Filed 6/20/17 P. v. Garcia CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

PRIMITIVO GARCIA,

Defendant and Appellant.

F072857

(Super. Ct. No. F15902022)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge.
Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California for Plaintiff and Respondent.
-ooOoo-



INTRODUCTION
Appellant Primitivo Garcia pled to four violations of Penal Code section 288, subdivision (a) and eight violations of section 288.7. Garcia moved to set aside his plea pursuant to section 1018; the motion was denied. The trial court imposed an aggregate, indeterminate sentence of 190 years to life in prison. Garcia filed a notice of appeal stating the appeal was based upon the sentence or other matters occurring after the plea that do not affect the validity of the plea. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In 2007 and 2009, the Sanger Police Department received reports that Garcia had molested two young girls between 2000 and 2003. The alleged victims were two sisters and the children of Garcia’s ex-girlfriend. No charges were filed at that time against Garcia based upon the alleged incidents.
On July 6, 2013, N.M., Garcia’s wife, was looking through her husband’s phone and found a picture of a young girl’s crotch; the girl was wearing pink underpants. N.M. texted the picture to her own phone. N.M. asked her oldest daughter, Vanessa C. (Vanessa), about the picture and Vanessa said it had to be one of her younger sisters. The next day, N.M. asked her two young daughters, Josie M. (Josie) and S.M., if Garcia had ever touched them; they said he did.
N.M. asked Garcia about the picture; he denied having any such picture on his phone. The two argued and Garcia struck N.M. in the face, knocking her down. Someone called 911 and Garcia fled the house. Garcia turned himself in on domestic violence charges the next day.
On July 7, 2013, N.M. contacted the Sanger Police Department to report that Josie and S.M. said Garcia touched them inappropriately. Officer Ramiro Garza first spoke with Josie and asked her if “anyone had ever given her a bad touch.” Josie responded, “Primo.” “Primo” is Garcia, Josie and S.M.’s stepfather. Garza asked where Josie had been touched and she pointed to her vaginal and breast areas; she said Garcia had also taken her clothes off. Josie began to cry heavily and Garza stopped the interview.
Garza next spoke with S.M. and asked her if “anyone [had] given her a bad touch.” S.M. responded that “Primo” had touched her vaginal and breast areas while she was clothed. When asked if she had ever seen Garcia touch her sister, she said “yes” and started to cry. S.M. said she would be more comfortable speaking with a female.
S.M. was interviewed by forensic interviewer Caroline Dower on July 10, 2013. S.M described at least five instances when Garcia touched her inappropriately. S.M. described one instance where Garcia placed his hand in her vaginal area and touched “in between” her private; it hurt “a little.” Garcia had told her not to tell anyone or he would hurt someone. Another time, Garcia came in and placed his hand under her clothes on her “butt.” He “rubbed his finger around her hole.”
S.M. also described a time when she saw Garcia touching her sister, Josie. She saw Josie lying on the sofa; Garcia had lifted Josie’s legs and was “licking her private.” Garcia had told Josie not to tell anyone or he would hurt someone.
Josie also was interviewed by Dower. Josie described being touched inappropriately by Garcia at least five times. Josie described Garcia touching her “private part” with his mouth and finger. He had “licked her private” and put his finger “in and out of her private.” He also put “one of his fingers in and out of her butt.” Another time, Garcia pulled her pants and underwear off and pulled her shirt up. Garcia then started “touching and sucking on her breasts” after which he “put his mouth on her private and started licking it.”
On May 18, 2015, a first amended information was filed, charging Garcia with 12 offenses: four counts of violating section 288, subdivision (a); two counts of violating section 288.7, subdivision (a); and six counts of violating section 288.7, subdivision (b). On May 18, the parties addressed various motions in limine, presentation of witnesses, and expert testimony on child sexual abuse accommodation syndrome. A jury trial commenced on May 19, 2015.
On May 22, 2015, Garcia entered a plea to the charges. Garcia pled to all counts based upon the facts presented to date during the trial. The felony advisement, waiver of rights, and plea form initialed and signed by Garcia also included a verification from Garcia’s attorney that he had discussed the consequences of the plea and possible defenses to the charges with his client.
Prior to accepting Garcia’s plea, the trial court verified that Garcia was aware of his constitutional rights and had waived those rights; understood the consequences of his plea, including immigration consequences and the requirement to register as a sex offender pursuant to section 290; and that Garcia had an adequate opportunity to discuss the plea with his attorney. The trial court informed Garcia that the possible sentence was 240 years to life. The trial court also solicited and obtained a waiver of appellate rights from Garcia.
On July 20, 2015, Garcia requested that his retained attorney be relieved as counsel. The trial court granted the request and appointed counsel to represent Garcia.
On October 1, 2015, Garcia, through his appointed counsel, filed a motion to withdraw his plea pursuant to section 1018. Garcia’s declaration in support of the motion stated that he was in such a state of “shock and disbelief” after listening to the trial testimony and “[did] not remember any advice” he may have been given regarding the plea. Garcia’s motion to withdraw his plea was denied on October 8, 2015.
On October 8, 2015, Garcia was sentenced pursuant to section 667.61 to an aggregate, indeterminate term of 190 years to life, consisting of terms of 25 years to life for each of counts 2, 8, 9, and 10; consecutive terms of 15 years to life for each of counts 1, 3, 4, 7, 11 and 12; and concurrent terms of 15 years to life for each of counts 5 and 6. The abstract of judgment accurately reflects the oral pronouncement.
A timely notice of appeal was filed on December 7, 2015, by Garcia’s attorney, stating the appeal is based on the sentence or other matters occurring after the plea.
On December 16, 2015, Garcia submitted a notice of appeal, indicating he wanted to appeal the validity of the plea and seeking a certificate of probable cause. The superior court notified Garcia that his notice of appeal would not be filed, as it was submitted more than 60 days after sentencing.
DISCUSSION
Appellate counsel was appointed for Garcia on March 23, 2016. Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on August 1, 2016. That same day, this court issued its letter to Garcia inviting him to submit supplemental briefing.
No supplemental brief was submitted by Garcia, however, in his request for a certificate of probable cause, he states that he made the “wrong decision,” was pressured to enter into the plea, and claims the full consequences of entering the plea were not explained to him. He asks to set aside his plea and go to trial on the charges.
The record establishes that Garcia initialed and signed a change of plea form indicating he understood the consequences of his plea; had sufficient time to discuss the consequences of the change of plea with his attorney; and verbally affirmed he understood the consequences of his change of plea when asked by the trial court.
Garcia appears to be suffering from postplea apprehension, or “buyer’s remorse,” which is not a valid basis for setting aside a plea agreement. (People v. Knight (1987) 194 Cal.App.3d 337, 344.)
Furthermore, the record does not disclose any undue pressure or duress. Garcia was under no more pressure than any other defendant faced with the option of a trial or accepting a plea agreement. Feeling pressured to enter into a plea agreement does not constitute duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
After an independent review of the record, we find no reasonable, arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.