P. v.
Filed 7/16/13 P. v. Moreno CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE GARCIA MORENO,
Defendant and Appellant.
B245776
(Los Angeles
County Super.
Ct.
No. KA097708)
APPEAL from
a judgment of the Superior Court
of
County, Steven D. Blades, Judge. Affirmed.
Richard L.
Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
_________________________________
Defendant and appellant Jose Garcia Moreno entered a no
contest plea to committing a lewd and lascivious act on a child under the age
of 14 in violation of Penal Code section 288.
defendant would receive a suspended sentence of eight years in
years, contingent on defendant receiving a favorable psychological evaluation
report under section 288.1.
name="_ftnref2" title="">[2] If the section 288.1 report was unfavorable,
defendant would receive the low term of three years in state prison. Two remaining charges were to be dismissed
pursuant to the plea agreement.
Armando de
Armas, Ph.D., prepared the section 288.1 report for the trial court. He concluded defendant presented a moderate
to high risk of recidivism. Dr. de Armas
based his conclusion on defendant’s insistence that he had no psychological
problems and no need for treatment, although he was willing to participate in
court-ordered treatment. Defendant
displayed no symptoms of a mental
disorder. The allegation that
defendant forced the child victim to watch pornography, and the presence of pornography
in the home, was also of concern to the doctor.
Finally, Dr. de Armas relied on defendant’s statement that he had no
opinion as to how a child sexual assault victim could be harmed.
The
prosecutor argued for imposition of a three-year prison sentence. Defense counsel advocated for probation. The trial court was unwilling to take a
chance on probation based on the assessment of the likelihood of recidivism. The court denied defense counsel’s request to
obtain a second section 288.1 report. Based on the report, the court found defendant
ineligible for probation. Defendant was
sentenced to state prison for the low term of three years. The two remaining counts were dismissed.
Defendant
filed a timely notice of appeal from
the sentence imposed after his no contest plea.
This court appointed counsel on appeal for defendant. On May 6, 2012, appointed counsel filed a
brief raising no issues but requesting this court to independently review the
record for arguable contentions under People
v. Wende (1979) 25 Cal.3d 436. This
court notified defendant by letter dated May
7, 2013, of his right to file a supplemental brief within 30
days. No supplemental brief has been
received.
We have
completed our independent review of the record and find no arguable
contentions. Defendant’s plea was
lawfully entered on terms favorable to defendant. The section 288.1 report supports the trial
court’s determination that probation was inappropriate in this case. The court did not abuse its discretion in
denying the request for a second section 288.1 report. The three-year
the case settlement agreement.
The
judgment is affirmed. (Smith
v. Robbins (2000) 528 U.S.
259.)
KRIEGLER,
J.
We concur:
TURNER,
P. J.
MOSK,
J.
name="_ftn1" title=""> [1] All statutory references are to the Penal
Code.
or lascivious act including any of the acts constituting other crimes provided
for in Part 1 of this code upon or with the body, or any part or member
thereof, of a child under the age of 14 years shall not have his or her
sentence suspended until the court obtains a report from a reputable
psychiatrist, from a reputable psychologist who meets the standards set forth
in Section 1027, as to the mental condition of that person.â€
