Unreported / Non-Citable
Background
Jose Gutierrez and a codefendant were investigated in 2019 after Sergeant Chris Woodrow of the Morgan Hill Police Department 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. Search warrants led investigators to Gutierrez's residence and electronic devices. The prosecution subsequently filed numerous counts involving sexual offenses against children and the distribution or possession of material depicting minors. Before pleading, Gutierrez unsuccessfully sought suppression of his statements on Miranda grounds; following an evidentiary hearing, the trial court denied the motion to suppress evidence. The trial court dismissed some counts for insufficient evidence and denied severance without prejudice.
Under a plea agreement, Gutierrez pleaded no contest to oral copulation or sexual penetration with a child 10 years old or younger, sexual intercourse or sodomy with a child in that age group, and possession or control of matter depicting sexual conduct by a person under 18. He later moved to withdraw the plea and to replace appointed counsel under People v. Marsden. After a hearing outside the prosecutor's presence, the trial court denied both motions. The trial court sentenced Gutierrez to 25 years to life on count 14, with a concurrent 15-years-to-life term on count 8 and a concurrent two-year determinate term on count 46, for a total aggregate term of two years concurrent to 25 years to life. The court also entered a general restitution order, stayed fines, waived fees and assessments, and awarded 2,817 days of custody and conduct credit. Gutierrez timely appealed and received a requested certificate of probable cause.
The Court’s Holding
Appointed appellate counsel filed a brief under People v. Wende that described the case and facts but identified no issue. The Court of Appeal notified Gutierrez that he could submit his own written argument within 30 days, and he did not respond. Acting under Wende and People v. Kelly, the court reviewed the entire record itself, expressly including the portions concerning the Marsden motion and the attempted plea withdrawal. It concluded that no arguable issue would produce a disposition more favorable to Gutierrez. That conclusion resolved the appeal on the merits of the court's independent review rather than by treating counsel's no-issue brief as an automatic basis for affirmance.
The court nevertheless identified a clerical omission in the indeterminate abstract of judgment. Although the abstract listed the 25-years-to-life sentence for count 14 in box 6b, it omitted from box 6a the concurrent 15-years-to-life term actually imposed for count 8. The disposition ordered Judicial Council form CR-292 corrected to include that term and directed the superior court clerk to send the corrected abstract to the California Department of Corrections and Rehabilitation. The judgment was otherwise affirmed. The opinion did not change the aggregate sentence, withdraw the plea, replace counsel, or otherwise disturb the trial court's rulings.
Key Takeaways
- A Wende brief does not end appellate review; the Court of Appeal independently examined the entire record for arguable issues.
- The court specifically included Gutierrez's Marsden and plea-withdrawal proceedings within that review and found no issue warranting a more favorable disposition.
- Gutierrez received notice and 30 days to submit his own arguments, but the court received no response.
- The only relief ordered was correction of the abstract to record the concurrent 15-years-to-life sentence on count 8 that the trial court had already imposed.
- The judgment otherwise remained affirmed, with no change to the aggregate term of two years concurrent to 25 years to life.
Why It Matters
The decision illustrates the distinct functions of a no-issue appellate brief and the court's own obligation under Wende and Kelly. Counsel's inability to identify an issue did not substitute for judicial review, and the opinion identifies the potentially important plea-withdrawal and counsel-substitution proceedings as part of the record examined.
The omitted concurrent term did not produce a new sentence or a more favorable judgment, but leaving it out would have made the abstract an incomplete record of the trial court's disposition. The court therefore paired affirmance with a narrowly tailored correction and a direction to transmit the accurate abstract to the custodial agency.