P. v. Villegas-Torres







Filed 11/18/10 P. v. Villegas-Torres CA1/2







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. JOSE A. VILLEGAS-TORRES, Defendant and Appellant.

A128475 (Mendocino County Super. Ct. No. SCUK-CRCR-1010431)

Appellant Jose A. Villegas-Torres appeals from a judgment and sentence entered on his plea of guilty to the felony charge of digital penetration of an unconscious person. His court-appointed attorney has filed a brief raising no issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. As our review discloses no arguable issue, we shall affirm the judgment and sentence.
PROCEEDINGS BELOW
On January 29, 2010 (all dates are in that year), appellant was charged by a criminal complaint with one count of lewd and lascivious conduct with a child under 14 years of age (Pen. Code, § 288, subd. (a)),[1] one count of digital penetration of an unconscious person (§ 289, subd. (d)(1)), one misdemeanor count of sexual battery (§ 243.4, subd. (e)(1)), and two misdemeanor counts of annoying or molesting a minor (§ 647.6, subd. (a)(1)).
On March 10, appellant pleaded guilty to the digital penetration charge, the section 288 charge was dismissed outright, and the charged misdemeanors were all dismissed with Harvey waivers. (People v. Harvey (1979) 25 Cal.3d 754. The sentence was left open to the court. Before imposing sentence, the court referred appellant for an evaluation pursuant to section 288.1.
The report was prepared by Dr. Douglas M. Rosoff, who is Board certified in psychiatry. Dr. Rosoff concluded that appellant “does not appreciate the potential psychological consequences of his behavior on the victims and remains a risk for reoffending,” and on that ground found he is “not amenable for a grant of probation pursuant to Penal Code section 288.1 and PC 1203.066.”
The 10-page report of the probation officer agreed with Dr. Rosoff’s conclusion and finding, and recommended that probation be denied and appellant sentenced to state prison for the aggravated term of eight years.
On April 23, appellant was sentenced to the eight-year term recommended by the probation department. The court also imposed restitution fines in the amount of $1,600 (§§ 1202.4, subd. (b), 1202.45), the fine imposed under the latter statute suspended pending completion of parole. The court also ordered the taking of a DNA sample pursuant to section 296, and AIDS testing pursuant to section 1201.1.
Appellant apparently did not seek a certificate of probable cause; the timely notice of appeal he filed on May 5 was based only on the sentence or other matters occurring after the plea that do not affect its validity.
FACTS
As appellant entered his guilty plea prior to the preliminary hearing, our understanding of the facts is based primarily on the probation report.
Appellant, a 52-year-old winery supervisor and long time resident of Sonoma County, was the live-in boyfriend of the mother of the complaining witness, Julia, who was 10 years of age at the time appellant was charged. Julia claimed that one night, while she was asleep, she awoke to find appellant penetrating her vagina with his finger. Julia said appellant’s sexual touchings began when she was seven. On about 10 occasions, appellant came into her bedroom after her mother had left for work and put his hands on her breasts over her clothing. She stayed still, and sometimes stopped breathing, hoping he would leave. Once when appellant put his hand under her shirt and she was trying to get him to stop, she asked why he did not stop and he told her he could not help himself. Julia wanted to tell someone what was happening to her, “but it was difficult.” As a result of appellant’s sexual advances, she experienced bad dreams, felt violated, and is no longer comfortable around older men.
The victim of the three dismissed misdemeanor charges was Julia’s older sister, Pilar, who was 17 when she spoke to the police and the probation officer. Starting when she was 12, appellant sexually touched her numerous times. The touching upon which the misdemeanor sexual battery charge was apparently based occurred at around 5:00 a.m. one morning when appellant entered Pilar’s room while she was in bed and put his hand on her hip and buttocks. Pilar described several other similar incidents, including getting on top of her while she was under the covers in bed, attempting to get into bed with her and placing his hands under her shorts, and patting her buttocks while she was brushing her teeth. The dismissed molestation charges were evidently based on an incident in which appellant bought Pilar a box of candy on Valentine’s Day and told her “Te amo,” and another incident in which appellant took Pilar horseback riding and tried to rub her leg while adjusting her saddle.
When interviewed at the county jail after his arrest, appellant said he felt bad for the victims’ mother, and that his respect for her prevented “more things” from happening to Julia and Pilar. Appellant also felt he “didn’t cause great danger” to Julia and Pilar because “I didn’t do anything to them.” At the same time, appellant answered “yes” when asked if he touched his victims in “an inappropriate manner,” if he felt the manner in which he touched them was “wrong,” and whether his conduct was “harmful” to Julia and Pilar. Probation Officer Plaza, who was present at this interview, stated at the sentencing hearing that “I was deeply disturbed by [appellant’s] lack of sincere remorse. The defendant did plead guilty, but there was not much sincerity behind it.”
At the sentencing hearing, after the matter was submitted, the court noted the “long term consequences” of appellant’s acts for both victims, who appeared to the court to suffer serious psychological damage. The court also noted the offense to which appellant plead was not an isolated incident and appellant’s conduct was “ongoing” for many years. The court also found the conduct was planned and sophisticated. For these reasons, and also due to Dr. Rosoff’s finding that appellant is “not amenable for a grant of probation pursuant to Penal Code section 288.1 and PC 1203.066,” the court found probation was not appropriate.
Allowing that there were mitigating factors—appellant’s age, the absence of any prior criminal record, the early plea, and that most of appellant’s acts constituted misdemeanors—the court felt that the aggravating factors predominated; particularly the “callous” nature of the crimes, the vulnerability of the victims, the ongoing nature of the criminal conduct, and Dr. Rosoff’s conclusions that appellant did not understand the serious psychological consequences of his acts for his victims and that he presented a risk to others.
DISCUSSION
Because appellant’s notice of appeal is based on the sentence or other matters occurring after his plea that do not affect the validity of the plea, we may consider only issues that would not require a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
Having carefully reviewed the record, we conclude there are no such issues.
The sentence imposed is authorized by law and conforms to the terms of the plea agreement.
Nothing in the record suggests appellant may not be competent to stand trial.
Appellant was at all times represented by competent counsel who protected his rights and interests.
Accordingly, our independent review discloses no arguable issue requiring further briefing.
DISPOSITION
The judgment and sentence imposed are affirmed.





_________________________
Kline, P.J.


We concur:


_________________________
Haerle, J.


_________________________
Lambden, J.

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