document 2 filed on
December 15 , 2014, Guerrero contends : ( 1) he was coerced into accepting a plea bargain by being told that he faced a sent ence 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

t he two letters he wrote to Maria was to let her know what to do with his tools; a nd , ( 4)
he hit Maria with a belt in self

- defense becaus e 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 to ld 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 r esponse contains several document s 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. Serv s

. (1986) 182 Cal.App.3d 622, 632 [“As a general rule, documents not before th e 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 (count s II & II I ) , and if the special circumstances in these last two counts were found true. (§ 264, § 667.6, subd s . (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 prio r 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

- defens e 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 determinatio n 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.