P. v. Aguirre

Filed 4/7/10 P. v. Aguirre CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas R. White, Judge. Affirmed.

Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Joseph Aguirre appeals from the judgment entered following his plea of no contest to one count of willfully inflicting harm or injury upon a child (Pen. Code,  273a, subd. (a)).[1] The trial court sentenced Aguirre to four years in state prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.[2]

Los Angeles County Sheriffs Deputy Susan Velazquez was the investigating officer in Aguirres case. As part of her investigation, Velazquez interviewed several children, including 12-year-old Rosa A. Rosa A. has a number of brothers and sisters ranging in age from a one-year-old sister to a brother who is older than she is. Aguirre is Rosa A.s stepfather.

Velazquez interviewed Rosa A. on February 20, 2008 at her school in Palmdale. Rosa A. told Velazquez that she lived with her grandmother in the Antelope Valley area between December 1, 2007 and May 1, 2008. In December 2007, on the first day of her Christmas break, Rosa A. was approached by Aguirre while she was watching television. He kissed her on the lips and attempted to put his tongue into her mouth. Rosa A. said Aguirres conduct made her feel very uncomfortable. A few weeks later, at her mothers house in Palmdale, Aguirre grabbed Rosa A., pushed her down onto the floor, straddled her and, as he held her down, again kissed her and attempted to put his tongue into her mouth. Aguirres conduct again made Rosa A. feel very uncomfortable. She told Velazquez that she was afraid of Aguirre and considered him to be a perv, or a disgusting person.

On another occasion, Rosa A. saw Aguirre disciplining her four-year-old brother by placing him on a bed, yelling at him, then putting his hand down the back of the boys pants and moving it back and forth. Rosa A. thought that Aguirre had put his finger into [her brothers] butt. On a different occasion, Aguirre had become angry with the four-year-old boy and thrown a hot lighter at him. It hit the boy in the leg, leaving a small mark.

Rosa A. had observed Aguirre use marijuana. He would frequently blow the smoke into everybodys face. On more than one occasion, Aguirre smoked marijuana in the car. He would have everyone roll up the windows, then blow out the smoke creating what Rosa A. referred to as a hotbox.

While at the school, Deputy Velazquez also had the opportunity to interview Rosa A.s sister, Lorena A. Lorena A. told the deputy that she had recently gotten into trouble and that Aguirre had spanked her six times with a belt on the back of her leg. Lorena A. also stated that when Aguirre smoked marijuana, he would blow the smoke into everyones face.

Deputy Velazquez interviewed the childrens grandmother, Rose G., at her home in Palmdale. Rose G. recalled a day in December 2007 when she walked in and saw Mr. Aguirre near [Rosa], and she just felt the situation looked really inappropriate . . . . She also recalled Aguirre kissing . . . the children regularly [on the lips], which made her feel uncomfortable. In addition, one of the younger children had told Rose G. that Aguirre had kissed her on the lips and attempted to put his tongue in her mouth. On numerous occasions throughout the month of December 2007, the child had observed Aguirre stick his tongue in the mouth of one-year-old Dolores G.

2. Procedural history.

In a six-count information filed on November 4, 2008, Aguirre was charged with four counts of willfully harming or injuring a child ( 273a, subd. (a)), and two counts of willfully committing a lewd or lascivious act upon a child under the age of 14 years ( 288, subd. (a)). It was further alleged as to count 6 that he previously had been convicted of a serious felony within the meaning of section 667, subdivision (a)(1). It was alleged as to each of the six counts that Aguirre previously had been convicted of a serious or violent felony within the meaning of the Three Strikes law ( 667,

subds. (b)-(i) & 1170.12, subds. (a)-(d)), and that he had served a prison term within the meaning of section 667.5, subdivision (b).

At proceedings held on June 18, 2009, the trial court stated that Aguirre had indicated he wished to enter a plea of no contest to count 1 of the information which alleged child abuse in violation of section 273a, subdivision (a). In exchange, the trial court was to sentence Aguirre to the mid-term of four years in state prison. The trial court indicated it had read and considered the documents in Aguirres file, including the transcript of the preliminary hearing and the probation report, and had determined that Aguirres agreement to enter an early plea constituted a factor in mitigation which supported the imposition of a mid-term sentence as opposed to the upper-term recommended by the probation officer.

After waiving his right to a court or jury trial, his right to confront and cross-examine the witnesses against him, his right to subpoena witnesses in his defense and his privilege against self-incrimination, Aguirre pleaded no contest to one count of felony child abuse in violation of section 273a, subdivision (a). The trial court found that Aguirre had expressly, knowingly, understandingly, intelligently, explicitly and voluntarily waived his constitutional rights and that his plea had been freely and voluntarily made.

The trial court sentenced Aguirre to the mid-term of four years in state prison. Aguirre was awarded presentence custody credit for 267 days actually served and 132 days of good time/work time, for a total of 399 days. The trial court imposed an $800 restitution fine ( 1202.4, subd. (b)), a stayed $800 parole revocation restitution fine ( 1202.45), a $30 criminal conviction assessment (Gov. Code,  70373) and a $20 court security fee ( 1465.8, subd. (a)(1)). In response to the Peoples motion, the trial court dismissed all remaining counts and allegations.

Aguirre filed a timely notice of appeal on August 6, 2009.

This court appointed counsel to represent Aguirre on appeal on October 22. 2009.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed February 1, 2010, the clerk of this court advised Aguirre to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On February 3, 2010, Aguirre filed a document in which he asserted, although he was in custody from March 23, 2008 to June 18, 2009, he was given presentence custody credit for time served only from October 7, 2008 to June 18, 2009. He asks that this court remedy the situation by awarding him additional presentence custody credits. However, Aguirre has failed to show that he first attempted to have his presentence custody credits modified by the trial court. (See People v. Fares (1993) 16 Cal.App.4th 954, 958.) In addition, Aguirre has failed to provide a record indicating he was in custody from March 23, 2008 to October 6, 2008. His assertion, without some reliable, independent, corroborating evidence is insufficient to warrant relief. (See In re Alvernaz (1992)

2 Cal.4th 924, 938, 945.)

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The facts have been taken from the transcript of the preliminary hearing.