P. v. Romero
Filed 5/17/13
P. v. Romero CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
RICARDO LUCERO ROMERO,
Defendant and
Appellant.
F065224
(Super.
Ct. No. F11904707)
THE COURT
name="_ftnref1" title="">*
APPEAL
from a judgment of the Superior Court of
County. James R. Oppliger and D.
Tyler Tharpe, Judges.
name="_ftnref2" title="">â€
Gregory M.
Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of
the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
Appellant,
Ricardo Lucero Romero, was charged in an information filed on April 2,
2012, with assault with intent to commit
rape (Pen. Code, § 220, count 1),
(c)(2)(A), count 2), and two counts of sexual penetration of a minor 14 years
of age or older (§ 289, subd. (a)(1)(C), counts 3 & 4). The information further alleged that
appellant had two prior prison term enhancements (§ 667.5, subd.
(b)).
On May 17,
2012, appellant entered into a plea
agreement in which he would admit counts 3 and 4, as well as the two prior
prison term enhancements, in exchange for the dismissal of counts 1 and 2. Appellant would be subject to a maximum
prison sentence of 22 years. Appellant
executed and initialed a felony advisement, waiver of rights, and plea form
indicating he would admit counts 3 and 4, as well as the two enhancements. Appellant acknowledged and waived his
plea, and agreed the police reports constituted a factual basis for his
plea.
Appellant also initialed a box
stating: “I have had enough time to
discuss my case and all possible defenses with my attorney.†Appellant’s trial counsel signed the form
under the heading “ATTORNEY’S STATEMENT,†acknowledging that counsel reviewed
the plea form with his client, explained his constitutional rights to
appellant, answered all of appellant’s questions concerning the plea, discussed
the facts of the case with appellant and the consequences of the plea, and
reviewed the elements of the offenses and potential defenses.
At the change of plea hearing,
appellant verified to the trial court that he executed and initialed the plea
form. The court explained to appellant
the consequences of his plea, including his Boykin/
court. The parties stipulated that the
police reports constituted the factual basis for the plea. Appellant pled no contest to counts 3 and 4
and admitted the two prior prison term enhancements. Pursuant to the plea agreement, the trial
court granted the prosecutor’s motion to dismiss counts 1 and 2.
On June 22, 2012, the trial court
sentenced appellant in counts 3 and 4 to the upper term of ten years, to be
served fully, separately, and consecutively pursuant to section 667.6,
subdivision (c). The court imposed two
consecutive sentences of one year for each prior prison term enhancement for a
total prison sentence of 22 years. The
court imposed a restitution fine of $5,280 and granted total custody credits of
470 days.
restitution for later determination.
Appellant did not obtain a certificate
of probable cause. Appellate counsel
has filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (
FACTS
At 2:15
a.m. on August 14, 2011, 16-year-old Confidential Victim (CV), was walking with
her friend, R.A., in the area of Fresno and Olive Streets in Fresno when
appellant exited his vehicle at a gas station and tried talking to CV. CV and R.A. tried to ignore appellant and
continued walking. Appellant followed
the two girls, who crossed the street to avoid appellant. Appellant grabbed CV, put his hand over her
mouth, and touched her anus and vagina through her clothing.
R.A. called
the police. CV bit appellant’s hand and
tried to move onto a fence and yelled for help.
Appellant grabbed CV and placed his penis into her mouth and moved her
head back and forth. CV scratched
appellant’s face with a fingernail. R.A.
knocked on the door of a nearby house, pleading for help. CV asked for help from people at a nearby
garage. Appellant assured the people
that CV was just going crazy. Appellant
got CV to the ground, put his hand down the back of her shorts inside her
underwear, and stuck a finger in CV’s anus and another finger in her vagina and
moved them back and forth for a few seconds.
Two men
walked up and told appellant to leave CV alone.
CV got up and ran away to her father’s house. Appellant was detained by the men. When police arrived, they observed that
appellant had scratches on his face.
Police noted that CV’s lip was swollen and her face had scratches and
red marks. Both of CV’s legs were
scratched. CV was brought back to the
scene and positively identified appellant as her assailant.
APPELLATE COURT REVIEW
Appellant’s
appointed appellate counsel has filed an opening
brief that summarizes the pertinent facts, raises no issues, and requests
this court to review the record independently.
(Wende, supra, 25 Cal.3d 436.) The
opening brief also includes the declaration of appellate counsel indicating
that appellant was advised he could file his own brief with this court. By letter on October 1, 2012, we invited
appellant to submit additional briefing.
Appellant
replied with a letter complaining that the victim’s mother got to state at
sentencing that the victim was not the same outgoing person she used to be,
lived in constant fear, and was afraid to leave her house. Appellant claims his relatives were not
allowed to speak at the hearing.
Appellant asserts he never admitted anything about the offenses charged
against him and he was misadvised by his attorney. Appellant denies waiving his rights and
asserts that he was railroaded by his attorney and the prosecutor.
There is no indication that during
the sentencing hearing appellant’s
relatives attempted to speak on his behalf and were denied the chance to do
so. The record clearly shows that
appellant was well aware of his Boykin/
plea form and in open court after an advisement by the trial judge. Appellant’s counsel signed a statement that
he advised appellant of his rights and potential defenses and appellant
initialed a box in the plea form that he had consulted his attorney. As part of the plea bargain, two other felony
sex offense charges that were also subject to consecutive sentencing were
dismissed. There is no evidence in the
record that appellant’s trial representation was inadequate.
Appellant
contends he did not admit any allegations.
Appellant, however, pled no contest to counts 3 and 4 in open court and
admitted them in the plea form. A guilty
plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People
v. Valladoli (1996) 13 Cal.4th
590, 601.) A guilty plea serves as a
stipulation that the People need not introduce proof to support the
accusation. The plea ipso facto supplies
both evidence and verdict and is deemed to constitute an admission of every
element of the charged offense. (
v. Chadd (1981) 28 Cal.3d 739,
748.)
A plea of nolo contendere (or no
contest) is legally equivalent to a guilty plea and also constitutes an
admission of every element of the offense pled.
(People v.
820-821.) We therefore reject
appellant’s contention he was not guilty or that there was no evidence against
him.
Finally, to the extent that
appellant’s letter can be construed as a challenge to the validity of the plea
agreement, he is barred from making such a challenge because he failed to
obtain a certificate of probable cause.
(People v.
77-79.) Defendants cannot set aside
their pleas merely because they change their minds or have buyer’s
remorse. (In re Vargas (2000) 83 Cal.App.4th 1125, 1143-1144;
After
independent review of the record, we have concluded there are no reasonably
arguable legal or factual issues.
DISPOSITION
The case is
remanded to the trial court for the limited purpose to correct clerical error
and amend the abstract of judgment to reflect the trial court’s order during
sentencing that appellant’s sentences on counts 3 and 4 were to run fully,
separately, and consecutively. The court
shall forward the amended abstract of judgment to the appropriate authorities. The judgment is affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Levy, J., and Gomes, J.
name="_ftn2" title="">†Judge
Oppliger presided over appellant’s change of plea hearing. Judge Tharpe sentenced appellant.
