P. v. Alcaraz











Filed 3/9/17 P. v. Alcaraz CA4/3









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

JULIAN ANGUIANO ALCARAZ,

Defendant and Appellant.



G053373

(Super. Ct. No. 14NF2665)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *

FACTS
Appointed counsel in this case has provided us a thorough and straightforward explication of the facts of the case. While we have reviewed the transcripts themselves before arriving at our conclusion in the case, his summary provides an efficient summary of the trial and its outcome. We adopt his statement of facts and statement of the case as part of our opinion and incorporate it below.
“Appellant lived in the garage of a house shared by multiple families. On June 21, 2014, Jessica Z. and [I.] Z. – her five-year-old daughter – were in the main house, getting ready to go to a party. While waiting for her mother to finish getting ready, [I.] Z. went to the garage. She asked appellant to put a Barbie movie on the computer, which he did. While she was watching the movie, appellant pulled her skirt down, moved her underwear to the side, touched her vulva with his finger, and licked her vulva. Afterward, appellant left the garage.
“When Jessica Z. came to look for [I.] Z., she smelled urine and asked her daughter if she had peed on herself. [I.] Z. said no but that appellant had licked her and indicated that it was on her vagina. The next day, Jessica Z. reported the incident to police.
“During trial, the jury saw and heard a C.A.S.T. (Child Abuse Services Team) interview that [I.] Z. gave on June 24, 2016. During that interview, [I.] Z. gave details of the incident, including statements that appellant had pulled her underwear to the side, licked her, and that his finger went ‘In it.’ The jury also heard a taped interview between appellant and Investigators Margie Sheehan and Lizeth Henriquez of the Orange County Sheriff’s Department on June 22, 2014. During the interview, appellant admitted to touching and licking [I.] Z. Appellant was taken into custody the same day.
“In an information filed on June 18, 2015, appellant Julian Anguiano Alcaraz was charged with the following three counts: (1) sodomy with a child 10 years or younger (Pen. Code, § 288.7, subd. (a)[1]); (2) oral copulation with a child 10 years or younger (§ 288.7, subd. (b)); and (3) sexual penetration with a child 10 years or younger (§ 288.7, subd. (b)). The three counts alleged that the acts took place between December 10, 2008 and June 21, 2014 and that appellant was over the age of 18 at the time.
“A jury acquitted appellant on count 1 (§ 288.7, subd. (a)) but found him guilty of counts 2 and 3: oral copulation with a child and sexual penetration with a child (§ 288.7, subd. (b)). On March 18, 2016, the court sentenced appellant to a mandatory 15 years to life sentence for count 2 and a concurrent 15 years to life sentence for count 3. Appellant filed a timely notice of appeal on April 5, 2016.”
DISCUSSION
Alcaraz filed an appeal, and we appointed counsel to represent him on that appeal. Counsel filed a brief which, as noted, fully set forth the facts of the case. Counsel did not argue against his client, but advised the court he could find no issues to argue on appellant’s behalf. Alcaraz was invited to express his own objections to the proceedings against him, but did not.
Under the law, this put the onus on us to review the record and see if we could find any issues that might be arguable as error. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) It should be emphasized that our search was not for issues upon which Alcaraz would prevail, but only issues upon which he might possibly prevail.
We have examined the record and found no arguable issue. This is not surprising. In fact, it is what we find in the vast majority of cases in which appellate counsel files a Wende brief. Even the most cynical observer of the appellate system would have to recognize that appellate counsel has a financial incentive for finding issues. The simple matter is counsel makes more money if he/she finds an issue that is arguable than if he/she does not. So while it sometimes happens that an appellate court will find issues after appellate counsel has thrown in the towel, it is unusual.
This case is not unusual. We have reviewed the record and applicable law that applies to the issues appellate counsel first looked at and then abandoned. None has any merit. We have searched for other issues. We found none that we think has any chance of success.
The sufficiency of the evidence issue appellate counsel turned to first was a non-starter. It is always something counsel has to consider, but is rarely supportable, and this case is no exception. Nor could we find any issue pertaining to admissibility. The C.A.S.T. interview was properly introduced, and we can see no constitutional or statutory impediment to the introduction of Alcaraz’s statement to the sheriff’s deputies. Since the latter included extremely damaging admissions, it pretty much sealed Alcaraz’s fate on the charges that resulted in convictions. The sodomy count was problematic, but the jury acquitted on that.
Nor can we find anything objectionable about the court’s sentencing. The penalty for Alcaraz’s crimes is high, but it is a penalty the Legislature has set and leaves no room for questioning the trial judge’s sentence.
We have searched for other possible issues and have found none.


We believe counsel’s decision to file a Wende brief was well-advised. The judgment is affirmed.




BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




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[1] All further statutory references are to the Penal Code.