Filed 1/11/21 P. v. Delacruz CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ALESSIO DELACRUZ,

Defendant and Appellant. D077253

(Super. Ct. No. SCD280421)

APPEAL from a judgment of the Superior Court of San Diego County,

David M. Gill, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

After a bench trial, the court found Alessio Delacruz guilty of

attempted oral copulation of a child under the age of 14 years (Pen. Code, 1

§§ 288.7, subd. (b) and 664) and committing a lewd act on a child under the

age of 14 years (§ 288, subd. (a)). Delacruz was sentenced to a determinate

1 All further statutory references are to the Penal Code.2

term of nine years in prison. The court also imposed various fines, fees, and

assessments.

Delacruz filed a timely notice of appeal.

Appellate counsel has filed a brief pursuant to People v. Wende (1979)

25 Cal.3d 436 ( Wende ) indicating he has not been able to identify any

arguable issues for reversal on appeal. Counsel asks the court to re view the

record for error as mandated by Wende . We offered Delacruz the opportunity

to file his own brief on appeal, but he has not responded.

STATEMENT OF FACTS

The incident in this case took place when Delacruz’s family returned

from an outing. Two of Delacruz’s nieces stayed at the house and the girls

slept in Delacruz’s room where there were bunkbeds.

Delacruz came to the bed of one girl and attempted to get her to touch

his exposed penis. The girl cried. The child called for her mother. She la ter

told her mother Delacruz told her to suck his private. A confrontation

between Delacruz and the girl’s father took place. Delacruz appeared drunk

and denied doing anything to the child.

The prosecution also produced a witness who said Delacruz tri cked him

into oral copulation when he was nine years old.

Delacruz testified in his defense. He said he had been drinking heavily

on the day of the incident and has no recollection of trying to molest the child

and denied he tried to force her to orall y copulate him.

DISCUSSION

As we have noted, appellate counsel has filed a Wende brief and asks

the court to review the record for error. To assist the court in its review, and

in compliance with Anders v. California (1967) 386 U.S. 738 ( Anders ), couns el3

has identified the following possible issues that were considered in evaluating

the potential merits of this appeal.

1. Whether the court used the wrong burden of proof in its

instructions;

2. Whether the trial court erred in admitting evidence of a prior

molestation; and

3. Whether the trial court erred in imposing the upper term.

We have reviewed the entire record as mandated by Wende and Anders.

We have not discovered any arguable issues for reversal on appeal.

Competent counsel has represent ed Delacruz on this appeal.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

GUERRERO, J.