P. v. Gray

Filed 2/20/07  P. v. Gray CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Fresno County.  Gary Orozco, Judge.

            William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

            Sometime between June 9, 1990, and June 8, 1991, appellant Gray entered the bedroom of C., who was then 11 years old, and masturbated in front of her.  Sometime between June 9, 1991, and June 8, 1992, Gray entered her room five to six times while she was sleeping and orally copulated her.

            Sometime between December 30, 2000, and February 29, 2004, when T. was from 11 to 14 years old, Gray engaged in various sexual acts with T. including digital penetration and mutual oral copulation.

On December 28, 2005, based on Gray's conduct with C. the district attorney filed a complaint in case No F05909505-0 charging Gray with five counts of lewd and lascivious conduct with a child under the age of 14 (§ 288, subd. (a)).^[1]

On January 5, 2006, based on Gray's conduct with T., the district attorney filed a complaint in case No F06900042-3 charging Gray with two counts of oral copulation with a child under 14 years of age who is 10 or more years younger (§ 288a, subd. (c)(1)), and one count each of the continuous sexual abuse of a child under the age of 14 (§ 288.5), lewd and lascivious conduct with a child under the age of 14, and lewd and lascivious conduct with a child 14 or 15 years of age who is 10 or more years younger (§  288, subd. (c)(1)).

Following a preliminary hearing in each case, on January 30, 2006, the district attorney filed a consolidated information charging Gray with nine counts of lewd and lascivious conduct with a child under the age of 14 (counts 1-5, & 7-10), and one count each of the continuous sexual abuse of a child under the age of 14 (count 6), and lewd and lascivious conduct with a child 14 or 15 years of age who is 10 or more years younger (count 11).  Counts 1 through five were based on conduct involving C.  The remaining counts were based on conduct involving T.

On March 9, 2006, Gray entered into a plea bargain which provided that in exchange for his no contest plea to count 1(lewd and lascivious conduct with a child under the age of fourteen) and count 6 (the continuous sexual abuse of a child under the age of 14), he would be sentenced to the middle term of 12 years on count 6, a concurrent midterm of 6 years on count 1, and the remaining counts would be dismissed.

On March 20, 2006, the court sentenced Gray in accord his plea agreement.

Gray's appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record.  (People v. Wende (1979) 25 Cal.3d 436.)  However, in a letter filed on October 16, 2006, Gray contends that his plea bargain provided for a grant of probation.  Gray is wrong.  The transcript of the change of plea proceedings and the Felony Advisement, Waiver of Rights and Plea Form, which are part of the record, clearly indicate that Gray's plea bargain provided for a stipulated prison term of 12 years.^[2]

            Further, following independent review of the record we find that no reasonably arguable factual or legal issues exist.

            The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Cornell, J., and Dawson, J.

^[1]           All further statutory references are to the Penal Code.

^[2]           Gray's letter also asked this court to relieve his appellate counsel and appoint new counsel.  This request is denied.