Full Opinion

Filed 10/23/26 P. v. Gutierrez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIXTH APPELLATE DISTRICT THE PEOPLE, H053717 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. F1900169) v. JOSE GUTIERREZ, Defendant and Appellant. Defendant Jose Gutierrez pleaded no contest to two child sexual assault crimes, and one count of possession of child pornography. The trial court sentenced Gutierrez to the stipulated term of two years concurrent to 25 years to life in prison. On appeal, Gutierrez’s appointed counsel has filed a brief citing People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case and facts but raises no issues. This court notified Gutierrez of his right to submit written argument on his own behalf within 30 days. That period has elapsed, and we have received no response from Gutierrez. Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have carefully reviewed the entire record and have determined that there are no arguable issues on appeal that would result in a disposition more favorable to Gutierrez. Accordingly, we will affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND Gutierrez and a codefendant were charged with a series of offenses resulting from a 2019 investigation into the production and distribution of child pornography. Sergeant Chris Woodrow was the representative of the Morgan Hill Police Department to the Internet Crimes Against Children Unit. He received a cybertip from the National Center for Missing and Exploited Children containing a video and a still image of suspected child pornography with an associated IP address and e-mail address. He served search warrants on Google, Charter Communications, and T-Mobile for subscriber information associated with the IP address, which led him to Gutierrez and his residence in San Martin, California. Sergeant Woodrow executed a search warrant for Gutierrez’s person, electronics, and house. As a result of statements made by Gutierrez, Sergeant Woodrow obtained the passcode to Gutierrez’s iPhone. Gutierrez admitted downloading “ ‘inappropriate stuff.’ ” The material retrieved from Gutierrez’s devices depicted thousands of child pornography images. These included Gutierrez committing various sex acts, including oral copulation and sodomy, on John Doe I, a child under the age of 10. Gutierrez’s phone also contained images of the codefendant committing various sex acts on John Doe II, a child 10 years of age or younger. Gutierrez traded the images with others worldwide. Gutierrez was held to answer following a preliminary examination and charged in an information. Defense counsel filed a motion to suppress evidence pursuant to Penal Code section 1538.51 alleging that statements were elicited from Gutierrez in violation of Miranda v. Arizona (1966) 384 U.S. 436. Counsel also filed a motion to dismiss various counts of the information under section 995 for insufficient evidence. Counsel filed a motion to sever Gutierrez’s trial from that of his codefendant. Following an evidentiary 1 All subsequent statutory references are to the Penal Code. 2 hearing the trial court denied the motion to suppress evidence. The court granted the motion to dismiss various counts for insufficiency of the evidence under section 995. The court denied the motion to sever without prejudice. Gutierrez was thereafter charged in a third amended information with the following counts: two counts of lewd or lascivious act on a child under age 14 (§ 288, subd. (a); counts 4, 26); 16 counts of lewd or lascivious act on a child by force, violence, duress, menace and fear (§ 288, subd. (b)(1); counts 5, 6, 7, 11, 15, 31, 32, 35, 36, 37, 39, 40, 41, 43, 44, 45); four counts of oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b); counts 8, 9, 10, 42); four counts of sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a); counts 12, 13, 14, 38); offering to distribute, distributing, and exchanging obscene matter depicting a person under age 18 personally engaging in and simulating sexual conduct (§ 311.1, subd. (a); count 27); and two counts of possession or control of any matter depicting sexual conduct of a person under 18 years of age (§ 311.11, subd. (c)(1); counts 46, 48). Pursuant to a plea agreement, Gutierrez then pleaded no contest to count 8 (oral copulation or sexual penetration with a child 10 years of age or younger, section 288.7, subdivision (b)), count 14 (sexual intercourse or sodomy with a child 10 years of age or younger, section 288.7, subdivision (a)), and count 46 (possession or control of any matter depicting sexual conduct of a person under 18 years of age, section 311.11, subdivision (c)(1)). After entering his no contest plea, Gutierrez sought to withdraw his plea, and to relieve his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). After conducting a hearing outside the presence of the prosecutor, the trial court denied Gutierrez’s motions. Consistent with the agreement made at the time Gutierrez entered his no contest plea, the trial court sentenced Gutierrez to 25 years to life (count 14), with 15 years to life 3 concurrent (count 8), and two years as a determinate term concurrent (count 46), for a total aggregate term of two years concurrent to 25 years to life. A general restitution order was entered, and the trial court stayed all fines and waived all fees and assessments. Gutierrez was awarded 2,450 days of actual credits and 367 days of local conduct credits, for a total of 2,817 days of credit. Gutierrez timely appealed and was granted, at his request, a certificate of probable cause. II. DISCUSSION Under the authority of Wende, supra, 25 Cal.3d 436, and Kelly, supra, 40 Cal.4th 106, we have carefully reviewed the entire record, including those portions of the record regarding Gutierrez’s motion to substitute counsel under Marsden, and his motion to withdraw his plea.2 We conclude there is no arguable issue on appeal that would result in a disposition more favorable to Gutierrez. (Wende, supra, at pp. 441-443.) However, we order one correction to the indeterminate abstract of judgment. The abstract lists Gutierrez’s sentence of 25 years to life for count 14 in box 6b, but it fails to list in box 6a the concurrent term of 15 years to life the trial court imposed for count 8. We order a correction to the abstract in this regard. III. DISPOSITION The indeterminate abstract of judgment (Judicial Council form CR-292) is ordered corrected to list in box 6a Gutierrez’s concurrent term of 15 years to life for count 8. The Clerk of the Superior Court is directed to send a copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation. The judgment is otherwise affirmed. 2 Gutierrez’s trial counsel requested a certificate of probable cause, stating: “Mr. Gutierrez brought a Smith-Marsden motion prior to sentencing. It was denied. He has strong feelings about my representation and the events leading to this case’s resolution.” 4 _______________________________ Greenwood, P. J. WE CONCUR: ___________________________________________ Danner, J. ______________________________________ Adams, J. H053717 People v. Gutierrez