P. v. Nieder

Filed 4/30/07 P. v. Nieder CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

After agreeing to a negotiated disposition, defendant Joseph John Nieder pleaded no contest to 13 counts alleging sexual offenses involving three minor girls. He unsuccessfully moved to withdraw his plea and was sentenced to 28 years in state prison. He filed a timely appeal. Defendants counsel filed an opening brief that raises no issues and asks this court for an independent review under People v. Wende (1979) 25 Cal.3d 436. Defendant was notified of his right to file a supplemental brief, but has not done so. We have reviewed the record on appeal, find that there are no arguable issues to be briefed, and affirm the judgment.

Discussion

At the preliminary hearing, two of the victims described in graphic detail multiple sex acts with the defendant occurring over several years and exposure to pornography. One of the young victims was the daughter of a woman with whom defendant was living. Defendant, 42 years old, did not want to put the victims and their families through the ordeal of a trial and agreed to a negotiated disposition of 28 years in state prison. The information alleged 21 counts, including violations of Penal Code section 288, subdivision (a) lewd and lascivious acts, Penal Code section 289, subdivision (j) sexual penetration, Penal Code section 288a, subdivision (c)(1) acts of oral copulation, and Penal Code section 311.4, subdivision (c) causing a minor to pose for photographs involving sexual conduct. On April 25, 2006, with the assistance of counsel, defendant completed a written waiver of rights form in which he stated that he was not under the influence of anything that impaired his ability to understand the proceedings. He agreed to plead no contest to 13 specified counts, and the other counts and enhancements were to be dismissed. The court questioned defendant about the agreement and his understanding of the agreement. Defendant acknowledged he was on antidepressant medication. Defendant confirmed that he did not want to put the girls and his parents through a trial. Defendant answered the courts questions in a direct way and pleaded no contest to 13 counts.

On May 11, 2006, defendant asked for and received new counsel to file a motion to withdraw his plea on the grounds that his mind was impaired when he agreed to the plea. The motion was heard and denied on November 2, 2006. The court heard testimony from Dr. Heiman, a jail psychiatrist concerning defendants medications, including Doxepin, an antidepressant and defendants mental status during the time of his plea. Dr. Rosoff, an expert in psychopharmacology, reviewed defendants jail medical records, the transcript of the plea hearing, and was of the opinion defendant was not impaired at the time of his plea. Defendant testified about feeling pressured and mixed up, but agreed he signed the waiver form and answered the courts questions at the time of his plea. The same judge who presided over the change of plea heard and denied the motion. Substantial evidence supports the trial courts decision.

Competent counsel represented defendant at all stages of the proceedings. There was no error in the sentencing proceedings or the sentence imposed. The court awarded custody credits and imposed appropriate fines.

The judgment is affirmed.

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Marchiano, P.J.

We concur:

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Stein, J.

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Margulies, J.

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