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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F069598
         Plaintiff and Respondent,
                                                                                  (Super. Ct. No. 11322)
                   v.

MARTIN HERRERO GUERRERO,                                                                 OPINION
         Defendant and Appellant.



                                                   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 appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-



*        Before Kane, Acting P.J., Poochigian, J. and Peña, J.
       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, subds. (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 relationship 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 when he became erratic, angry and began repeatedly accusing her of
having sexual relations with other people in the neighborhood. 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 told her that if she left, he would pull
her back into the house by her hair.
       On May 18, 2013, Guerrero again began repeatedly yelling at Maria. However,
Maria was unable to 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 inside
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.


                                             2.
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. She
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 started accusing Maria
of calling someone other than her daughter. He also told Maria he was going to talk to
the 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 railing 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 inside 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 inside the house.
       That evening, Guerrero did not like what Maria cooked for dinner. He began
hitting Maria with a belt and he continued hitting her, even after the belt buckle broke.
When he finished, Guerrero 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 and yelled at him not to hit her
anymore. Guerrero told 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 Vaseline but after not finding any, he continued sexually

                                             3.
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. Guerrero 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 commit 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 prior, (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 dissuading a witness (counts
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 conviction within the meaning of the three strikes
law (§ 667, subds. (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 his plea agreement, Guerrero also gave up his right to appeal issues “related” to
his strike conviction and his stipulated sentence.

                                               4.
       On April 10, 2014, the court sentenced Guerrero to the stipulated prison term of 17
years four months as follows: an eight-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 term 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 document2 filed on
December 15, 2014, Guerrero contends: (1) he was coerced into accepting a plea bargain
by being told that he faced a sentence 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
the two letters he wrote to Maria was to let her know what to do with his tools; and, (4)
he hit Maria with a belt in self-defense because 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 told
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 response contains several documents 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. Servs. (1986) 182 Cal.App.3d 622, 632
[“As a general rule, documents not before the trial court cannot be included as part of the
record on appeal and thus must be disregarded as beyond the scope of appellate
review.”].)


                                              5.
years to life if he were convicted on just the rape count (count IV) and the two sodomy
counts (counts II & III), and if the special circumstances in these last two counts were
found true. (§ 264, § 667.6, subds. (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 prior 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-defense 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 determination 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.




                                              6.
