P. v. Rojo

Filed 1/9/07  P. v. Rojo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  Michael A. Knish, Temporary Judge.  (Pursuant to Cal. Const., art. VI, § 21.)  Affirmed.

            Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant.

            No appearance for Plaintiff and Respondent.

            Defendant pled guilty to committing a forcible lewd and lascivious act on a minor.  (Pen. Code, § 288, subd. (b)(1).)  Following the denial of his motion to withdraw his plea,

 he was sentenced to the agreed-to term of 8 years in prison.  As part of his plea bargain, he waived his right to appeal.  There is no certificate of probable cause in the record before this court.

Facts

            On July 24, 2005, defendant joined one female and three other male companions and the 13 year old victim at a Fontana parking lot. The female, defendant and one of the other men, the latter two being armed, forced the victim to drink beer.  All four of the men bragged about being in a gang, which frightened the victim.  Defendant escorted the victim to the truck in which they had arrived, where defendant forced her to orally copulate him.

Defendant's Contentions

            Defendant contends that his attorney below did not adequately explain the plea bargain to him, and pressured him to accept it and told him if he did not accept it, he would do 68 years in prison, as he had no chance at trial.  He also asserts that he had limited reading ability and counsel lied every time defendant asked him what something meant.

            Defendant was charged with four counts of forcible lewd and lascivious acts on a minor, three counts of forced oral copulation, and one count each of forced sodomy, false imprisonment by violence, contributing to the delinquency of a minor and dissuading a witness by force or threats.  Gang allegations were made as to two of the offenses.  At the hearing on defendant's motion to withdraw his plea, counsel specially appointed for defendant stated, and the trial court agreed, that defendant faced a 68 year sentence if convicted of all charges.  A reading of the preliminary hearing transcripts suggests that this was a distinct possibility.

            At the taking of the plea, defendant told the trial court that he had initialed a number of provisions in the written change of plea form and had signed the form.  He acknowledged having gone over it with his attorney and he stated he had no questions.  His attorney stated that he felt he had had enough time to talk to defendant about the bargain and he felt defendant understood his rights and the consequences of his plea.  Defendant told the trial court that he felt like he knew what he was doing.  Defendant's statements in the transcripts before this court, a copy of his letter to the trial judge requesting withdrawal of his plea bargain and his personal supplemental brief before this court indicate that defendant has no trouble understanding or writing English. 

            At the taking of the plea, defendant told the trial court that no one had used any kind of pressure to get him to plead guilty.

            Counsel specially appointed to represent defendant in his motion to withdraw his plea concluded after extensive review of the discovery provided and discussion with defendant's regular counsel and with defendant, that there was no legal grounds for withdrawal, but, rather, merely â€