P. v. Torres

Filed 10/16/06 P. v. Torres CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Salvador Torres appeals from a conviction entered upon a negotiated plea of nolo contendere. His court-appointed counsel has briefed no issues and asks this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

PROCEEDINGS BELOW

An information filed in San Mateo County Superior Court charged appellant with 12 counts of committing a lewd or lascivious act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)),^[1] each of which was alleged to have occurred between September 1, 2002 and February 5, 2003, and all but two of which were alleged to have consisted of an act of sexual intercourse. Count 11 alleged an act of digital penetration and count 12 alleged kissing. Six additional counts charged appellant with the commission of lewd acts on a minor 14 years of age and 10 years younger that the defendant (§ 288, subd. (c)(1)), all of which offenses were alleged to have been committed between February 6 and May 9, 2003.

On October 3, 2003, appellant pleaded not guilty to all counts. A little over two years later, on October 24, 2005, appellant withdrew his plea of not guilty to counts 1 through 9, and entered a plea of no contest to those charges. The remaining counts were all dismissed. The colloquy between and among the court, appellant, and counsel, and appellant’s written plea form, specified that a state prison commitment would not exceed 14 years.

At the sentencing hearing on December 2, 2005, the court denied probation and imposed a 14-year state prison sentence, consisting of the six-year midterm on count 1, with consecutive subordinate terms of two years each on counts 2 through 5, and concurrent terms of two years on counts 6 through 9. At the conclusion of the sentencing hearing, the court stated that consecutive sentences were imposed because each of the offenses alleged in counts 2 through 5 constituted a separate and distinct offense.

Appellant was granted presentence credit of 934 actual days served and 140 days of good time credit, for a total of 1,074 days. The court ordered genetic marking (§ 296); HIV testing (§ 1202.1); restitution in the amount of $12,002; a $200 restitution fine and 10 percent collection fee (§ 1202.4); a fine of $200 stayed pending successful completion of parole (§ 1202.45); a court security fee of $20; and sexual offender registration (§ 290).

Appellant’s timely notice of appeal, filed on January 27, 2006, specified that the appeal is not simply from the sentence (Cal. Rules of Ct., rule 30(b)(4)(B)), but also challenges the validity of the plea.

In order to enable the latter challenge, the notice of appeal included a request for a certificate of probable cause. The handwritten request related that appellant asked defense counsel for documentation “of what I was being accused of and a update of what he had investigated” so that appellant could “analyze the progress of my case.” Due to counsel’s failure to provide such documentation, appellant no longer had confidence in his representation. Appellant stated that on the day scheduled for trial he told counsel he wanted to ask the judge to appoint a new attorney, but counsel responded by discussing the plea offer, which appellant claimed had “changed a little.” The request for certificate of probable cause is confusing, but the gist of it appears to be that at some unspecified time “the judge had offered me an offer of (14) [years], and if I signed that my sentencing would be of (6) or (8) [years], but only if I accept it at that moment and if not we would go to trial.” Appellant stated he wanted to talk to the judge to “tell him that I need another attorney” and also additional time to discuss the matter with his family. On the day of sentencing, counsel told appellant “that the offer had changed a little.” Appellant was told by the court “that he could not sentence me under the conditions that I had signed for on the offer, so he sentenced me to (14) [years].” The greater sentence than appellant assertedly expected “is the reason that I feel that my attorney did not represent me well and misguide[d] me while he was in cahoots with the D.A. during the 30 months of his representing me.” Appellant states that this “is the reason why I am appealing my case to see that it gets analyzed better and to see if the motive for my given time was proper and also why my attorney promised me things that were not true.”

The request for a certificate of probable cause was denied by the trial court on January 30, 2006.

FACTS

The facts are succinctly set forth in the report of the probation officer as follows: “[T]he defendant [a 33-year-old man] sexually abused a female victim from ages 11 to 14. The victim reported that on December 31, 2000, while she still lived in Mexico, she woke up to find the defendant on top of her, covering her mouth. The defendant pulled down the victim’s pants and put his penis in her vagina. He threatened the victim to not say anything or he would do something to her. In July 2002, the victim moved to the Bay Area and began living with his family in the same home as the defendant. The defendant wrote the victim cards and letters stating that [he] was in love with her and wanted to be with her. During September 2, 2002 through May 3, 2003, the defendant had sexual intercourse with the victim in the residence bathroom at approximately 3:00 a.m., one to three times per week.”

The probation officer recommended a state prison sentence not only because of the “numerous episodes of sexual intercourse during a period of approximately two and a half years,” but also because the victim, who was only 11 years old when the sexual abuse began, was “extremely vulnerable,” appellant, the victim’s uncle, “took advantage of a position of trust or confidence,” and appellant “has not expressed any remorse.”

DISCUSSION

Preliminarily, the trial court did not err in denying appellant’s request for a certificate of probable cause. At the hearing on October 24, 2005, before appellant entered his no contest plea, the court inquired at length of appellant whether he was familiar with and fully understood the content of the waiver of rights form he had executed, and its consequences, and appellant stated that he did.^[2] The court specifically asked appellant whether he understood that, though his no contest plea exposed him to a 24-year state prison sentence, “any state prison commitment that I intend to impose would be no more than 14 years,” and appellant said he did understand this. In addition to all of the other necessary admonitions given appellant, the court inquired whether he had any questions as to the sentence he would receive, whether any promises or representations had been made to him that differed from what the court had said, whether he was entering his pleas freely and voluntarily, and whether anybody was “forcing, threatening, [or] coercing” his pleas. Appellant answered “no” to all of these queries.

At the sentencing hearing on December 2, 2005, prior to imposition of the sentence, the court told defense counsel it had received and reviewed the sentencing memorandum he had filed, and wished to address the chief issue raised in that memo; namely, whether “[b]ecause the charges lack any specificity, and the date period alleged in them is the same for all charges, [appellant] should be sentenced on one count only, with the other sentences to be stayed pursuant to Penal Code section 654.” The trial judge pointed out that at the time he accepted appellant’s plea he inquired whether there was a factual basis for the offense alleged in each count, and that appellant represented “that, in fact, there was a factual basis for each of the counts.” Defense counsel thereupon acknowledged that “the Court is correct that obviously the sentencing bargaining aspect of this resolution of the case was between the defense . . . and the Court, and . . . did not involve, as such, the prosecution. And therefore, the understanding of the agreement by the Court is correct. And we have no issue or problem with the nine separate acts that are part of the plea disposition.” The trial judge then asked defense counsel whether he had discussed this particular issue with appellant, and whether appellant was aware that he remained exposed to the 14-year prison term indicated by the court at the previous hearing. Defense counsel told the court the he and appellant “had that opportunity earlier this morning. And he’s prepared to acknowledge that.”

Directing its attention to appellant, the court asked appellant to confirm that he had discussed the issue with counsel and understood that the court was not legally precluded from imposing a sentence in excess of six years. Appellant stated that he had discussed the issue with his attorney, and understood.

The record thus makes clear that the court below properly denied appellant’s request for a certificate of probable cause. Accordingly, this appeal is limited to the propriety of the sentence imposed.

Defense counsel expressed concern that the probation officer’s recommendation of a state prison term was based, in part, on appellant’s refusal to be interviewed by the probation department, which violated appellant’s Fifth Amendment right to silence. This concern was addressed by the court, which stated it would not rely on that factor. The sentence imposed is justified by undisputed facts and is consistent with the terms of the negotiated plea. There was no sentencing error.

Appellant was properly admonished by the court as to his rights.

Appellant’s mental competence is not questionable and he was represented by able counsel at all stages of the proceedings.

There are no legal issues that require further briefing.

DISPOSITION

The judgment and sentence imposed are affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

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Lambden, J.

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^[1] All statutory references are to the Penal Code.

^[2] The record, particularly the handwritten request for a certificate of probable cause, indicates appellant understands and speaks English. Nevertheless, the court made clear on the record that when appellant reviewed and discussed the waiver of rights form with his counsel, he also had the assistance of an interpreter.