P.v. Gutierrez
Filed 7/12/13 P.v. Gutierrez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE JUAN
GUTIERREZ, JR.,
Defendant and Appellant.
E056155
(Super.Ct.No. FSB904794)
OPINION
APPEAL
from the Superior Court of
Bernardino County. Kyle
S. Brodie, Judge. Affirmed with
directions.
Thien
Huong Tran, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
Defendant and
appellant Jose Juan Gutierrez, Jr., pled guilty to one count of
count of sodomy with a child 10 years old or younger (§ 288.7, subd. (a), count
2), one count of oral copulation or sexual penetration with a child 10 years
old or younger (§ 288.7, subd. (b), count 3), and 43 counts of committing a
lewd or lascivious act upon a child under the age of 14 years (§ 288, subd. (a),
counts 4-46). As to counts 2 and 3, the
jury made the special finding that those crimes occurred on or before the
victim’s tenth birthday. A trial court
sentenced defendant to 25 years to life in state
prison on count 2, a consecutive 15 years to life on count 3, a consecutive
eight months on count 1, and a consecutive two-year term on each of the
remaining counts (4-46), for a total of 40 years to life, plus a determinate
term of 86 years eight months. The court
also awarded defendant 1041 days of presentence custody credits (906 actual
plus 135 conduct) under section 2933.1.
Defendant filed a
FACTUAL
BACKGROUND
Defendant was interviewed by
the police, after waiving his Miranda
He admitted that he possessed child pornography. He also admitted that he molested his
cousin. Defendant said his cousin (the
victim) moved in with defendant’s family, they shared a room, and he started
molesting him soon thereafter. Defendant
admitted that he molested the victim about three times a week for the past
three and one-half years. The interview
was tape recorded, and the recording was played for the jury at trial.
At trial, the police
detective who had performed a forensic examination of defendant’s computer,
which the police had seized, testified.
He recovered several files containing pictures of naked children engaged
in sexual conduct, as well as child pornographic movies from defendant’s
computer.
Furthermore, at trial, the
victim testified that he moved into his aunt’s house when he was about eight
years old, and he shared a room with defendant.
The victim said defendant started touching his private parts (his
buttocks and penis) on the second day after he moved in. The victim testified that defendant orally
copulated him and sodomized him “[a] lot of times.†He said that the inappropriate acts occurred
almost every day for three and one-half years.
ANALYSIS
Defendant
appealed and, upon his request, this court appointed counsel to represent
him. Counsel has filed a brief under the
authority of
and Anders v. California (1967) 386
U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case
and several potential arguable issues:
(1) whether the age requirement for the sodomy and oral copulation
charges made the victim ineligible; (2) whether defense counsel was ineffective
for failing to object to the evidence of child pornography under Evidence Code
section 352, given that defendant pled guilty to the charge of possession of
child pornography; (3) whether defense counsel was ineffective for permitting
defendant to plead guilty to possession of child pornography; and (4) whether
the trial court abused its discretion in sentencing defendant
consecutively. Counsel has also
requested this court to undertake a review of the entire record.
We
offered defendant an opportunity to file a personal
supplemental brief, which he has not done.
Pursuant to the mandate of People
v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of
the record and find no arguable issues.
However,
we note that appellate counsel sent a letter to the superior court on March 18, 2013, requesting the abstract of judgment to be corrected
in certain respects. While the superior
court clerk amended the abstract accordingly and forwarded a copy of the
amended abstract to the Department of
Corrections and Rehabilitation, the clerk only sent a copy of the first
page of the determinate sentence abstract.
This page only lists counts 1, 4, 5, and 6. Moreover, the clerk neglected to indicate on
the amended abstract that there were additional counts listed on attached
pages, and neglected to include the attachments which listed counts 7 through
46, or counts 2 and 3 (the indeterminate sentence abstract). This appears to be a clerical error. Generally, a clerical error is one
inadvertently made. (
804, 808.) A court “has the inherent
power to correct clerical errors in its records so as to make these records
reflect the true facts.
[Citations.]†(
705.) In the interest of completeness
and accuracy, we will direct the clerk to amend the determinate sentence
abstract by marking the box stating that “[a]dditional counts are listed on
attachment†and forward a copy of the amended determinate sentence abstract
with the attachment pages listing counts 7 through 46, as well as the
indeterminate sentence abstract listing counts 2 and 3.
DISPOSITION
The
superior court clerk is directed to amend the abstract of judgment by marking
the box stating that “[a]dditional counts are listed on attachment.†The clerk is further directed to forward a
copy of the amended abstract of judgment, including the determinate sentence
abstract and its attachments, which list counts 7-46, and the indeterminate
sentence abstract, which lists counts 2 and 3, to the
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Penal Code, unless otherwise noted.
name="_ftn2" title=""> [2] Miranda
v. Arizona
(1966) 384 U.S.
436.
