People v. Delacruz CA4/1 ( 2021 )

Filed 1/11/21 P. v. Delacruz CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077253
Plaintiff and Respondent,
v. (Super. Ct. No. SCD280421)
ALESSIO DELACRUZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
David M. Gill, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
After a bench trial, the court found Alessio Delacruz guilty of
attempted oral copulation of a child under the age of 14 years (Pen. Code,1
§§ 288.7, subd. (b) and 664) and committing a lewd act on a child under the
age of 14 years (§ 288, subd. (a)). Delacruz was sentenced to a determinate
1 All further statutory references are to the Penal Code.
term of nine years in prison. The court also imposed various fines, fees, and
assessments.
Delacruz filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal. 3d 436 (Wende) indicating he has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Delacruz the opportunity
to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
The incident in this case took place when Delacruz’s family returned
from an outing. Two of Delacruz’s nieces stayed at the house and the girls
slept in Delacruz’s room where there were bunkbeds.
Delacruz came to the bed of one girl and attempted to get her to touch
his exposed penis. The girl cried. The child called for her mother. She later
told her mother Delacruz told her to suck his private. A confrontation
between Delacruz and the girl’s father took place. Delacruz appeared drunk
and denied doing anything to the child.
The prosecution also produced a witness who said Delacruz tricked him
into oral copulation when he was nine years old.
Delacruz testified in his defense. He said he had been drinking heavily
on the day of the incident and has no recollection of trying to molest the child
and denied he tried to force her to orally copulate him.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review, and
in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
2
has identified the following possible issues that were considered in evaluating
the potential merits of this appeal.
1. Whether the court used the wrong burden of proof in its
instructions;
2. Whether the trial court erred in admitting evidence of a prior
molestation; and
3. Whether the trial court erred in imposing the upper term.
We have reviewed the entire record as mandated by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Delacruz on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
GUERRERO, J.
3