People v. Guerra CA2/1

Filed 4/16/15 P. v. Guerra CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
THE PEOPLE, B257327
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA131085)
v.
HENRY LOPEZ GUERRA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. John A.
Torribio, Judge. Affirmed.
Henry Lopez Guerra, in pro. per.; and Ava R. Stralla, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________________
Following a court trial, Henry Lopez Guerra was convicted of three counts of
committing a lewd or lascivious act on a child under the age of 14 (Pen. Code, § 288,
subd. (a))1, with a finding of substantial sexual conduct as to one count. The trial court
sentenced defendant to an aggregate term of 12 years in prison.
Defendant’s convictions were based upon his conduct toward N.R. from 2010
through 2013. Defendant resided with N.R., her mother, and her half-sister, who was
defendant’s daughter. N.R. testified defendant touched her genitals more than five times
and put his finger inside her vagina on two separate occasions. Defendant admitted to a
detective he touched N.R.’s genitals once, but denied any other wrongful conduct toward
her.
Defendant filed a timely appeal. We appointed counsel to represent defendant on
appeal. After examination of the record, counsel filed an opening brief raising no issues
and asking this court to independently review the record. Defendant provided counsel
with a Spanish-language supplemental brief, which counsel had translated to English and
filed with this court.
In his supplemental brief, defendant first argues “in the last day of the trial they
tell me that the original charges they make nothing and they change them to others.” He
argues this was done “because they didn’t have any sufficient proofs to find me guilty.”
Defendant originally faced more serious charges: a violation of section 288.7,
subdivision (b), for which the only sentence is 15-years of life, and a violation of section
288.5, subdivision (a), for which the possible terms are 6, 12, or 16 years. During voir
dire, defendant agreed to waive a jury trial in exchange for the prosecutor’s amending the
information by adding three counts alleging violation of section 288, subdivision (a), for
which defendant’s maximum aggregate term could be 12 years, and not proceeding on
the two more serious counts initially charged. Thus, defendant expressly agreed to the
change in the charges and cannot complain of this on appeal.
1 Undesignated statutory references are to the Penal Code.
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Defendant next argues “they never made the medical or physical examinations.”
There is no requirement for such examinations. The testimony of N.R., which the court
found credible, constituted substantial evidence supporting the convictions. (People v.
Young (2005) 34 Cal. 4th 1149, 1181 [“unless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient to support a
conviction”].) For the same reasons, there is no merit to defendant’s later assertion that
he fails to understand why the law permits “condemning a person even for life only
because someone says that he did it and even without proofs they find him guilty only
with words.”
Defendant also argues, “[T]hey never made me any offers; well, they changed
them until the day of the trial.” Although the prosecutor is not required to make any plea
offers, the record establishes that the prosecutor made several offers in this case, each of
which the defendant rejected.
Defendant further argues, “[W]hen they interrogated me I was under the influence
of alcohol and drugs and the lawyer never argued anything.” Nothing in the appellate
record supports this argument, not even defendant’s trial testimony. Absent any factual
support, there can be no possible merit to any claim counsel was ineffective for failing to
raise this issue.
Finally, defendant argues he “asked for a rapid trial. But they never did that.” As
far as the record reveals, defendant consented to every continuance after his preliminary
hearing. There appears to have been a delay of about six months between his arrest and
his preliminary hearing, but nothing in the appellate record indicates the cause. In any
event, defendant has not attempted to establish any prejudice resulting from that delay, as
required for a speedy trial challenge on appeal. (People v. Martinez (2000) 22 Cal. 4th
750, 769.)
After examining the entire record and considering defendant’s contentions in his
supplemental brief, we are satisfied that defendant’s attorney has fully complied with her
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responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal. 4th 106,
109–110; People v. Wende (1979) 25 Cal. 3d 436, 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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