Opinion
C073796
04-02-2018
THE PEOPLE, Plaintiff and Respondent, v. BENITO GUTIERREZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF123473)
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we note an error requiring correction of the abstract and affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
FACTUAL AND PROCEDURAL BACKGROUND
In February or March 2012, 14-year-old T.P. met defendant Benito Gutierrez while she was selling Girl Scout cookies. Defendant, who lived within half a mile of T.P.'s residence, started hiring her to babysit his two children. The two became friends, and T.P. would go defendant's house just to talk or hang out. Between February and May 2012, defendant kissed T.P. on multiple occasions during the visits and once pulled down her top, exposing her breasts.
In March or April 2012, T.P. went to a sleepover at the home of her friend, 14-year-old B.C. T.P. called defendant and invited him to come over to B.C.'s home the morning after the sleepover. B.C. previously told T.P. she was interested in having sex with defendant, which T.P. communicated to him.
Defendant arrived at B.C.'s property and was directed to a recreational vehicle (RV) parked on the property. When he got inside the RV, defendant kissed T.P. on the cheek and lips, and touched her vagina through her panties. T.P. told defendant to stop and pay attention to B.C. Defendant kissed B.C., rubbed his hand between her legs, and had intercourse with her. He then asked T.P. to orally copulate him, but she declined.
Defendant was charged with 17 counts, including first degree burglary (Pen. Code, § 459), arranging a meeting with a minor in order to engage in lewd and lascivious behavior (§ 288.4, subd. (b)), contacting a minor with intent to commit a sex offense (§ 288.3, subd. (a)), three counts of oral copulation with a minor under 16 (§ 288a, subd. (b)(2)), eight counts of lewd or lascivious acts on a 14- or 15-year-old (§ 288, subd. (c)(1)), unlawful intercourse with a minor under the age of 16 (§ 261.5, subd. (d)), and two counts of contributing to the delinquency of a minor (§ 272), with three prior prison term enhancements (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code in effect at the time of the alleged offenses.
Defendant entered a negotiated plea of no contest to first degree burglary, arranging a meeting with a minor in order to engage in lewd and lascivious behavior, and unlawful intercourse with a minor, and admitted that the dwelling was occupied at the time of the burglary (§ 667.5, subd. (c)(21)). The remaining counts and enhancements were to be dismissed and defendant was to receive a stipulated state prison term of eight years. The trial court later sentenced defendant to eight years in state prison, calculated as follows: on count 1, first degree burglary of an occupied dwelling, upper term of six years; count 2, arranging a meeting with a minor, one year (one-third the midterm) consecutive; and count 11, unlawful sexual intercourse with a minor under age 16, one year (one-third the midterm), consecutive. The court also imposed various fines and fees, ordered sex offender registration (§ 290, subd. (c)) over his objection, and was awarded 282 days' presentence credit (237 actual & 35 conduct) pursuant to section 2933.1.
The trial court granted his request for a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief raising four contentions.
I. Representation at Preliminary Hearing
Defendant first contends his appointed counsel's conduct of the preliminary hearing constituted ineffective assistance. He argues counsel met defendant only moments before the hearing and conducted the hearing without interviewing him. Defendant also argues counsel conducted the preliminary examination without examining the MDIC interviews of the victims, which formed the basis of the testimony of the deputy who was the sole witness at the preliminary hearing.
"[I]rregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination." (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) Where the alleged ineffective assistance is, as here, the failure to adequately cross examine the prosecution witness or otherwise contest the prosecution's case at the preliminary hearing, "no prejudice typically appears unless counsel's pretrial performance resulted in the loss of material evidence and caused tangible harm to the defense at trial." (People v. Millwee (1998) 18 Cal.4th 96, 121.)
The recordings of the MDIC interviews were not obtained until after defendant retained counsel, who filed a section 995 motion to set aside the information. Assuming without deciding that appointed counsel did not adequately prepare for the preliminary hearing, defendant fails to establish prejudice. Defendant does not claim that retained counsel did not have adequate opportunity to interview him before the section 995 motion. The section 995 motion does not allege inadequate preparation for the preliminary hearing, and counsel did not file a supplemental motion raising any alleged deficiencies caused by prior counsel's failure to review the recordings tapes. Defendant, who pled no contest rather than go to trial, does not show how he was prejudiced by prior counsel's allegedly inadequate preparation for the preliminary hearing. His contention is therefore without merit.
II. Advisement Regarding Consequences of the Plea
Defendant claims he was misadvised of the consequences of accepting the plea because an e-mail from the prosecutor to retained counsel inaccurately stated that defendant's maximum exposure to the charges was a 19-year prison term. Since the record contains no mention of the alleged e-mail, we cannot consider the claim on appeal. (People v. Szeto (1981) 29 Cal.3d 20, 35.)
III. Section 654
Defendant next claims section 654 prevents him from being convicted of both burglary and unlawful sexual intercourse with a minor. Section 654, subdivision (a), provides, in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." It therefore bars multiple punishment rather than multiple convictions for an act or omission. Moreover, any section 654 claim regarding defendant's sentence is forfeited because he stipulated to the sentence in his plea agreement. (Cal. Rules of Court, rule 4.412(b); People v. Hester (2000) 22 Cal.4th 290, 295.) A defendant who receives the benefit of the bargain he struck in the trial court will not be permitted to trifle with the courts by attempting to better the bargain through the appellate process. (Hester, at p. 295.)
IV. Sex Offender Registration Equal Protection Claim
At sentencing, the prosecutor suggested that sex offender registration in this case was discretionary. The trial court noted that because defendant was convicted of a violation of section 288.4, arranging a meeting with a minor in order to engage in lewd and lascivious behavior, sex offender registration is mandatory under section 290, subdivision (c). The prosecutor, after apparently consulting subdivision (c) of section 290, conceded that the court was correct and in response to the court's question about whether it needed to worry about section 290.006, governing discretionary sex offender registration, the prosecutor indicated that the court did not. Defense counsel made no comment at that time. Later during the sentencing proceedings, defense counsel made a non-specific objection to the registration requirement.
The sentencing judge was not the same judge who accepted defendant's plea. --------
Relying on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), overruled on other grounds in Johnson v. Department of Justice (2015) 60 Cal.4th 871, 888 (Johnson), defendant contends that subjecting him to sex offender registration violates his right to equal protection under the law. In Hofsheier, our high court held that, all other things being equal, those charged with sexual intercourse should be treated the same as those charged with oral copulation and that both trigger consideration for discretionary registration. (Hofsheier, at pp. 1208-1209.) Based on Hofsheier, defendant appears to argue there is no rational basis for the mandatory registration requirement the trial court indicated applies to his conviction of arranging a meeting with a minor in order to engage in lewd and lascivious behavior (§ 288.4, subd. (b)).
We first note that on the plea form encompassing his negotiated plea, defendant agreed to the following: "I understand that as a result of my plea, I will be subjected to the following additional consequences: [¶] . . . [¶] I will be required to register pursuant to Penal Code Sect. 290." Consequently, it appears that defendant agreed to sex offender registration as part of the plea. Second, no equal protection claim was raised by defendant at sentencing. Consequently, any such objection is forfeited. (People v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14 [concluding that equal protection claim made on appeal was forfeited for failure to make the objection in the trial court].) Third, Hofsheier has been overruled by our high court in Johnson, supra, 60 Cal.4th at page 888. Johnson may be given retroactive effect, where the defendant acknowledged at the time of his plea the obligation to register as a sex offender and thus did not rely on Hofsheier when entering the plea. (Johnson, at p. 889.)
In Johnson, our high court revisited Hofsheier to determine whether equal protection was violated by mandating sex offender registration for nonforcible oral copulation by an adult over 21 years with a minor under age 16. (Johnson, supra, 60 Cal.4th at p. 875.) The Johnson court reasoned that the Hofsheier court mistakenly concluded there was no rational basis for subjecting intercourse offenders and oral copulation offenders to different registration consequences. (Johnson, at p. 875.) As the Johnson court noted, in determining whether there is a rational basis, "a court may engage in ' "rational speculation" ' as to the justifications for the legislative choice" and " '[i]t is immaterial for rational basis review "whether or not" any such speculation has "a foundation in the record." ' " (Id. at p. 881.) "To mount a successful rational basis challenge, a party must ' "negative every conceivable basis" ' that might support the disputed statutory disparity." (Ibid.) Defendant has failed to negate every conceivable basis for the distinction requiring sex offender registration for a conviction of arranging a meeting with a minor in order to engage in lewd and lascivious behavior.
Rational speculation here reveals a clear rational basis for the distinction. Child predators who arrange clandestine meetings with minors by grooming them and establishing secret rendezvous, if successful, can subject a minor to multiple lewd acts over an extended period of time with little fear of being caught in the act. Furthermore, predators who prey on children in this way are seemingly highly likely reoffend. Thus, monitoring the whereabouts of such offenders after their release to the community addresses important and vital state interests of: controlling crime and preventing sex offender recidivism; protecting children, a class of victims who require protection from sex offenders; and notifying members of the public of the existence and location of sex offenders so they can take protective measures. (Johnson, supra, 60 Cal.4th at p. 877 [setting forth the important governmental interests achieved by requiring sex offender registration].)
Accordingly, we reject defendant's equal protection claim.
V. Abstract Correction
There is an error in the abstract. Defendant's presentence conduct credits were imposed pursuant to section 2933.1 because he was convicted of a violent felony, first degree burglary of an occupied dwelling. (§§ 2933.1, 667.5, subd. (c)(21).) The abstract correctly lists the amount of presentence credits, but erroneously states they were awarded pursuant to section 4019 rather than section 2933.1. We shall order a correction to the abstract.
VI. Conclusion
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an abstract of judgment reflecting that presentence conduct credits were imposed pursuant to section 2933.1 and forward a certified copy to the Department of Corrections and Rehabilitation.
MURRAY, J. We concur: RAYE, P. J. DUARTE, J.