P. v. Alvizuri

Filed 6/8/07 P. v. Alvizuri CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant Carlos Javier Alvizuri (defendant) is serving a three-year prison sentence after pleading no contest to committing a lewd act upon a child (Pen. Code, 288, subd. (a)), and later petitioning unsuccessfully to withdraw the plea.

On September 25, 2005, the four-year-old victim, her younger sister and their parents went to stay at the home that the mothers sister-in-law shared with defendant. The children were put to bed in one of the bedrooms after they fell asleep. The victims parents, the sister-in-law and defendant were eating and drinking at the home. Defendant had drunk a substantial amount of alcohol and went into the same bedroom to go to sleep. The mother went into the bedroom to remove the youngest child from the bed because defendant had fallen on top of her and woken her up.

Shortly thereafter, the mother ran into the bedroom when she heard her daughter screaming. Both defendant and the victim were naked and defendant had his head and hands between the little girls legs. Police were called and arrived soon after.

On November 16, 2005, the People charged defendant with committing a forcible lewd act on a child (count 1) (Pen. Code, 288, subd. (b)(1)), committing a lewd act on a child (count 2) (Pen. Code, 288, subd. (a)), and misdemeanor failure to register as a sex offender (count 3) (Pen. Code, 290, subd. (a)(1)(A)). The trial court later granted defendants motion to dismiss with respect to the failure to register charge. (Pen. Code, 995.)

On May 26, 2006, defendant pled no contest to count 2, with the understanding that count 1 would be dismissed and that the sentence would not exceed the low term of three years.

On September 1, 2006, defendant asked the trial court to allow him to withdraw his plea. At that time, defendants retained counsel asked to be relieved and the public defender was appointed.

On December 15, 2006, the public defender told the trial court that he was unable to find a legal basis upon which to base a motion to withdraw appellants no contest plea, and so the motion was withdrawn. The court then sentenced defendant to the agreed-upon term of three years. This appeal followed.

Upon defendants request, this court appointed counsel to represent him. Counsel has filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and requesting this court undertake a review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, and he has not done so. We have now concluded our independent review of the record and find no arguable issues.

The judgment and sentence are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

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