Filed 6/1/18 P. v. Merino CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY MERINO,
Defendant and Appellant.

A152415

(San Mateo County
Super. Ct. No. 17NF004701A)


Anthony Merino (appellant) appeals from judgment sentencing him to prison for two years and eight months after he pled no contest to two counts of indecent exposure under Penal Code section 314, subdivision (1), with a prior conviction under section 288. His court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable issues and affirm.
I. FACTS AND PROCEDURAL HISTORY
On March 27, 2017, in a public park, appellant exposed himself to a 19-year old woman and followed her until she ran away. Two days later, he exposed himself to a 12-year-old girl as she was walking home from school. He grabbed her arm but she punched him and ran away. Appellant had been convicted of lewd acts under section 288 in 2004.
Appellant was charged by felony complaint with one count of annoying or molesting a child under section 647.6, subdivision (c)(2) and four counts of indecent exposure with a qualifying prior conviction under section 314, subdivision (1). Four of the counts arose from the two incidents described above; the remaining count arose from an incident on November 19, 2016, in which appellant exposed himself to a female jogger. Appellant pled no contest to two of the indecent exposure counts arising from the two incidents described above and it was agreed his sentence would be a two year, eight month “top.” The remaining counts were dismissed.
The probation officer recommended a denial of probation and a prison sentence. He noted in his report that appellant had scored a “7” on the STATIC-99, an actuarial instrument used to predict an offender’s likelihood of recidivism, which placed appellant at a “well above average” risk of reoffending.
The court sentenced appellant to prison for two years eight months, consisting of the two-year middle term on one count and an eight-month consecutive term (one-third the middle term) on the other. It observed that appellant’s acts were compulsive in nature and noted that his conduct with respect to the 12-year-old victim was “strikingly similar” to his 2004 prior conviction for lewd conduct. “That causes the Court great concern. I think that it’s going to take you some time to address these compulsive behaviors, and I have significant public-safety concerns where this is involved.”
II. DISCUSSION
As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that appointed counsel has filed a Wende/Anders brief raising no issues, that appellant has been advised of his right to file a supplemental brief, and that appellant did not file such a brief. We have independently reviewed the entire record for potential error and find none.
Appellant did not seek a certificate of probable cause and is therefore precluded from raising any issues that challenge the validity of his plea. (§ 1237.5; People v. Cuevas (2008) 44 Cal.4th 374, 379.) Because appellant was sentenced to a term that fell within the sentencing lid specified in the agreement, the scope of the issues he may raise concerning his sentence is circumscribed by the lack of a certificate of probable cause:
“ ‘[I]nclusion of a sentence lid implies a mutual understanding and agreement that the trial court has the authority to impose the specified maximum sentence and preserves only the defendant’s right to urge that the trial court should or must exercise its discretion in favor of a shorter term.’ ” (Cuevas, at p. 380.)
The trial court did not abuse its broad discretion in denying probation. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1531.) While appellant’s prior performance on parole had been satisfactory, several other factors cited by the probation officer supported the imposition of a prison sentence: the nature of the crimes was serious, the defendant was an active participant in the crimes, he inflicted emotional harm on the victims, and he was likely to be a danger to others if not imprisoned. (Cal. Rules of Court, rule 4.414(a)(1), (4), (6), (b)(8).) The court reasonably concluded that the compulsive nature of appellant’s conduct made him a risk to public safety if placed on probation.
Nor did the court abuse its discretion by selecting the middle term on the principal count, which involved the 12-year-old victim. (People v. Sperling (2017) 12 Cal.App.5th 1094, 1102.) As the court observed, the conduct by appellant underlying that count (exposing himself to a minor and attempting to grab her) was extremely troubling and involved conduct similar to his prior violation of section 288. The consecutive sentence imposed on the subordinate count was appropriate because it was committed at a different time and place and involved a different victim. (Cal. Rules of Court, rule 4.425(a)(3).)
We are satisfied that appellant’s appointed attorney has fully complied with the responsibilities of appellate counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 283.)
III. DISPOSITION
The judgment is affirmed.



NEEDHAM, J.



We concur.




SIMONS, ACTING P.J.




BRUINIERS, J.