Full Opinion

Filed 11/13/26 P. v. Guzman CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION SIX THE PEOPLE, 2d Crim. No. B348824 (Super. Ct. No. 24F-02615) Plaintiff and Respondent, (San Luis Obispo County) v. FRANCISCO PABLO ZARAGOZA GUZMAN, Defendant and Appellant. Francisco Pablo Zaragoza Guzman appeals from the judgment after a jury convicted him of three counts of oral copulation or sexual penetration with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)1; counts 1-3), and six counts of forcible lewd act upon a child under 14 years of age (§ 288, subd. (b)(1); counts 4-9). A jury found appellant guilty on all counts. It also found allegations that appellant committed 1 Unlabeled statutory cites are to the Penal Code. offenses against more than one victim true as to counts 5, 7, 8, and 9. (§ 667.61, subd. (j)(2).) The jury found the special allegations not true for counts 4 and 6. Immediately after the jury returned its verdict, appellant admitted the victims were particularly vulnerable within the meaning of California Rules of Court, rule 4.421, subd. (a)(3). He was sentenced to 115 years to life in prison plus a determinate term of 20 years. Appellant contends he was deprived of effective assistance of counsel. We disagree and will affirm, directing the trial court to correct clerical errors in the abstract of judgment. FACTUAL AND PROCEDURAL BACKGROUND A. Doe was born in June 2000 and her sister M. Doe was born in December 2006. Appellant was the long-term boyfriend of their paternal aunt, M.M. Appellant and M.M. have two children together, J. Doe and E. Doe. J. Doe is approximately one-year younger than M. Doe. Appellant began molesting A. Doe when she was approximately five years old. He would ask A. Doe to go into a bedroom and give him a massage, telling her that if she did not, “he would get [her] younger sister” to do it. Appellant had A. Doe put his penis in her mouth, and he would sometimes ejaculate in her mouth. When she was six or seven years old, A. Doe resisted and appellant told her that he would get her sister instead. Appellant touched A. Doe’s vaginal area with his fingers on multiple occasions. When she was less than 10 years old, he touched her thigh and vagina with his fingers and it hurt. Afterward, A. Doe noticed she was bleeding. When she was approximately 12 or 13 years old, appellant showed A. Doe a note on his phone stating “I want you so badly. Do you want me[,] yes or not [sic]?” A. Doe walked away and reported it to her mother 2 and M.M., who confronted appellant. A. Doe did not disclose the sexual abuse until she was 20 years old, first to her boyfriend, then to her mother and father. Appellant’s molestation of M. Doe began when she was less than 10 years old. On a trip to Santa Maria, he took her and J. Doe into a bathroom, pulled down M. Doe’s pants and underwear and ran his hand up her thigh to her vaginal area. Later, at M.M.’s home in Paso Robles, appellant stood in front of J. Doe and M. Doe with his penis out of his pants and underwear, pulled his shirt over M. Doe’s head, and touched her cheek with his penis. When M. Doe was between 10 and 14 years old, J. Doe and M. Doe were seated on the edge of the bed with their pants and underwear off, legs open, while appellant sat on a chair and stared at their private parts for about five minutes. On another occasion, appellant entered a locked bathroom and watched M. Doe shower. Appellant had told M. Doe not to tell her parents about the incidents, and she complied because she was scared. Eventually, M. Doe reported the abuse to her therapist, then to her mother. DISCUSSION Appellant contends that retained counsel rendered ineffective assistance of counsel because he: (i) failed to participate in the determination of jury instructions, and (ii) mentioned prejudicial and previously excluded evidence during closing argument. Ineffective Assistance of Counsel Establishing a claim of ineffective assistance of counsel requires appellant to demonstrate counsel’s performance was deficient and that he suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674]; People 3 v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel).) A claim fails upon a defective showing of either one of the Strickland components. (People v. Holt (1997) 15 Cal.4th 619, 703.) To demonstrate deficient performance, appellant must show counsel’s performance fell below an objective standard of reasonableness. (See Mickel, supra, 2 Cal.5th at p. 198.) We “‘indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance . . . .’” (People v. Earp (1999) 20 Cal.4th 826, 896.) “In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.’” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) “On direct appeal, if the record ‘“sheds no light on why counsel acted or failed to act in the manner challenged,”’ we must reject the claim ‘“unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.”’” (People v. Caro (2019) 7 Cal.5th 463, 488.) To demonstrate prejudice, appellant must show a reasonable probability that but for counsel’s deficient performance the outcome of trial would have been different. (Mickel, supra, 2 Cal.5th at p. 198.) “If a claim of ineffective assistance of counsel can be determined on the ground of lack of prejudice, a court need not decide whether counsel’s performance was deficient.” (In re Crew (2011) 52 Cal.4th 126, 150 (Crew).) 4 Appellant contends that during discussion of “Jury Instruction 207”2 on May 5, 2025, counsel expressed confusion and difficulty concentrating. Counsel said, “I’m frankly at a loss on this issue,” confessed he was “focused on closing argument,” and ultimately took “no position” on the instruction. Appellant argues that counsel “was deficient” because he was not “participating or concentrating on determination of the language of a jury instruction.” The jurors received a modified CALCRIM No. 207 instruction on May 6, 2026, stating: “It is alleged that the crimes charged in Counts 1 and 2 occurred on or between September 20, 2006 and June 7, 2008; that the crimes charged in Counts 3 and 9 occurred on or between December 7, 2012 and December 6, 2013; that the crimes charged in Counts 4 through 7 occurred on or between June 8, 2005 and June 7, 2008; and that the crime charged in Count 8 occurred on or between June 8, 2005 and June 7, 2008. [¶] The People are not required to prove that the crimes took place exactly on those days but only that they happened reasonably close to those days except as to Counts, 1, 2, and 3. As to these counts, the People must prove that these crimes took place on or after September 20, 2006.” Appellant does not assert the instruction was erroneous or claim he was prejudiced by the giving of the instruction. Indeed, “CALCRIM No. 207 accurately states the general rule that when a crime is alleged to have occurred ‘on or about’ a certain date, it is not necessary for the prosecution to prove the offense was committed on that precise date, but only that it happened 2 The parties and the court were discussing CALCRIM No. 207. 5 reasonably close to that date.” (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304, citing § 955.) The lack of prejudice defeats this claim. (See Crew, supra, 52 Cal.4th at p. 150.) Appellant next contends that counsel had no tactical purpose in telling the jury during closing argument: “In voir dire, [the prosecutor] said you might view child pornography. Where is it?” Prior to trial, the court had excluded evidence of purported child pornography found on appellant’s phone on various grounds, including Evidence Code section 352. While the reason for counsel’s strategy is not expressly stated on the record, there is at least one conceivable reason to make the statement: during closing argument counsel intended to highlight the prosecution’s failure to meet an earlier promise. It is plausible, and probable, that counsel aimed to demonstrate the People had overpromised and underdelivered. Immediately after rhetorically asking the jury “[w]here is it?” trial counsel continued: “Did [M. Doe] really have an iPad in 2017? We have no phones. Where’s the boyfriend who can verify [A.] Doe’s initial disclosure in 2020? We have no testimony from the parents or, at least, the mother of the Doe sisters to verify or dispel the alleged initial dual disclosures made to dispatch on April 4, 2023, or was it 2020 as [A.] Doe testified at trial?” Counsel’s closing argument stressed areas where there was conflicting evidence or a lack of evidence, a reasonable defense tactic. The bulk was spent discussing perceived inconsistences in the victims’ testimony, emphasizing J. Doe’s contradictory testimony, and concluding there was a “porosity of independent witnesses, [and a] porosity of physical evidence in the People’s case . . . .” The fleeting reference to child pornography was not a 6 concession that appellant possessed child pornography. Properly viewed in context, we cannot say that defense counsel had no rational tactical purpose for making the statement. Moreover, and irrespective of the wisdom of his approach, there was no prejudice to appellant. If anything, counsel’s statement was potentially more prejudicial to the prosecution. The People objected based upon a belief that the statement implied a failure to introduce evidence, when in fact the evidence of purported child pornography had been excluded. In response to the objection, the court instructed the jury: “The fact that that the subject of child pornography was discussed during jury selection is of no consequence, and has no place in your deliberations and evaluation of this case. To be clear this comment is stricken, meaning you cannot consider it.” We presume the jury understood and followed that instruction. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107.) Error in the Abstract of Judgment In reviewing the instant appellate record, we have identified errors in the abstract of judgment that were not raised by either appellant or respondent. Specifically, the abstract of judgment (dated September 19, 2025) lists the incorrect “year crime committed” (bold and capitalization omitted) information for appellant’s convictions on counts 3 and 9. The abstract of judgment erroneously states that the crimes were committed in “2006.” The “year crime committed” for both counts should be 2012-2013. We direct the trial court to correct the clerical error. (See People v. Jones (2012) 54 Cal.4th 1, 89; People v. Mitchell (2001) 26 Cal.4th 181, 185-187.) 7 DISPOSITION The judgment is affirmed. The trial court is directed to amend the abstract of judgment to state the “year crime committed” for counts 3 and 9 as “2012-2013.” The trial court clerk shall forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. NOT TO BE PUBLISHED. CODY, P. J. We concur: YEGAN, J. BALTODANO, J. 8 Catherine J. Swysen, Judge Superior Court County of San Luis Obispo ______________________________ Liberty Bell Law Group, Alan Tavelman and Michele H. Kendall, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent. 9