P. v. Blythe

Filed 4/26/07 P. v. Blythe CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Jack Leon Blythe appeals from the judgment sentencing him to six years in state prison following his no contest plea to one count of rape. We appointed counsel to represent appellant. After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende(1979) 25 Cal.3d 436. On February 2, 2007, we advised appellant that he had 30 days within which to submit personally any argument that he wanted us to consider. To date, we have received no response from appellant. We have examined the entire record and are satisfied that appellant's counsel has complied fully with her responsibilities. No arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 119; People v. Wende, supra, 25 Cal.3d at p. 441.) We reach that conclusion from these facts:

According to the probation report, the victim reported to the police that she was working as a prostitute when appellant pulled up in a car and said, "I want a date." After appellant showed her a $20 bill, she got into the car to perform oral sex on him. When appellant ran a stop sign and a red light, she pulled out a can of pepper spray. Appellant pulled out a semi-automatic pistol and pointed it at her. She dropped the spray at his command.

Eventually, appellant stopped the car, pulled down the victim's pants, and had vaginal intercourse with her without a condom and against her will. He then pushed her out of the car and drove away. When the victim contacted the police, she was crying and distraught. She was taken to a medical center where personnel conducted a sexual assault examination and extracted sperm from her vagina. About two months later, the victim saw appellant driving, took down his license number, and gave it to the police. The car was registered to appellant.

In January 2005, Salinas police received a letter from the California Department of Justice Bureau of Forensic Services confirming that they had matched a sample obtained from appellant to the sperm sample recovered from the victim.

On February 15, 2006, an information was filed in the Monterey County Superior Court charging that appellant had committed one count of forcible rape on or about March 17, 1999 and alleging the use of a semi-automatic pistol. (Pen. Code,  261, subd. (a)(2), 12022.3, subd. (a).) The information further alleged that the statute of limitations had not expired as of January 1, 2001 and that the statute of limitations for the offense had been extended to a period of 10 years from the commission of the offense. (Pen. Code,  803, subd. (i).)

On May 30, 2006, appellant appeared with counsel and entered into a negotiated disposition. Appellant executed a written waiver of rights and pleaded no contest to the rape charge on the condition that the firearm enhancement would be dismissed, the prosecution would be permitted to argue at sentencing that appellant had used a firearm in the commission of the offense under People v. West (1970) 3 Cal.3d 595, and "with the understanding that Mr. Blythe denies adamantly that any gun was involved." A further condition was that the sentence would be either the six-year mid-term or the three-year mitigated term.

Appellant told the probation officer that the victim demanded more money once their sexual contact began and that he became angry. He said that her only complaint was that he did not wear a condom and he denied possessing or displaying a gun. Attached to the probation report were many letters about appellant's numerous good qualities including that he had lived with his aging parents and provided care for them up until the time of his arrest. Before sentencing, the prosecutor filed a statement in aggravation and appellant filed a response.

On July 20, 2006, appellant appeared for sentencing. The trial court said that the case "would be a low term without . . . the use of a weapon" but that "the use of the weapon is an aggravating factor." The court sentenced appellant to a state prison term of six years, representing the mid-term, ordered him to pay a restitution fine of $1,000 pursuant to Penal Code section 1202.4 and a court security fee of $20 pursuant to Penal Code section 1465.8, subdivision (a). The weapon enhancement was dismissed in accordance with the negotiated disposition.

DISPOSITION

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.