P. v. Collins

Filed 8/17/06 P. v. Collins 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Riverside County. Gary B. Tranbarger, Judge. Affirmed.

Daniel H. Clifford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Douglas P. Danzig and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant was convicted by a jury of possession of an illegal weapon, i.e., a shuriken (throwing star), in violation of Penal Code section 12020, subdivision (a)(1).^[1] In a separate matter, defendant pled guilty to committing a lewd and lascivious act on a child under 14, in violation of section 288, subdivision (a). Because defendant had two prior strike convictions, the court sentenced him to a total term of 25 years to life for both matters.

On appeal, defendant challenges the denial of his motion to withdraw his guilty plea in the molestation case and the exclusion of the testimony of a defense expert in the weapon case. We will affirm.

I

PROCEDURAL BACKGROUND

A. Facts

The facts of the weapon case are not germane to the issues on appeal. The facts of the molestation case, as reflected in the preliminary hearing transcript, are as follows.

Detective Moore of the Riverside County Sheriff's Department interviewed the victim, an 11-year-old girl, in January 2003. The victim said she and defendant started out as friends. She had a crush on defendant, and they engaged in flirting.

In June 2002, the victim went to defendant's apartment to visit him. At that time, the victim was 10 years old, and defendant was 21 or 22. Defendant forced the victim to orally copulate him for about 10 minutes. After they finished, defendant pushed the victim on the bed and had vaginal sex with her. The sex was not consensual and was painful for her, causing her to bleed.

Detective Moore also interviewed the manager of the complex in which defendant's apartment was located. The manager said that in May or June 2002 she saw defendant and the victim embracing and kissing outside the laundry room on about four different occasions.

B. Disposition

On November 15, 2004, six days after defendant's conviction in the weapon case, the parties entered into a plea agreement for the disposition of both cases. Pursuant to the agreement, defendant pled guilty in the molestation case to one count of committing a lewd and lascivious act on a child under 14 years of age and admitted two prior strike convictions.^[2] In consideration, the prosecution dismissed the strike allegations in the weapon case and the remaining three counts in the molestation case. The court imposed 25 years to life for the molestation case and two years, concurrent, for the weapon case.

C. Motion to Withdraw Guilty Plea

On February 14, 2005, defendant, through new counsel, moved to withdraw his guilty plea in the molestation case. The court denied the motion. The proceedings at the hearing on the motion are described in part II.A., post.

D. Appeal

On April 4, 2005, the court granted defendant's request for a certificate of probable cause in both cases on three issues: â€