Fear Not Law Articles: P. v. Clark

P. v. Clark

Filed 8/21/06 P. v. Clark CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

KORY CLARK,

Defendant and Appellant.

F048574

(Super. Ct. No. KF002767A)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice and Richard J. Oberholzer, Judges.^â€

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Kory Clark pled no contest to inflicting unjustifiable physical pain on a child (Pen. Code, § 273a, subd. (a))^[1] and admitted an enhancement allegation that in committing that offense he personally inflicted great bodily injury on a child under the age of five years (§ 12022.7, subd. (d)). Thereafter, appellant moved to withdraw his plea. The court denied the motion and imposed a prison term of nine years, consisting of the four-year upper term on the substantive offense and the five-year midterm on the enhancement.

On appeal, appellant's sole contention is that the court erred in denying appellant's motion to withdraw his plea (plea motion). We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Procedural Background

It was alleged in the first amended information filed December 23, 2004, that appellant committed, in addition to the offense of which he stands convicted, torture

(§ 206) and willful infliction of cruel or inhuman corporal punishment on a child (§ 273(d)). It was alleged appellant committed the offense of torture between November 15, 2004, and December 21, 2004.

Appellant entered his plea on May 18, 2005 (May 18). Pursuant to the plea agreement, the other two charged offenses were dismissed. On May 25, 2005, appellant filed a notice of motion to withdraw his plea.

Appellant's Plea

At the outset of the May 18 hearing, appellant affirmed he was going to plead no contest to the section 273a charge, and â€

Description	Appellant pled no contest to inflicting unjustifiable physical pain on a child and admitted an enhancement allegation that in committing that offense he personally inflicted great bodily injury on a child under the age of five years. Thereafter, appellant moved to withdraw his plea. The court denied the motion and imposed a prison term of nine years, consisting of the four-year upper term on the substantive offense and the five-year midterm on the enhancement. On appeal, appellant's sole contention is that the court erred in denying appellant's motion to withdraw his plea (plea motion). Court affirm.
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